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You are here: BAILII >> Databases >> European Court of Human Rights >> VIEZZER v. ITALY - 12598/86 [1991] ECHR 21 (19 February 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/21.html Cite as: [1991] ECHR 21

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In the Viezzer 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 12/1990/203/263. 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 o

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. 31-1, art. 47) of the Convention. It

originated in an application (no. 12598/86) against the Italian

Republic lodged with the Commission under Article 25 (art. 25)

by an Italian national, Mr Antonio Viezzer, on 6 November 1986.

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).

3. On 21 February 1990 the President of the Court 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, Angelucci, Maj,

Girolami, 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), 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), 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 and

his claims for just satisfaction on 6 and 11 July 1990 respectively

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 would submit his observations at the hearing.

6. Having consulted, through the Registrar, those who would be

appearing before the Court, the President directed on 29 August

1990 that the oral proceedings should open on 1 October 1990

(Rule 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. The hearing took place in public in the Human Rights Building,

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

meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr G. Raimondi, magistrato,

seconded to the Diplomatic Legal

Service of the Ministry of Foreign Affairs, Co-Agent

(b) for the Commission

Mr S. Trechsel, Delegate;

(c) for the applicant

Mr M. Gentiloni Silverj, avvocato, Counsel.

The Court heard addresses by the above-mentioned

representatives, as well as their answers to its questions.

On 25 October 1990 the registry received the Government's

observations on the applicant's claims for just satisfaction.

AS TO THE FACTS

9. Mr Antonio Viezzer, an Italian national, lives in Rome. When

the application was lodged he was a colonel in the Carabinieri

(auxiliary service). The facts established by the Commission

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

follows (paragraphs 13-21 of its report, see paragraph 12 below):

"13. After an investigation into the murder of the

journalist C. P., who had published articles implicating a

number of Italian political figures, it became clear that the

information he had obtained came from the archives of the

State Security Services.

14. Suspicions concerning the disclosure of this

information centred in particular on the applicant, who had

served for more than 25 years in the Italian Security Services

and had most recently been Head of the Secretariat of 'D'

office of the 'SID' (Defence Information Department) which had

been disbanded at the time when the application was submitted.

15. On 21 May 1981 the applicant was arrested by order of

the Deputy Public Prosecutor of Rome (under an arrest warrant

which also concerned a second person), on the grounds that,

while serving in the State Security Services, he had obtained

documents classified as secret with a view to political

espionage, and had also divulged information which should have

remained confidential in the domestic and international

political interests of the State (Article 257 of the Criminal

Code).

16. He was questioned on several occasions and denied all

the charges against him; he also lodged a protest against the

wording of the charges.

17. The applicant was granted temporary release for health

reasons, though he has not specified the date on which this

occurred. He states that since 20 June 1981, when he received

an order to appear in court dated 19 June, and until 6

November 1986, when the application to the Commission was

introduced, no investigative measures were taken in his case

apart from when he was questioned by the investigating judge

after presenting himself voluntarily. He also mentions an

opinion by a ballistics expert, submitted to the investigating

judge on 5 December 1984. On 19 December 1984 the

investigating judge decided to delay the deposit of the expert

opinion with the court registry, though under the terms of

Article 320 of the Code of Criminal Procedure this should have

taken place within three days of its submission (to enable the

applicant's lawyer to examine it). The investigating judge

based his decision on Article 304 quater, fifth paragraph, of

the Code of Criminal Procedure, which permits the deposit of

such an opinion to be delayed 'if there are serious reasons

for doing so'. The applicant states that the opinion had

still not been deposited at the date on which the application

was introduced.

18. On 26 June 1989 the investigating judge at the Rome

Court brought entirely new charges against the applicant,

changing both the description of the offences and the date on

which they were alleged to have been committed.

19. On 12 July 1989 the applicant was questioned by the

investigating judge. Following the questioning the

investigating judge once again changed the alleged date of the

offences as it appeared in the summons of 26 June 1989.

20. The applicant also submits that as yet only one of the

charges against him has been investigated, though he has also

been charged on counts of fraud and espionage prior to

19 March 1979, and also of obtaining public documents by false

pretences.

21. By letter of 23 October 1989 the applicant also states

that the public prosecutor in charge of this case is absent on

maternity leave (her second during this investigation) and

that she is not expected to return for at least six months.

It will therefore not be possible for the prosecutor's

submissions to be brought before the court for another year."

10. According to information supplied to the Court by the

Government and the applicant's lawyer the investigation is still

pending.

PROCEEDINGS BEFORE THE COMMISSION

11. In his application of 6 November 1986 to the Commission

(no. 12598/86) Mr Viezzer complained of the length of the

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

Convention.

12. 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-B

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

Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

13. At the hearing on 1 October 1990 the Government confirmed the

submission put forward in their memorial, in which they requested

the Court to hold "that there has been no violation of the

Convention in the present case".

AS TO THE LAW

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

14. 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.

15. The period to be taken into consideration began on

21 May 1981 with the applicant's arrest. It has not yet ended.

16. 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.

17. 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 investigation was undoubtedly of some complexity owing to

the nature of the facts to be established, but the applicant did

nothing to slow it down and the Court cannot regard as "reasonable"

in the instant case a lapse of time for the investigation stage

alone which is already more than nine and a half years.

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

(art. 6-1).

II. APPLICATION OF ARTICLE 50 (art. 50)

18. 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

19. Mr Viezzer claimed, without citing any figures, compensation

for damage; he referred to the suffering caused by the length of

the proceedings instituted against him.

20. The Commission took the view that it was appropriate to award

the applicant a substantial sum in respect of non-pecuniary damage.

The Government, on the other hand, considered that, if a

violation were to be found, a modest sum would be sufficient. They

stressed in addition that Mr Viezzer had supplied no precise

information regarding the pecuniary damage alleged.

21. The Court accepts that the applicant clearly suffered

non-pecuniary damage; making an assessment on an equitable basis,

it awards him 25,000,000 Italian lire under this head.

B. Costs and expenses

22. Mr Viezzer also claimed 4,800,400 lire for the expenses and

fees of the lawyer who represented him before the Court.

23. 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 the respondent State is to pay to Mr Viezzer

25,000,000 (twenty-five million) Italian lire for

non-pecuniary damage and 4,800,400 (four million eight hundred

thousand and four hundred) 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