The ECHR found a violation of the requirements of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 6 of the Convention for the Protection of Human Ri Сведения: 2018-09-09 06:53:51

ECHR Decree of 07 December 2017 in the case of Arnoldi v. Italy (application No. 35637/04).

In 2004, the applicant was assisted in the preparation of the application. The application was subsequently communicated in Italy.

The case successfully examined the applicant's complaint about the excessive length of the criminal proceedings, to prevent her from entering the criminal proceedings as a civil plaintiff due to the length of preliminary investigations. There has been a violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

 

CIRCUMSTANCES OF THE CASE


In 1995, the applicant filed an application for the initiation of a criminal investigation into a fraud (because of testimonies given in connection with her attempts to prevent the illegal construction of her property). After a preliminary investigation, which lasted seven years, the proceedings were terminated on the basis of the expiration of the statute of limitations for the prosecution of this crime. The applicant lodged a complaint under the Pinto Act, complaining about the excessive length of the criminal proceedings. Her complaint was declared inadmissible for consideration on the merits on the grounds that she did not have the status of a civil plaintiff in the proceedings instituted on her application and that she could assert her rights before the civil courts without waiting for the conclusion of the preliminary investigation.

Under Italian law, the victim can not enter the case as a civil plaintiff before the preliminary hearing. In the present case, no preliminary hearing was held at the time of the recognition of the expiry of the statute of limitations for the crime.


ISSUES OF LAW


Concerning compliance with article 6, paragraph 1, of the Convention. (a) Applicability of the provisions of the Convention. The civil aspect of article 6, paragraph 1, of the Convention was found to be applicable in the present case for the following reasons, related in particular to the specific features of Italy's legal system.

(i) The existence of civil law from the injured party. Two criteria established in the case-law of the European Court are alternative, not cumulative. For an interested person, it is necessary and sufficient to act to obtain "compensation", even if only symbolic, or for the purpose of "protecting civil law", by filing an application to join the proceedings as a civil plaintiff or simply by instituting private prosecution. Consequently, the fact that the requirement of formal compensation was not raised does not preclude the applicability of Article 6 of the Convention. In each case, it is necessary to consider whether the domestic legal system has recognized that the person who lodged the complaint has a civil interest to defend in criminal proceedings.

In the present case, it was not disputed that both these criteria were met. Firstly, by filing an application for a criminal investigation and, as detailed below in paragraph (ii), the applicant demonstrated her interest in obtaining compensation for a violation of civil law, to which she could rely on provable grounds. Secondly, the case concerned the forgery proceedings, in which the applicant sought recognition of the inauthentic character of the statements given by third parties on the basis of which the respondent Government had rejected her application for the protection of property rights.

(ii) The decisive nature of the preliminary trial stage for the protection of the civil rights of victims. This issue can not be considered abstractly, since it is necessary to take into account the peculiarities of the domestic legal system and the specific circumstances of the case.

In accordance with the Italian Code of Criminal Procedure, the victim has a number of rights, including the right to conduct investigations independently of the parties to prosecution and defense, as well as the right to appeal against the decision to terminate the proceedings. In addition, the legal system of Italy is governed by the principle of "the legality of prosecution." This means that if domestic authorities are notified of actions that can constitute a crime (for example, upon application), they are obliged, if there are grounds to prosecute the perpetrators. Accordingly, by submitting the application, the victims have the right to expect, in cases provided for by law, that proceedings will be instituted in which they could enter as civil plaintiffs to receive compensation for the damage caused.

Accordingly, under Italian law, the situation of the victim, who, while awaiting the opportunity to enter the proceedings as a civil party, has exercised at least one of these rights and opportunities in criminal proceedings, did not differ significantly from that of the civil plaintiff. Thus, the outcome of the preliminary proceedings was decisive for this civil case.

In the present case, the applicant carried out at least one of the rights and opportunities granted to victims in accordance with domestic law, since she submitted the documents, directly demanded that she be notified of the termination of the proceedings, and repeatedly demanded that the party prosecute the taking of actions and the prompt conclusion of the proceedings.

(iii) Objection to the existence of other remedies capable of protecting the applicant's civil interests. The fact that the applicant was afforded other means of protection (namely, access to civil courts) to establish that the evidence was false was a circumstance that the Court was about to consider in assessing the proportionality of restrictions on access to a court and was not in the context of the applicability of Article 6 of the Convention.

If the domestic legal system provides a remedy aimed at protecting civil law, the State must ensure that the participants in the proceedings enjoy the fundamental guarantees of Article 6 of the Convention, even if domestic rules allow for a different way of protection.

Moreover, since the applicant had not taken measures outside the scope of criminal proceedings to ensure the protection of her civil rights, she could not be considered to have waived her rights under Article 6 of the Convention.


DECISION


Article 6 of the Convention is applicable to the case (unanimously adopted).

(b) Merits. In view of the specifics of the criminal process in Italy, the beginning of the period of time that must be taken into account is the date of filing the complaint by the applicant (October 1995), and the moment of its termination is the judge's decision to terminate the proceedings (January 2003). This more than seven-year period of just a preliminary investigation is excessive.


DECISION


The violation of the requirements of Article 6 of the Convention (unanimously) was committed.


COMPENSATION


In the application of Article 41 of the Convention. The Court awarded the applicant EUR 4,500 in respect of non-pecuniary damage, the claim for compensation for pecuniary damage was rejected.

 

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