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You are here: BAILII >> Databases >> European Court of Human Rights >> COLACIOPPO v. ITALY - 13593/88 [1991] ECHR 8 (19 February 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/8.html Cite as: [1991] ECHR 8

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In the Colacioppo case*,

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 F. Matscher,

Mr L.-E. Pettiti,

Sir Vincent Evans,

Mr C. Russo,

Mr J. De Meyer,

Mr N. Valticos,

Mr A.N. Loizou,

Mr J.M. Morenilla,

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

Registrar,

Having deliberated in private on 2 October 1990 and

24 January 1991,

Delivers the following judgment, which was adopted on the

last-mentioned date:

______________

Notes by the Registrar

* The case is numbered 19/1990/210/270. The first number is the

case'sposition on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since

its creation and on the list of the corresponding originating

applications to the Commission.

** As amended by Protocol No. 8, which came into force on

1 January 1990.

*** The amendments to the Rules of Court which came into force on

1 April 1989 are applicable to this case.

_______________

PROCEDURE

1. The case was referred to the Court on 16 February 1990 by

the European Commission of Human Rights ("the Commission"), within

the three-month period laid down by Article 32 para. 1 and

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

in an application (no. 13593/88) against the Italian Republic

lodged with the Commission under Article 25 (art. 25) by an Italian

national, Mr Antonio Colacioppo, on 11 February 1987.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby Italy recognised the

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

object of the request was to obtain a decision as to whether the

facts of the case disclosed a breach by the respondent State of its

obligations under Article 6 para. 1 (art. 6-1).

2. In response to the enquiry made in accordance with Rule 33

para. 3 (d) of the Rules of Court, the applicant stated that he

wished to take part in the proceedings and designated the person

who would represent him (Rule 30). On 5 June 1990 the President of

the Court granted him leave to use the Italian language (Rule 27

para. 3).

3. On 21 February 1990 the President decided that, pursuant to

Rule 21 para. 6 and in the interests of the proper administration

of justice, this case and the cases of Motta, Manzoni, Pugliese

(I), Alimena, Frau, Ficara, Viezzer, Angelucci, Maj, Girolami,

Ferraro, Triggiani, Mori and Adiletta and Others* should be heard

by the same Chamber.

_______________

* Cases of Motta (4/1990/195/255), Manzoni (7/1990/198/258),

Pugliese (I) (8/1990/199/259), Alimena (9/1990/200/260), Frau

(10/1990/201/261), Ficara (11/1990/202/262), Viezzer

(12/1990/203/263), Angelucci (13/1990/204/264), Maj

(14/1990/205/265), Girolami (15/1990/206/266), Ferraro

(16/1990/207/267), Triggiani (17/1990/208/268), Mori

(18/1990/209/269), Adiletta and Others (20/1990/211/271-273)

_______________

4. The Chamber to be constituted for this purpose included

ex officio 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 para. 3 (b)). On 26 March 1990, in

the presence of the Registrar, the President drew by lot the names

of the other seven members, namely Mr F. Matscher,

Mr L.-E. Pettiti, Sir Vincent Evans, Mr J. De Meyer,

Mr N. Valticos, Mr A.N. Loizou and Mr J.M. Morenilla (Article 43 in

fine of the Convention and Rule 21 para. 4) (art. 43).

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

(Rule 21 para. 5) and, through the Registrar, consulted the Agent

of the Italian Government ("the Government"), the Delegate of the

Commission and the applicant's lawyer on the need for a written

procedure (Rule 37 para. 1). In accordance with the order made in

consequence, the Registrar received the applicant's memorial

on 11 July 1990 and the Government's memorial on 31 July. By a

letter received on 31 August, the Secretary to the Commission

informed the Registrar that the Delegate did not consider it

necessary to submit observations in writing.

6. On 29 August 1990 the Chamber decided to dispense with a

hearing, having found that the conditions for such derogation from

the usual procedure were satisfied (Rules 26 and 38).

7. On 31 August 1990 the Commission produced the file on the

proceedings before it, as requested by the Registrar on the

President's instructions.

8. On 3 and 25 October, respectively, the registry received

the observations of the Commission and the Government on the

applicant's claims for just satisfaction.

AS TO THE FACTS

9. Mr Antonio Colacioppo, an Italian national, resides at

Ascoli Piceno where he is head of the National Pensions Institute

(INPS). The facts established by the Commission pursuant to

Article 31 para. 1 (art. 31-1) of the Convention are as follows

(paragraphs 14-27 of its report, see paragraph 11 below):

"14. On 1 September 1977 the applicant received, from the Ascoli

Piceno public prosecutor's office, judicial notice of the fact that

he was under investigation for the offence of extortion

('concussione', Article 317 of the Criminal Code - CC) with the

aggravating circumstance that it was a continuing offence

(Article 81 of the CC). The prosecution was based on the findings

of a police report of 30 August 1977 drawn up as a result of

complaints lodged by two ladies, F. and T., who claimed that the

applicant, who was responsible for running a State-subsidised

vocational training course, had paid them less than the amount to

which they were entitled, but had made them sign receipts for sums

substantially larger than those they had actually received.

15. On 28 November 1977 the public prosecutor's office issued a

warrant for the arrest of the applicant, who was arrested that day.

He was questioned about the incidents of which he had been accused

on a date which is not known.

16. On 23 December 1977 the public prosecutor's office transmitted

the documents to the investigating judge so that he could take up

the case in accordance with the official procedure. The

investigating judge filed his conclusions on 24 December 1977 and

the public prosecutor lodged his submissions on 11 January 1978.

17. The applicant was released on 20 January 1978 further to an

order issued on 13 January 1978 by the Ancona Court of Appeal in

response to his appeal against the investigating judge's refusal to

accede to his request for provisional release.

18. The applicant was committed for trial to the Ascoli Piceno

District Court by means of a decision taken by the Ascoli Piceno

investigating judge on 10 March 1978, for the offences of extortion

(Article 317 of the CC) and misappropriation detrimental to private

individuals (Article 315 of the CC).

19. The applicant was summoned to appear at a hearing to be held at

the Ascoli Piceno District Court on 15 June 1983, by an order

dated 9 February 1983.

A second hearing should have taken place on 30 November 1983, but

the applicant's counsel requested that it be postponed. The

request was granted.

20. In any event, on 23 December 1983 the applicant asked the Court

of Cassation to refer the case to another court on the grounds

that, in view of the way in which the trial and other related

proceedings in which he was either the defendant or the party

claiming damages, were being conducted and in view of the fact that

he was on bad terms with one of the prosecutors, it could

reasonably be assumed that the Ascoli Piceno District Court lacked

the objectivity needed to deal with his case impartially.

By a judgment dated 24 February 1984, filed with the registry

on 10 April 1984, the Court of Cassation rejected this request.

21. At the hearing on 11 April 1984 the defence entered various

submissions to the effect that the decision to commit the applicant

for trial and the summons ordering him to appear were void. All

these submissions were rejected in a decision dated 11 April 1984.

22. There were also hearings at the Ascoli Piceno District Court

on 18 April and 4 June 1984. By a judgment dated 4 June 1984,

filed with the registry on 30 June 1984, the applicant was found

guilty of embezzling public funds ('peculato') with the aggravating

circumstance of having persisted in doing so, and was sentenced to

two years and one month's imprisonment, fined 300,000 lire and

temporarily prohibited from holding public office for a period

equal to the length of the prison sentence he had been given.

23. The applicant appealed against the judgment.

By a judgment dated 9 April 1985 (filed with the registry on

18 May 1985), the Ancona Court of Appeal acquitted the applicant on

the grounds that there was insufficient evidence to convict him,

after two hearings held on 19 February and 9 April 1985.

24. The prosecution and the accused appealed against the judgment

to the Court of Cassation.

The prosecution considered that no grounds had been given for

acquitting the applicant for lack of evidence.

The applicant argued that his acquittal should have been

unqualified because the evidence and statements by witnesses showed

that he had not committed the offences. In any event, the

judgments of the lower courts should have been quashed because he

had been tried for offences other than those for which he had been

committed for trial.

25. By a judgment dated 10 April 1986, filed with the court

registry on 25 August 1986, the Court of Cassation upheld, in part,

the applicant's appeal and therefore quashed the judgment of the

Ascoli Piceno District Court and the Appeal Court judgment. It

ordered the referral of the file to the Ascoli Piceno public

prosecutor's office for action.

26. The applicant then requested that the case be referred to

another court on the grounds that there were legitimate reasons for

distrusting the Ascoli Piceno judicial authorities (Article 55 of

the Code of Criminal Procedure).

By a decision dated 9 December 1986 the Court of Cassation acceded

to his request and referred the case to the Perugia judicial

authorities.

27. On 12 November 1987 the Perugia investigating judge, applying

an Amnesty Act that had been passed in the meantime by parliament,

discharged the accused on the following grounds:

'In the present case there is no question of embezzlement of public

funds, but of fraud with an aggravating circumstance. Although

this is automatically a ground for prosecution, the offence is

covered by the latest Amnesty Act. Because prosecution of the

offence is statute-barred because of the amnesty, it is not

possible to investigate the merits of the prosecution further.

Moreover, it is not possible to issue one of the decrees provided

for in Article 152 of the Code of Criminal Procedure, since, in the

present case, there is no 'evidence proving that the events did not

take place, that the accused did not perpetrate them or that they

are not punishable by law ...'."

PROCEEDINGS BEFORE THE COMMISSION

10. In his application of 11 February 1987 to the Commission

(no. 13593/88) Mr Colacioppo criticised his arrest and detention on

remand. He also complained of the length of the proceedings,

relying on Article 6 para. 1 (art. 6-1) of the Convention.

11. On 5 September 1989 the Commission declared the application

admissible as regards the last complaint. On 7 October 1988 it had

declared it inadmissible for the rest. In its report of

5 December 1989 (Article 31) (art. 31), it expressed the unanimous

opinion that there had been a violation of Article 6 para. 1

(art. 6-1). The full text of the Commission's opinion is

reproduced as an annex to this judgment*.

_______________

* Note by the Registrar: For practical reasons this annex will

appear only with the printed version of the judgment (volume 197-D

of Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)

12. The applicant claimed that his case had not been examined

within a "reasonable time" as required under Article 6 para. 1

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

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

everyone is entitled to a ... hearing within a reasonable time by

[a] ... tribunal ... "

The Government disputed this view, whereas the Commission

subscribed thereto.

13. The period to be taken into consideration began on

1 September 1977, the date on which the applicant received a

judicial notification. It ended, at the earliest, on

12 November 1987, with the pronouncement that there was no case to

answer, and, at the latest, on 15 November 1987, when the

time-limit for an appeal on a point of law by the prosecuting

authorities against that pronouncement expired (Article 594 of the

Code of Criminal Procedure).

14. The participants in the proceedings presented argument as

to the way in which the various criteria employed by the Court in

this context - such as the degree of complexity of the case, the

conduct of the applicant and that of the competent authorities -

should apply in the present case.

15. Article 6 para. 1 (art. 6-1) of the Convention guarantees

to everyone who is the object of criminal proceedings the right to

a final decision within a reasonable time on the charge against

him.

The Court points out that, under its case-law on the subject, the

reasonableness of the length of proceedings is to be assessed in

the light of the particular circumstances of the case. In this

instance the circumstances call for an overall assessment (see,

mutatis mutandis, the Obermeier judgment of 28 June 1990, Series A

no. 179, p. 23, para. 72).

At times the proceedings did progress at a normal rate, in

particular at the stage of the cassation proceedings, but the Court

cannot regard a lapse of time of more than ten years and two months

as "reasonable" in the instant case because it was not a complex

one and the applicant's conduct did not give rise to any

significant delays.

There has therefore been a violation of Article 6 para. 1

(art. 6-1).

II. APPLICATION OF ARTICLE 50 (art. 50)

16. Under Article 50 (art. 50),

"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."

Mr Colacioppo claimed 500,000,000 Italian lire for damage and for

the costs incurred before the national courts.

He did not seek the reimbursement of costs and expenses relating to

the proceedings before the Convention organs and this is not a

matter which the Court has to examine of its own motion (see, inter

alia, the Huvig judgment of 24 April 1990, Series A no. 176-B,

p. 57, para. 38).

17. The Commission noted in the first place that his case had

been amnestied. It also pointed out that part of the alleged

pecuniary damage and costs derived from the very fact that

proceedings had been instituted and not from their length, that

another part was hypothetical and that moreover the applicant had

not supplied information on the basis of which an assessment could

be made. On the other hand, he had, in its view, sustained

non-pecuniary damage.

In the Government's opinion, at the most it would be appropriate,

if a violation were to be found, to award a modest sum for

non-pecuniary damage.

18. The Court agrees with the view expressed by the Commission

and, making an assessment on an equitable basis, it awards the

applicant 20,000,000 lire in respect of non-pecuniary damage.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 6 para. 1

(art. 6-1) of the Convention;

2. Holds that the respondent State is to pay to Mr Colacioppo

20,000,000 (twenty million) Italian lire for non-pecuniary damage;

3. Dismisses 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 19 February 1991.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar