CASE OF GAGLIANO GIORGI v. ITALY [Extracts]
Remainder inadmissible (Article 35-3-b - No significant disadvantage;Continued examination not justified;Case duly considered by a domestic tribunal);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award
Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
1. The applicant, Mr Mario Gagliano Giorgi, is an Italian national who was born in 1949 and lives in Milan. The application was lodged with the Court on 31 May 2007. The applicant was represented before the Court by Mr B. Nascimbene and Ms M.S. Mori, lawyers practising in Milan. The Italian Government (“the Government”) were represented by their Agent, Ms E. Spatafora, and their co-Agent, Mr N. Lettieri. 2. The facts of the case, as set out by the parties, may be summarised as follows. 3. The applicant was an inspector with the Immigration Bureau of the Milan Police Authority (Questura). 4. By a decree of 5 September 1988, served the following day, the Milan District Court public prosecutor’s office informed the applicant that proceedings had been instituted against him for extortion (Articles 317 and 81 of the Criminal Code) and ordered searches of the applicant’s house, car and office, which were carried out on 6 September 1988. 5. On 9 September 1988 the applicant’s computer was seized. 6. On 20 March 1989 the investigating judge at the Milan District Court ordered new searches, which were carried out the following day. Also on 20 March 1989, the judge issued a warrant for the applicant’s arrest on charges of extortion (Articles 317 and 81 of the Criminal Code) and forgery (Article 479 of the same Code). The applicant was accused of having forced or pressured aliens in need of residence papers to pay him sums of money in order to obtain their papers from the Immigration Bureau, and of having altered the record of statements by a foreign national who had denounced this practice. The judge also ordered the arrest of six other people implicated in the same dealings. 7. On 21 March 1989 the Prefect (Questore) of Milan suspended the applicant from duty. ... 11. On 21 June 1989, in response to the applicant’s third request, the judge ordered his release on the ground that the prosecutor’s office had collected enough evidence so that there was no longer any risk of his concealing evidence. 12. On 25 January 1990 the judge ordered that the applicant be committed for trial before the Milan District Court (RG no. 185/90). Seven other people were also committed for trial. 13. Six hearings were held between 8 and 23 May 1990, at which the facts were examined and statements heard. In a judgment of 25 May 1990, deposited with the registry on 22 June 1990, the court found the applicant guilty of extortion and forgery, sentenced him to four years and six months’ imprisonment and banned him from public office for life. 14. On 26 May 1990 the applicant challenged that judgment before the Milan Court of Appeal (RG no. 4630/90), calling for a new investigation and hearings, his acquittal or the reclassification of the offence as bribery. 15. On 5 July 1990, before the Monza District Court, the applicant elected the municipality of San Zenone al Lambro (Milan), care of Ms V.S., as his address for service in the proceedings before the Milan Court of Appeal. ... 18. In a judgment of 29 November 1993, deposited with the registry on 22 December 1993, the Court of Appeal upheld the applicant’s conviction on some of the extortion charges against him and reduced his total sentence to three years and eight months for extortion and forgery. 19. On 24 December 1993 the applicant appealed on points of law, requesting as his primary submission that the judgment of the Court of Appeal be set aside because the summons to a hearing on 18 May 1993 had been served on him at his lawyer’s address and not the address he had elected on 5 July 1990. In the alternative, he again requested the reclassification of the offences as bribery. 20. In a judgment of 29 September 1994, deposited with the registry on 1 December 1994, the Court of Cassation set aside the Court of Appeal’s judgment and referred the case back to another section of that court, inter alia, because the summons had been served at the wrong address. 21. In the meantime, on 10 March 1994 the Questore of Milan reversed the decision to suspend the applicant from duty. The applicant was transferred to the Questura in Turin. 22. The hearing of the parties’ submissions before the Milan Court of Appeal (RG no. 2637/94) was scheduled for 29 January 1996. On an unspecified date the Court of Appeal decided to try the applicant in absentia. 23. In a judgment of 1 March 1996, deposited with the registry on 30 April 1996, the Court of Appeal, after it had reclassified the charges as bribery, declared the prosecution time-barred. It sentenced the applicant to one year’s imprisonment for forgery, suspended the sentence and debarred him from public office for one year as an ancillary penalty. 24. On an unspecified date before July 1996, the applicant lodged a new appeal on points of law. He pointed out that in serving the summons at his elected address, care of Ms V.S., the registry of the court had wrongly addressed the registered letter to Ms V.S. and not to the applicant. 25. In a judgment of 7 October 1997, deposited with the registry on 18 October 1997, the Court of Cassation allowed the applicant’s appeal and sent the case back to another section of the Court of Appeal. 26. On an unspecified date the registry of the Court of Appeal served a summons to attend a hearing on 26 March 1998 (RG no. 4288/97) on one of the applicant’s lawyers. 27. On that same date the Court of Appeal declared the summons null and void and ordered the police to serve a summons to a hearing on 11 June 1998 at the address of Ms V.S. and at the Questura in Turin, where the applicant had started to work in the meantime. 28. Following the hearing on 11 June 1998, in a judgment delivered that same day and deposited with the registry on 24 June 1998, the Court of Appeal declared the bribery charge time-barred and upheld the applicant’s one-year suspended prison sentence for forgery and, as an ancillary penalty, debarred him from public office for one year. 29. On 2 October 1998 the applicant again appealed on points of law. He alleged that the summons to the hearing of 11 June 1998, served care of Ms V.S., had not correctly indicated the competent judicial authority, and that the summons served at the Questura where he worked was not valid because it had been given to his hierarchical superior. 30. In a judgment of 14 April 1999, deposited with the registry on 29 April 1999, the Court of Cassation dismissed the applicant’s appeal on the ground that, according to that court’s case-law, when a summons was served on the addressee’s hierarchical superior, it was assumed that the addressee had been notified and that the summons was therefore valid. 31. On 12 October 1999 the applicant lodged application no. 52228/99 with the Court, concerning the fairness of the criminal proceedings against him. 32. On 8 November 2002 the Court declared the application manifestly ill-founded, in conformity with Article 28 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). 33. On 16 October 2001 the applicant applied to the Brescia Court of Appeal under the “Pinto Act”, claiming 60,000,000 Italian lira (30,987 euros (EUR)) for the pecuniary and non-pecuniary damage allegedly sustained because of the length of the principal proceedings. 34. In a decision deposited on 21 February 2002, the Court of Appeal found that there had been a breach of Article 6 § 1 of the Convention only in respect of the period from the judgment of the Milan District Court (22 June 1990) to the delivery of the first judgment on appeal (29 November 1993). It considered, in view of the number of courts that had examined the case, that there had been no undue delays in the other phases of the proceedings. It awarded no compensation, considering that the applicant had not demonstrated that he had suffered any pecuniary or non-pecuniary damage and that, in any event, having been convicted at the end of the main proceedings, he could not have sustained any non-pecuniary damage related to their duration. 35. On 24 April 2002 the applicant appealed on points of law. In a judgment deposited on 24 October 2003, the Court of Cassation quashed the impugned decision, holding that the unfavourable outcome of the proceedings did not, in itself, preclude the existence of non-pecuniary damage related to their duration, and also that an allegation of damage caused as a result of the excessive length of proceedings had to be substantiated. The case was remitted to the Brescia Court of Appeal. 36. On 20 April 2004 the applicant applied to that court, arguing, inter alia, that subsequent to the judgment of 24 October 2003 the Plenary Court of Cassation had delivered four judgments (nos. 1338, 1339, 1340 and 1341 of 2004) ruling that it was not necessary to demonstrate the existence of non-pecuniary damage. 37. In a decision of 7 July 2004, deposited on 21 July 2004, the Court of Appeal rejected the appeal, on the grounds that the principles arising from the judgments of the Plenary Court of Cassation were not directly applicable in retrial proceedings and that the applicant had not substantiated his claim of non-pecuniary damage as he should have done. It also found that it had been in his interest to prolong the criminal proceedings so that the offences with which he was charged would become time-barred. 38. On 15 November 2004 the applicant appealed on points of law. In a judgment deposited on 6 December 2006, the Court of Cassation dismissed the appeal and ordered the applicant to pay EUR 3,000 in costs and expenses. ...