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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> MILASI v. ITALY - 10527/83 [1987] ECHR 11 (25 June 1987)
URL: http://www.bailii.org/eu/cases/ECHR/1987/11.html
Cite as: (1988) 10 EHRR 333, [1987] ECHR 11
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In the Milasi case*,
_______________
* Note by the Registrar: The case is numbered 14/1986/112/160.
The second figure indicates 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. 10527/83) against the Italian Republic lodged with
the Commission under Article 25 (art. 25) by Mr. Elio Milasi, who is
an Italian national, on 18 July 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 25 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. Grasso and
Mrs. Bianchi 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 23 and 26 January, the applicant and the Government filed a number
of documents requested by the Court.
AS TO THE FACTS
7. Mr. Elio Milasi, who was born in 1953, lives in Reggio
Calabria. On 17 May 1973, the police laid an information against him
and thirty-four other people before the public prosecutor's office in
that city alleging criminal association (Article 416 of the Criminal
Code). The information related to Mr. Milasi's having taken part, as
a member of a political movement with undemocratic aims, in
disturbances and acts of violence in Reggio from October 1969
to May 1973.
8. On 18 June 1973, the public prosecutor's office informed the
applicant that criminal proceedings were being instituted against him.
On 6 April 1974, the office asked the investigating judge to open a
full formal investigation. The judge questioned Mr. Milasi on
9 March 1978 and, on 3 November 1978, requested the public
prosecutor's office to make its final submissions. These were filed
on 30 November 1978. The investigating judge committed Mr. Milasi and
his co-defendants for trial on 9 January 1980. On 31 March, the
presiding judge of the Reggio District Court summoned them to appear
before his court on 23 April 1980. However, the trial was adjourned,
as a mark of respect for a public prosecutor who had recently died.
9. After being relisted, the trial began on 6 July 1981. The
District Court held several hearings, amended the charge of criminal
association to one of re-establishing the Fascist party and then,
on 7 March 1983, gave judgment; it acquitted Mr. Milasi on the ground
that he was covered by an amnesty under the terms of Presidential
Decree no. 413 of 4 August 1978. The judgment was filed with the
registry of the court on 6 April 1983.
10. In 1978, whilst the case was under investigation, the
applicant had applied to enter a competition to recruit middle-ranking
officers to the Guardia di finanza (Revenue Police), who, in the
course of their enquiries about him, became aware of the criminal
proceedings. On 1 March 1979, they asked the investigating judge's
office for a certificate to the effect that Mr. Milasi had been
committed for trial for an offence contrary to Article 416 of the
Criminal Code, stating that they needed the certificate for appending
to a ministerial decree excluding the applicant from the competition.
Such a decree was never issued, however, as the applicant had not sat
the written examination held on 13 January 1979.
PROCEEDINGS BEFORE THE COMMISSION
11. Mr. Milasi applied to the Commission on 18 July 1983
(application no. 10527/83). He alleged a breach of Article 15
(art. 15) of the Convention; he also complained of the length of the
criminal proceedings against him.
12. On 12 March 1985, the Commission declared the second complaint
admissible and the first inadmissible. 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. ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1)
13. 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.
A. Period to be considered
14. There was no dispute as to the period to be considered. It
began not on 18 June 1973, when the applicant was informed that the
proceedings were being instituted (see paragraph 8 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 7 March 1983, when the Reggio Calabria District
Court gave judgment (see paragraph 9 above).
In sum, the period to be considered amounts to more than nine years
and seven months.
B. Reasonableness of the length of the proceedings
15. 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).
No problem arises as regards the applicant's conduct, which in any
event was not criticised by the Government. On the other hand,
consideration has to be given to the complexity of the case, the
conduct of the judicial authorities and the background against which
the proceedings took place.
1. Complexity of the case
16. According to the Government, the case was complex for three
reasons, namely the nature of the charges, the number of defendants
and the political and social situation obtaining in Reggio Calabria at
the time.
The Court observes that the charges against the accused did not raise
any difficult points of law. The facts to be investigated and the
procedure to be followed were somewhat complicated on account of the
number of persons involved - thirty-five -, but that cannot justify a
delay of nearly ten years. The Court reverts in paragraph 19 below to
the third reason put forward by the Government.
2. Conduct of the judicial authorities
17. The Government prayed in aid the excessive workload which they
said was borne by the Reggio Calabria District Court after the
disturbances that had occurred in that town. They maintained that the
authorities had endeavoured to meet this temporary and exceptional
crisis by acting methodically, by giving priority to the trials of
those defendants who were in custody and by appointing more judges and
court staff. This was said to be demonstrated by the increase in the
number of judgments delivered from 1975 to 1983.
18. 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).
Despite the efforts made to improve the functioning of the Reggio
Calabria District Court, the applicant had to wait nearly ten years
before the "criminal charge" against him was the subject of a judicial
determination at first instance. A period of that length cannot be
regarded as the consequence of a passing crisis.
3. Political and social background
19. The Government argued that account should also be taken of the
political and social background formed by the disturbances, which
allegedly obliged the authorities to take special precautions. In
this connection, particular importance attached, in the Government's
submission, to the fact that the delays in the proceedings were
designed to defuse the situation, which fact, amongst other things,
enabled the applicant to take advantage of the 1978 amnesty decree
(see paragraph 9 above).
The Court has not in any way underestimated the importance of these
factors, to which it also had regard in an earlier case (see the
above-mentioned Foti and Others judgment, Series A no. 56, pp. 20-21,
§ 61). However, it does not consider that they justify a delay of
nearly ten years which, moreover, continued well beyond the cessation
of the disturbances in Reggio Calabria.
As for the argument based on the amnesty, it suffices to note that the
District Court did not give judgment until 1983, that is five years
afterwards.
4. Conclusion
20. 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).
II. APPLICATION OF ARTICLE 50 (art. 50)
21. 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."
22. The applicant sought in the first place employment in some
civil-service post in the Reggio Calabria area with retrospective
effect to 1973 or, in the alternative, to 1979, including the
corresponding status and benefits. His lawyer specified that he was
not asking the Court to direct that the Government should take any
positive step, but to deliver a declaratory judgment which would give
rise to a moral rather than a legal obligation and with which it would
be for the Government to comply.
The Government contested this claim, on the ground that the Court did
not have jurisdiction to order that they should take a specific
measure such as the engagement of an individual as an employee.
Like the Commission, the Court considers that the fact that Mr. Milasi
was not recruited was occasioned not by the criminal proceedings
against him, but by his failure to sit the written examination forming
part of the competition (see paragraph 10 above); it therefore cannot
be regarded as a consequence of the violation found by the Court.
There is thus no call to rule on the Government's plea of
inadmissibility.
23. The applicant also sought compensation of two hundred
million lire, but the Government submitted that this claim was
unsupported by evidence of any causal link. In the Commission's view,
Mr. Milasi had sustained non-pecuniary damage which the Court should
assess on the basis of the material before it.
The Court is of the opinion that the applicant undoubtedly suffered
such damage, in that he was left in prolonged uncertainty as to the
outcome of the criminal proceedings and their financial repercussions.
Taking its decision on an equitable basis, as is required by
Article 50 (art. 50), the Court awards the applicant seven million
lire under this head.
24. Finally, Mr. Milasi sought twenty million lire for costs and
expenses, in a claim which appeared to relate only to the Strasbourg
proceedings. However, he had the benefit of legal aid before the
Convention institutions and has supplied no details which could
justify the award of any additional sums.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6 § 1
(art. 6-1) of the Convention;
2. Holds that the respondent State is to pay to the applicant the sum
of seven million lire (7,000,000 LIT) by way of just satisfaction;
3. 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