ZIGARELLA v. ITALY
Inadmissible
The applicant, Mr Generoso Zigarella, is an Italian national who was born in 1945 and lives in Mercogliano (Avellino). The facts of the case, as submitted by the parties, may be summarised as follows. First set of proceedings (no. 10221/93) By a summons of 14 March 1994, served on 27 October 1994, the applicant was requested to appear before the Avellino magistrate’s court (pretura) on 2 January 1995 on charges of breaching three different town planning laws. As it appears that the hearing was not held, the applicant was summoned again on 24 March 1995 to appear for trial on 15 May 1995. Owing to a lawyers’ strike, the trial was adjourned to 10 April 1996. On that day evidence was heard from one of the prosecution witnesses, but the prosecution decided not to examine their second witness. Both parties asked the court to adjourn the trial to 20 November 1996. On that date the magistrate’s court noted that the applicant had applied to the District Council for his position to be regularised and had obtained planning permission for the relevant building works. The court accordingly concluded that there was no cause to continue with the criminal proceedings because there was no longer any offence. The judgment became final on 11 January 1997. Second set of proceedings (no. 590/94) In the meantime, on 17 June 1996, the Avellino public prosecutor’s office had summoned the applicant to appear before the Avellino magistrate’s court on 26 June 1997 on charges of breaching four different town planning laws. The applicant received the summons on 29 April 1997. It informed him that he was being prosecuted in his capacity as site manager. The works in question involved two building sites that had been the subject of the first set of proceedings and two others. The investigation had been partly conducted by the deputy public prosecutor who had been in charge of the first proceedings. The hearing listed for 26 June 1997 did not apparently take place. The Avellino magistrate’s court adjourned it to 19 February 1998 as one of the defendants was ill. On 19 February 1998 the same court adjourned the trial to 30 April 1998 because the witnesses had not appeared. On that date the applicant informed the court that he had already been tried for the same offence. On the same day the Avellino magistrate’s court concluded from the pleadings filed by the prosecution and the defence that the proceedings against the applicant could not be continued because a court decision (which had become final on 11 January 1997) had already been delivered in the case. The judgment of 30 April 1998 became final on 4 June 1998. Article 649 of the Code of Criminal Procedure provides: “Anyone who has been acquitted or convicted by a final judgment or order of a criminal court cannot be tried again for the same offence, even if it is tried on a different basis in terms of classification, degree of seriousness or circumstances ... . If fresh proceedings are nevertheless instituted, the court shall, at any stage of the proceedings, acquit or discharge the defendant and state the reasons for doing so in the operative part of the judgment.” Article 121 of the Code of Criminal Procedure provides: “The parties and counsel may at any stage of the proceedings submit written pleadings or requests to the court, which they shall file with the court registry. The court shall rule on these duly submitted requests without delay and in any event, subject to any specific statutory provision to the contrary, within fifteen days.”