BRUSCO v. ITALY
Inadmissible
The applicant [Mr Umberto Brusco] is an Italian national, born in 1958 and living in Quarto Flegreo (Naples). He was represented before the Court by Mr A. Murante Perrotta, of the Naples Bar. On 23 March 1992 the applicant, who had been accused of corruption and membership of a criminal organisation, was arrested and placed under house arrest. He was released on 17 July 1992. On 19 February 1993 the Naples public prosecutor’s office requested that the applicant and numerous other people be committed for trial. In an order of 10 November 1993 the Naples investigating judge allowed the request. The first hearing in the Naples District Court was held on 14 February 1994. After three further hearings – on 30 March and 6 and 9 April 1994 – a number of witnesses were questioned. On 20 April, 11 May and 8 June 1994 the proceedings were adjourned owing to strikes by lawyers. On 28 September 1994 the District Court, noting that the composition of its bench was not the same as at the previous hearings, directed that all the measures taken during the trial should be carried out again. Following a succession of hearings – on 27 September, 4, 11, 18, 23 and 25 October and 3 and 4 November 1995 – the parties presented their submissions. In a judgment of 4 November 1995, the text of which was deposited with the registry on 11 June 1996, the Naples District Court sentenced the applicant to three years’ imprisonment for corruption. It acquitted him of membership of a criminal organisation. The public prosecutor’s office and the applicant both appealed to the Naples Court of Appeal. The first hearing was scheduled for 21 April 1997. On 5 May 1997 the case was adjourned, initially until 20 September 1997 because of a lawyers’ strike and subsequently until 10 November 1997 at the defendants’ request. On that day the proceedings were adjourned until 4 May 1998 as the lawyers were on strike. On 3 November 1998 the defendants, noting that an appeal concerning an issue of relevance to the outcome of their case was pending before the Constitutional Court, applied for an adjournment. The Court of Appeal granted their application. The Constitutional Court delivered its judgment on 22 July 1999 and the applicant’s case was set down for hearing in the Naples Court of Appeal on 5 October 1999. Following numerous adjournments, the parties presented their submissions on 7 April 2000. In a judgment of 7 April 2000, the text of which was deposited with the registry on 20 April 2000, the Naples Court of Appeal acquitted the applicant. That decision became final on 22 June 2000. In a letter of 15 May 2001 the Registry of the Court informed the applicant that Law no. 89 of 24 March 2001 (“the Pinto Act”) had come into force on 18 April 2001, introducing into Italian legislation a remedy in respect of the excessive length of court proceedings. The applicant was at the same time invited to refer his complaint, in the first place, to the national courts. In a fax of 29 May 2001 the applicant indicated that he did not wish to avail himself of the remedy provided by the Pinto Act and insisted that his application to the Court should be registered. He observed, in particular, that it had been lodged on 6 December 2000, before the publication and entry into force of the Pinto Act. In passing Constitutional Amendment Act no. 2 of 23 November 1999, the Italian parliament decided to include the principle of a fair trial in the Constitution itself. The relevant parts of Article 111 of the Constitution are now worded as follows: “1. Jurisdiction shall be exercised through fair proceedings, conducted in accordance with the law. 2. All proceedings shall be conducted in compliance with the principles of adversarial process and equality of arms before a neutral and impartial court. The right to be tried within a reasonable time shall be guaranteed by law.” In order to ensure the effective application at domestic level of the “reasonable time” principle now enshrined in the Constitution, Parliament passed the Pinto Act on 24 March 2001. The relevant parts of the Act provide: “1. Anyone sustaining pecuniary or non-pecuniary damage as a result of a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, on account of a failure to comply with the ‘reasonable time’ requirement in Article 6 § 1 of the Convention, shall be entitled to just satisfaction. 2. In determining whether there has been a violation, the court shall have regard to the complexity of the case and, in the light thereof, the conduct of the parties and of the judge deciding procedural issues, and also the conduct of any authority required to participate in or contribute to the resolution of the case. 3. The court shall assess the quantum of damage in accordance with Article 2056 of the Civil Code and shall apply the following rules: (a) only damage attributable to the period beyond the reasonable time referred to in subsection 1 may be taken into account; (b) in addition to the payment of a sum of money, reparation for non-pecuniary damage shall be made by giving suitable publicity to the finding of a violation.” “1. Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under Article 11 of the Code of Criminal Procedure to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending. 2. The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by Article 125 of the Code of Civil Procedure. 3. The application shall be made against the Minister of Justice where the alleged violation has taken place in proceedings in the ordinary courts, the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners. In all other cases, the application shall be made against the Prime Minister. 4. The court of appeal shall hear the application in accordance with Articles 737 et seq. of the Code of Civil Procedure. The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of State Counsel [Avvocatura dello Stato] at least fifteen days prior to the date of the hearing before the Chamber. 5. The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in section 2 is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing. The parties may lodge memorials and documents up till five days before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties. 6. The court shall deliver a decision within four months after the application is lodged. An appeal shall lie to the Court of Cassation. The decision shall be enforceable immediately. 7. To the extent that resources permit, payment of compensation to those entitled shall commence on 1 January 2002.” “A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within six months from the date when the decision ending the proceedings becomes final. Claims lodged after that date shall be time-barred.” “If the court decides to allow an application, its decision shall be communicated by the registry to the parties, to State Counsel at the Court of Audit to enable him to start an investigation into liability, and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity.” “1. Within six months after the entry into force of this Act, anyone who has lodged an application with the European Court of Human Rights in due time complaining of a violation of the ‘reasonable time’ requirement contained in Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, shall be entitled to lodge a claim under section 3 hereof provided that the application has not by then been declared admissible by the European Court. In such cases, the application to the court of appeal must state when the application to the said European Court was made. 2. The registry of the relevant court shall inform the Minister for Foreign Affairs without delay of any claim lodged in accordance with section 3 and within the period laid down in subsection 1 of this section.” “1. The financial cost of implementing this Act, which is put at 12,705,000,000 Italian lire from 2002, shall be met by releasing funds entered in the three-year budget 2001-03 in the chapter concerning the basic current-liability estimates from the ‘special fund’ in the year 2001 forecast of the Ministry of the Treasury, Economy and Financial Planning. Treasury deposits shall be set aside for that purpose. 2. The Ministry of the Treasury, Economy and Financial Planning is authorised to make the appropriate budgetary adjustments by decree.”