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You are here: BAILII >> Databases >> European Court of Human Rights >> BAGGETTA v. ITALY - 10256/83 [1987] ECHR 9 (25 June 1987) URL: http://www.bailii.org/eu/cases/ECHR/1987/9.html Cite as: (1988) 10 EHRR 325, [1987] ECHR 9

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In the Baggetta case*,

_______________

* Note by the Registrar: The case is numbered 13/1986/111/159.

The second figure indicate the year in which the case was

referred to the Court and the first figure its place on the

list of cases referred in that year; the last two figures indicate,

respectively, the case's order on the list of cases and of originating

applications (to the Commission) referred to the Court since

its creation.

_______________

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

Mr. R. Ryssdal, President,

Mr. J. Cremona,

Mrs. D. Bindschedler-Robert,

Mr. F. Matscher,

Mr. L.-E. Pettiti,

Mr. C. Russo,

Mr. J. Gersing,

and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold,

Deputy Registrar,

Having deliberated in private on 31 January and 19 May 1987,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The present case was brought before the Court by the European

Commission of Human Rights ("the Commission") on 13 March 1986, within

the three-month period laid down in Article 32 § 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 10256/83) against the Italian Republic lodged with

the Commission under Article 25 (art. 25) by Mr. Giuseppe Baggetta,

who is an Italian national, on 25 January 1983.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the Italian declaration recognising the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

purpose of the request was to obtain a decision from the Court as to

whether or not the facts of the case disclosed a breach by the

respondent State of one of its obligations under Article 6 § 1

(art. 6-1).

2. In response to the enquiry made in accordance with

Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he

wished to take part in the proceedings pending before the Court and

designated the lawyer who would represent him (Rule 30).

3. On 17 March 1986, the President of the Court decided that one

and the same Chamber of seven judges should consider the Capuano,

Baggetta and Milasi cases (Rule 21 § 6). The Chamber included, as ex

officio members, Mr. C. Russo, the elected judge of Italian

nationality (Article 43 of the Convention) (art. 43) and

Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)).

On 19 March 1986, the President of the Court drew by lot, in the

presence of the Registrar, the names of the other five members,

namely Mr. J. Cremona, Mrs. D. Bindschedler-Robert, Mr. F. Matscher,

Mr. L.-E. Pettiti and Mr. J. Gersing (Article 43 in fine of the

Convention and Rule 21 § 4) (art. 43).

4. Mr. Ryssdal assumed the office of President of the Chamber

(Rule 21 § 5). Having consulted, through the Registrar, the Agent of the

Italian Government ("the Government"), the Commission's Delegate and the

applicant's lawyer, he decided on 2 April that there was no need for

memorials to be filed at this stage (Rule 37 § 1).

Nevertheless, between 21 April and 10 September 1986, the Registrar

received the applicant's claims for just satisfaction and observations

on the matter from the Government and the Commission's Delegate. On

the President's instructions he also requested the Commission to

produce a number of documents; these were supplied on 24 April

and 23 May 1986.

On 4 April 1986, the President gave the applicant leave to use the

Italian language (Rule 27 § 3).

5. On 28 November 1986, after consulting, through the Registrar, the

Agent of the Government, the Commission's Delegate and the applicant's

lawyer, the President directed that the oral proceedings should open on

26 January 1987 (Rule 38).

6. The hearings were held in public in the Human Rights Building,

Strasbourg, on the appointed day. The Court had held a preparatory

meeting immediately beforehand.

There appeared before the Court:

- for the Government

Mr. L. Ferrari Bravo, Head of the Diplomatic Legal

Service of the Ministry of Foreign

Affairs, Agent,

Mr. D. Striani, avvocato,

Mr. G. Grasso, avvocato,

Mrs. L. Bianchi, magistrato, Counsel;

- for the Commission

Mr. A. Weitzel, Delegate;

- for the applicant

Mr. C. Corigliano, avvocato,

Mr. R.G. Milasi, avvocato, Counsel.

The Court heard addresses by Mr. Ferrari Bravo, Mr. Striani and

Mr. Grasso for the Government, by Mr. Weitzel for the Commission and

by Mr. Corigliano and Mr. Milasi for the applicant, as well as their

replies to its questions.

On the day of the hearings, the Government and the applicant filed

with the registry a number of documents requested by the Court.

Further documents were forwarded by them on 23 and 30 March 1987

respectively.

AS TO THE FACTS

7. Mr. Giuseppe Baggetta, who was born in 1955, lives in Reggio

Calabria.

On 27 November 1971, he was arrested at Cosenza with eight other

people after the sacking of a political club on the same day. The

public prosecutor's office began an investigation, and the applicant

was released on 28 January 1972. On 9 January 1973, the investigating

judge at Cosenza committed him and his co-defendants for trial at the

District Court of the same town on charges of possession of dangerous

weapons (porto in luogo pubblico di congegni micidiali), criminal

damage and arson (danneggiamento seguito da incendio) and - a lesser

offence - unlawful possession of clubs and knuckledusters (porto

abusivo di bastoni e noccoliere).

8. The trial was set down for 26 September 1978, but had to be

postponed as two of Mr. Baggetta's co-defendants were not well enough

to attend. The hearings scheduled for 26 February 1979 and

31 March 1980 were also postponed, because one of the defendants had

not been notified of the date of the first hearing and two had not

been notified of the date of the second one. The trial took place on

22 November 1982. In its judgment given on the same day and filed

with the registry on 7 December, the District Court sentenced

Mr. Baggetta in absentia to one year, eight months' imprisonment

(reclusione), suspended, and a fine (multa) of 250,000 lire for the

first offence; and it ruled that the second offence was covered by an

amnesty and the lesser offence was time-barred.

9. On 19 January 1983, the applicant lodged an appeal, claiming

that he had not been tried within a reasonable time as envisaged in

Article 6 (art. 6) of the Convention and that the proceedings

were a nullity. He also stated that he was born not in 1951, as the

decision at first instance had indicated, but in 1955.

The file reached the Catanzaro Court of Appeal on 16 June 1983.

On 5 October, that court notified the defendants of the date of the

hearing - 19 January 1984. At the end of the hearing the Court of

Appeal held that the charge against Mr. Baggetta of possession of

dangerous weapons could not be proceeded with, as the court was

granting him a "judicial pardon" (perdono giudiziale) as a minor. The

judgment was filed with the registry on 30 January 1984.

10. The applicant appealed on a point of law to the Court of

Cassation, which held on 19 December 1986 that the criminal proceedings

were time-barred. This judgment was filed with the registry on

17 February 1987.

11. Two other sets of criminal proceedings were taken against

Mr. Baggetta.

12. The first of these was instituted in Rome in 1974 and concerned

sixty-one people charged with having organised a political movement which

had undemocratic aims or, as was Mr. Baggetta's case, with having taken

part in the movement's activities.

In September 1974, the Rome public prosecutor's office sent the

applicant a "judicial notification" (comunicazione giudiziaria) and on

21 November 1975 issued a warrant for his arrest, which was executed

on 25 November.

On 5 June 1976, the Rome District Court found Mr. Baggetta not guilty,

and accordingly discharged him. He was released the same day.

On 13 March 1981, the Rome Court of Appeal ruled that the

prosecution's appeal was inadmissible as far as Mr. Baggetta was

concerned, as the ground of appeal in his case had not been argued in

sufficient detail. The judgment was filed with the registry on

27 April, and no further action was taken in the applicant's case.

13. The other prosecution was brought in Reggio Calabria in

respect of events in Reggio between October 1969 and May 1973, which

were set out in a police report of 17 May 1973.

On 9 January 1980, the investigating judge committed Mr. Baggetta and

thirty-four co-defendants for trial. On 31 March, the presiding judge

of the District Court summoned them to appear on 23 April 1980.

On 7 March 1983, the District Court ruled that Mr. Baggetta could not

be prosecuted, because he had already been tried in Rome for the same

offences (see paragraph 12 above). The judgment was filed with the

registry on 6 April 1983.

14. The criminal proceedings had repercussions on the applicant's

endeavours to find a job.

On 16 September 1974, Mr. Baggetta had been informed by the Head of

Personnel in the Milan regional directorate of Italian Railways that

he had passed a competition for skilled posts and that he should

submit within thirty days a number of supporting documents, including

a copy of his police record. As this showed that proceedings were

being taken against him, he was not allowed to take up his new duties

until the proceedings were concluded.

On 10 February 1983, the Head of Personnel confirmed that the

appointment remained suspended pending the outcome of the proceedings

in Cosenza and Reggio Calabria: the "good conduct" requirement for

access to a public-service post could not be regarded as having been

satisfied until the courts had given final decisions.

On 11 April 1983, the applicant informed Italian Railways that the

Reggio proceedings were over (see paragraph 13 above) and that the

prosecutor had not appealed against the decision of the Cosenza

District Court (see paragraph 9 above), so that any heavier sentence

was precluded. He therefore asked to be appointed immediately.

On 19 April 1983, Italian Railways replied that they had to await the

end of the proceedings in the Catanzaro Court of Appeal, and that the

fact that it was not legally possible to increase the sentence passed

at first instance was of no importance. They also intimated that they

would have to obtain a copy of the Rome District Court's decision

of 5 June 1976 (see paragraph 12 above).

15. On 19 February 1985, as Law no. 732 of 29 October 1984 had

abolished the good-conduct requirement, Mr. Baggetta renewed his

request.

On 28 March 1985, Italian Railways replied that the aforementioned Law

did not apply to competitions held before it had come into force, and

that the decision of the Court of Cassation therefore had to be

awaited.

In January 1987, Italian Railways acknowledged that the applicant

fulfilled the good-conduct condition and they asked him to undergo a

medical examination in order to check that he was fit to perform his

duties.

PROCEEDINGS BEFORE THE COMMISSION

16. Mr. Baggetta applied to the Commission on 25 January 1983

(application no. 10256/83). He complained of the slowness of the

proceedings in the Catanzaro Court of Appeal, of unjustified pre-trial

detention in connection with the prosecutions in Cosenza and Rome and

of loss of prospect of a job on account of the proceedings pending at

Catanzaro.

17. On 6 October 1983, the Commission declared the second and

third complaints inadmissible, but on 9 July 1984 declared the first

complaint admissible.

In its report of 4 December 1985 (made under Article 31 of the

Convention) (art. 31), it expressed the unanimous opinion that

the "reasonable time" envisaged in Article 6 § 1 (art. 6-1) had been

exceeded. The full text of the Commission's opinion is reproduced as

an annex to this judgment.

AS TO THE LAW

I. APPLICATION FOR THE CASE TO BE STRUCK OUT OF THE LIST

18. At the hearing the Government asked the Court to strike the

case out of the list under Rule 48 § 2 of the Rules of Court, which

provides:

"When the Chamber is informed of a friendly settlement, arrangement or

other fact of a kind to provide a solution of the matter, it may,

after consulting, if necessary, the Parties, the Delegates of the

Commission and the applicant, strike the case out of the list."

The Government contended that the applicant could no longer claim to

be a victim of a violation of the Convention owing to two events that

had occurred after the case was referred to the Court, namely the

Court of Cassation's judgment of 19 December 1986 holding that the

prosecution was time-barred (see paragraph 10 above) and the decision

to recruit Mr. Baggetta to a post on the railways, subject to a

medical examination (see paragraph 15 above).

According to the Commission's Delegate, on the other hand, the

applicant nonetheless remained a victim in respect of past events,

especially as the Italian Court of Cassation's ruling that the

criminal proceedings were time-barred was not designed to compensate

for the length of the proceedings.

The Court notes that in the instant case there has been neither a

friendly settlement nor an arrangement; it too considers that the two

new facts brought to its notice are not of a kind to provide a

solution of the matter and that a decision must accordingly be taken

on the merits (see, inter alia and mutatis mutandis, the Guzzardi

judgment of 6 November 1980, Series A no. 39, pp. 30-31, § 85).

II. THE MERITS

A. Alleged violation of Article 6 § 1 (art. 6-1) of the Convention

19. According to the applicant, the hearing of his case had taken

longer than the "reasonable time" envisaged in Article 6 § 1

(art. 6-1) of the Convention, which provides:

"In the determination of ... any criminal charge against him, everyone

is entitled to a ... hearing within a reasonable time by [a] ...

tribunal ..."

The Government contested this allegation, whereas the Commission

accepted it in substance.

1. Period to be considered

20. There was no dispute as to the period to be considered. It

began not on 27 November 1971, when Mr. Baggetta was arrested (see

paragraph 7 above), but only on 1 August 1973, when the Italian

declaration recognising the right of individual petition took effect.

In order to determine the reasonableness of the length of time which

elapsed after that date, regard must be had, however, to the state of

the case at that moment (see the Foti and Others judgment

of 10 December 1982, Series A no. 56, p. 18, § 53).

The period ended on 19 December 1986, the day on which the Court of

Cassation's judgment was given (see paragraph 10 above).

In sum, the period to be considered amounts to more than thirteen

years and four months.

2. Reasonableness of the length of the proceedings

21. The reasonableness of the length of proceedings has to be

assessed according to the circumstances of the case and having regard

to the criteria laid down in the Court's case-law (see, amongst other

authorities, the above-mentioned Foti and Others judgment, Series A

no. 56, p. 19, § 56).

22. Neither the complexity of the case nor the applicant's

attitude calls for any particular comment; nor did those appearing

before the Court deal with these aspects of the matter.

The same does not apply to the conduct of the relevant authorities.

According to the Commission, the final decision on the charge against

the applicant had taken so long that it fell to the respondent State

to come forward with an explanation. The explanation it gave in the

instant case, however, was not, in the Commission's view, such as to

demonstrate that the requirement of hearing within a "reasonable time"

had been complied with. In particular, the crisis situation which the

respondent State pleaded in its defence and which was due to the

excessive workload of the courts could scarcely be regarded as

temporary. Moreover, the respondent State had not taken prompt action

to remedy it.

Quoting statistics in support of their contentions, the Government

disputed the Commission's opinion. The measures they had taken

between 1978 and 1985 had, they claimed, been swift and sufficient;

besides, it was bound to take "some time" for them to have any effect

(see the Buchholz judgment of 6 May 1981, Series A no. 42, p. 21,

§ 61). The Government also pointed to the speed with which the appeal

proceedings had been conducted (see paragraph 9 above) and stated,

contrary to what the Commission maintained, that the crisis situation

at the Cosenza District Court lasted for less than nine years.

23. The Court agrees with the Commission. It points out first of

all that the Convention places the Contracting States under a duty to

organise their legal systems so as to enable the courts to comply with

the requirements of Article 6 § 1 (art. 6-1), including that of

trial within a "reasonable time"; nonetheless, a temporary backlog of

business does not involve liability on the part of the Contracting

States provided that they take, with the requisite promptness,

remedial action to deal with an exceptional situation of this kind

(see, for example, the Zimmermann and Steiner judgment of

13 July 1983, Series A no. 66, p. 12, § 29).

24. In the instant case it might be asked whether such a situation

did not arise from the political troubles the region was experiencing

at the time (see the above-mentioned Foti and Others judgment,

Series A no. 56, pp. 20-21, § 61). However that may be, the situation

does not justify the time which elapsed - more than nine years -

before the judgment of 22 November 1982; the period to be considered

was much longer than in other cases referred to by the Government,

which, besides, did not relate to a "criminal charge" (see the

above-mentioned Buchholz judgment, Series A no. 42; the

above-mentioned Zimmermann and Steiner judgment, Series A no. 66;

and the Guincho judgment of 10 July 1984, Series A no. 81).

At all events, the respondent State's endeavours to improve the

working conditions of the Calabria courts began only in 1978, roughly

seven years after the institution of the proceedings against the

applicant, who had been waiting for his case to be set down for trial

since 9 January 1973, when the judicial investigation was concluded

(see paragraph 7 above). Furthermore, despite the expeditiousness of

the Court of Appeal, the proceedings did not end until December 1986.

25. In the light of all the circumstances of the case, the Court

concludes that the applicant was not tried within a "reasonable time"

and that there was accordingly a violation of Article 6 § 1 (art. 6-1).

B. Application of Article 50 (art. 50)

26. Article 50 (art. 50) of the Convention reads as follows:

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising from

the ... Convention, and if the internal law of the said Party allows

only partial reparation to be made for the consequences of this

decision or measure, the decision of the Court shall, if necessary,

afford just satisfaction to the injured party."

At the hearing, the applicant's representative reiterated in substance

the claims for just satisfaction that had been submitted in writing

(see paragraph 4 above): it was alleged that Mr. Baggetta had

suffered substantial material loss and had sustained irreparable

non-pecuniary damage.

27. The applicant sought in the first place employment on the

railways with retrospective effect to 16 October 1974 or, subject to

certain conditions, in the Reggio Calabria Prefecture.

According to the Government, the Court did not have jurisdiction to

order that they should take a specific measure of this kind.

The Commission expressed no view on this matter.

The Court notes that Mr. Baggetta never lost his right to be employed

on the railways: his taking up his duties was merely postponed

pending the outcome of the various criminal proceedings against him.

And the Government stated that the Court of Cassation's 1986 judgment

removed the final obstacle to his recruitment. In these

circumstances, the Court does not find it necessary to rule on the

Government's plea of inadmissibility on this point.

28. The applicant also claimed two hundred million lire as "fair

compensation for damage and prejudice sustained" and, in addition,

reimbursement of his costs and expenses of unspecified amount; his

claim related to each of the proceedings opened against him, in Rome

and Reggio Calabria as well as Cosenza.

The Government argued that these claims were unfounded or, at least,

unreasonable and disproportionate. The Commission's Delegate

considered, on the other hand, that the postponement of Mr. Baggetta's

recruitment had caused him significant loss.

It has to be noted firstly, as regards the costs and expenses, that

the applicant had the benefit of legal aid before the Commission and

then before the Court.

In addition, it is only the prosecution instituted in Cosenza that is

relevant (see paragraphs 16-17 above). Yet the proceedings against

the applicant in Rome and Reggio Calabria also contributed to the

postponement of his taking up his duties (see paragraphs 12-13

and 14 in fine above); accordingly, the Court has to take account only

of material loss he may have suffered after April 1983, the date when

those proceedings were concluded. Nor is there anything to suggest

that Mr. Baggetta was unable to take up other paid work and thus

mitigate his material loss.

Mr. Baggetta also undoubtedly sustained non-pecuniary damage, in that

he was left in prolonged uncertainty as to the outcome of the

proceedings and their financial repercussions.

29. These various factors do not lend themselves in the present

case to precise quantification. The Court has taken them together

and, as required by Article 50 (art. 50), on an equitable basis

and awards the applicant compensation of fifteen million lire.

30. At the hearing, the applicant's lawyer requested the Court to

recommend the adoption by the respondent State of certain legislative

measures, but this request clearly falls outside the scope of the case

(see, mutatis mutandis, the Corigliano judgment of 10 December 1982,

Series A no. 57, p. 17, § 53).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Rejects the application for the case to be struck out of the list;

2. Holds that there has been a violation of Article 6 § 1 (art. 6-1)

of the Convention;

3. Holds that the respondent State is to pay to the applicant the sum

of fifteen million Italian lire (15,000,000 LIT) by way of just

satisfaction;

4. Rejects the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in

the Human Rights Building, Strasbourg, on 25 June 1987.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar