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You are here: BAILII >> Databases >> European Court of Human Rights >> GIROLAMI v. ITALY - 13324/87 [1991] ECHR 12 (19 February 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/12.html Cite as: [1991] ECHR 12

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In the Girolami 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 15/1990/206/266. The first number is the

case's position 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 Article 11 of Protocol No. 8 (P8-11), 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. 13324/87) against the Italian Republic lodged with

the Commission under Article 25 (art. 25) by an Italian national,

Mr Dino Girolami, on 8 October 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 lawyer

who would represent him (Rule 30). On 19 March 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, Ferraro,

Triggiani, Mori, Colacioppo 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), Ferraro (16/1990/207/267), Triggiani

(17/1990/208/268), Mori (18/1990/209/269), Colacioppo

(19/1990/210/270), 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 2

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 Dino Girolami, an Italian national, resides in Florence.

He is a butcher's assistant. The facts established by the

Commission pursuant to Article 31 para. 1 (art. 31-1) of the

Convention are as follows (paragraphs 13-19 of its report, see

paragraph 11 below):

"13. The applicant and another person were prosecuted for fraud

involving a sum of approximately 50 million Italian lire to the

detriment of a co-operative society on the occasion of a

transaction concerning the sale of meat produced by the

co-operative.

14. Following a complaint by the co-operative society on

10 December 1977, the police drew up a report dated 15 March 1978

which was transmitted to the public prosecutor's office in Cuneo.

The public prosecutor's office instituted proceedings

against the applicant and a co-defendant for aggravated fraud. The

warrant for the applicant's arrest issued on 25 March 1978 could

not be executed, as the applicant had fled.

15. On 16 May 1978 the investigation was entrusted to an

investigating judge. On 9 January 1979 counsel for the applicant

requested the investigating judge to withdraw the warrant for the

applicant's arrest (Article 277 of the Code of Criminal Procedure).

The investigating judge withdrew it by decision of 30 May 1979. On

19 November 1979, the applicant appeared before the investigating

judge and was questioned. On 5 January 1980 the public

prosecutor's office at Cuneo filed its charges and asked that the

applicant and his co-defendant be committed for trial.

16. On 24 May 1980 the investigating judge at Cuneo committed

the applicant for trial before the Cuneo District Court. The first

hearing before the Cuneo court, which had initially been fixed for

11 January 1985, was adjourned at the request of defence counsel,

who on that date was involved in another trial. On 14 January 1985

the judge fixed the hearing for 14 June 1985. At this hearing,

counsel for the applicant requested an adjournment to enable the

applicant, who was serving a prison sentence elsewhere and had at

the last moment reversed his decision not to appear, to take part

in the proceedings. The hearing was adjourned to 11 April 1986.

At this hearing counsel for the co-defendant, with the backing of

counsel for the applicant, objected that the Cuneo court did not

have territorial jurisdiction.

17. In a judgment of 11 April 1986 (filed with the registry on

24 April), the Cuneo court held that it did not have jurisdiction

and ordered the file to be transmitted to the public prosecutor's

office at Livorno. The file reached the public prosecutor's office

at Livorno on 19 June 1986.

18. The hearing before the Livorno District Court, which had

originally been fixed for 7 January 1987, took place on

3 April 1987 because the court was obliged to order witnesses to be

brought by force to the hearing.

19. On the same date, the Livorno court acquitted the applicant

because of insufficient evidence and convicted his co-defendant of

fraud. The judgment, filed with the registry on 11 May 1987,

became final with regard to the applicant on

3 May 1987, since no appeal had been made against it."

PROCEEDINGS BEFORE THE COMMISSION

10. In his application of 8 October 1987 to the Commission

(no. 13324/87) Mr Girolami complained of the length of the

proceedings; he relied on Article 6 para. 1 (art. 6-1) of the

Convention.

11. On 5 September 1989 the Commission declared the application

admissible. 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 196-E

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

25 March 1978, the date on which the public prosecutor's office

ordered the applicant's arrest. It ended on 3 May 1987; the period

for which the applicant was on the run, namely from

25 March 1978 to 30 May 1979, should however be excluded from the

calculation.

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).

The case was not a complex one and there was a long period of

stagnation (24 May 1980 - 11 January 1985). The applicant's flight

undoubtedly served to slow down the progress of the proceedings;

nevertheless the Court cannot regard as "reasonable" in the instant

case the remaining lapse of time, namely approximately eight years.

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."

A. Damage

17. Mr Girolami sought compensation of 3,000,000 Italian lire in

respect of non-pecuniary damage. He cited the psychological

pressure caused by the wait for the final decision and the fear of

being sentenced to a further term of imprisonment in addition to

that which he was already serving in 1985.

18. The Commission did not formulate any comments, whereas the

Government took the view that at the most it would be appropriate,

if a violation were to be found, to award a modest sum in respect

of non-pecuniary damage.

19. The Court accepts that the applicant may have sustained

non-pecuniary damage, but, in the circumstances of the case, it

considers that the finding of a violation of Article 6 para. 1

(art. 6-1) constitutes in itself sufficient just satisfaction for

the purposes of Article 50 (art. 50).

B. Costs and expenses

20. The applicant sought the reimbursement of a total of 1,210,000

lire for costs and expenses relating to the proceedings before the

Convention organs, the only proceedings which fall to be taken into

account in this respect.

21. Having regard to the information available to it, the

observations submitted and its case-law in this field, the Court

awards him the full amount.

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, as regards non-pecuniary damagethe present

judgment constitutes in itself sufficient just satisfaction

for the purposes of Article 50 (art. 50);

3. Holds that the respondent State is to pay to Mr Girolami

1,210,000 (one million two hundred and ten thousand) Italian

lire for costs and expenses.

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