GOLFETTO v. ITALY
Inadmissible
Christos Rozakis
The applicant, Mr Massimo Golfetto, is an Italian national, who was born in 1926 and lives in Padua. He is represented before the Court by Mr U. Giuliani Balestrino, a lawyer practising in Milan. The facts of the case, as submitted by the parties, may be summarised as follows. On 11 December 1989, 24 November 1990 and 9 April 1991 respectively, the Padua Court declared three companies, allegedly directly or indirectly administered by the applicant, insolvent. In connection with these facts, the applicant was charged on an unspecified date with fraudulent trading and was committed for trial in the Padua Court. At a hearing on 10 February 1995, the presiding judge of the Court of Padua questioned a witness, A.R., who had been the official receiver in the insolvencies of the above-mentioned companies. The presiding judge asked him whether he had been previously involved, as a victim, in criminal proceedings. A.R. answered that he recently had, because someone had fired shots at the door of his house, probably as an act of intimidation. The witness added that the outcome of those proceedings was that the applicant's son had been found guilty and had been sentenced to two years' imprisonment. In fact, the presiding judge of the Court of Padua had also presided over the criminal proceedings against the applicant's son, which had ended on 18 January 1994. On 30 March 1995 the applicant filed a request with the Court of Appeal of Venice for the presiding judge of the Court of Padua to be removed from hearing his case (ricusazione). The grounds for the request were that the presiding judge had stated his opinion on the facts of the case when not exercising his judicial functions (Article 36 para. 1 (c) of the Italian Code of Criminal Procedure) or, in the alternative, that he had stated his opinion on the facts of the case before the end of the proceedings (Article 37 para. 1 (b) of the same Code). On 5 April 1995 the Venice Court of Appeal rejected the applicant's request as manifestly ill-founded. The applicant appealed against that decision to the Court of Cassation. On 9 November 1995 the latter court rejected the applicant's appeal. On 28 December 1995 the Court of Padua found the applicant guilty of fraudulent insolvency and sentenced him to six years' imprisonment and five years' disqualification from civic office. On 9 April 1996 the applicant lodged an appeal against the above decision with the Venice Court of Appeal. When lodging the appeal with the Venice Court of Appeal, the applicant did not explicitly refer to the alleged lack of impartiality of the first-instance judge. Before the Court, he maintains that he did not explicitly raise such a complaint because his request for the judge to be removed had ended with a final decision of the Court of Cassation rejecting it and that, in any event, in Italian law the issue of the alleged partiality of a first-instance judge was not a ground on which the Court of Appeal could set aside a first-instance judgment. According to the latest information provided by the Government, on 4 July 2001 the proceedings in the Court of Appeal were still pending because priority had been accorded to other proceedings. According to the Government, the first hearing should take place at the beginning of 2002.