AS TO THE ADMISSIBILITY OF
The European Court of Human Rights (Second Section) sitting on 2 December 1999 as a Chamber composed of
Mr M. Fischbach,
Mr B. Conforti,
Mr G. Bonello,
Mrs V. Strážnická,
Mrs M. Tsatsa-Nikolovska,
Mr E. Levits, judges,
and Mr E. Fribergh, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 December 1995 by N.L. against Italy and registered on 30 May 1996 under file no. 31656/96;
Having regard to the reports provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 17 May 1999 and the observations in reply submitted by the applicant on 10 June 1999;
Decides as follows:
The applicant is an Italian national born in 1966 and currently residing in Rome.
A. Particular circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 4 January 1992, pending proceedings for the applicant's parents' judicial separation, counsel for the applicant's father in a letter addressed to counsel for the applicant's mother stated that the applicant had assaulted and injured his father.
The applicant, who firmly denied these accusations, requested his father and his counsel to rectify the above statement, failing which he would file a complaint for defamation.
On 22 April 1992, the applicant filed a criminal complaint against his father and the latter’s lawyer with the Public Prosecutor’s Office attached to the Rome Magistrate’s Court, reserving his possibility to lodge a civil party application.
On 12 November 1992, the Rome Public Prosecutor, noting that the facts as alleged by the applicant might have raised an issue under Article 595 of the criminal code (defamation), invited the applicant, his father and the latter’s lawyer to appear before him on 13 January 1993 with a view to trying to settle the case pursuant to Article 564 of the Code of Criminal Procedure.
The parties having failed to appear before the Public Prosecutor on the scheduled date, the latter invited them to appear before him on 9 March 1993. Once again, the parties did not respond to the invitation.
On 31 July 1996, the Public Prosecutor requested the Rome Magistrate to fix a date for the trial.
On 25 June 1998 the applicant was officially informed that, by an act of 21 December 1996, the Public Prosecutor had summoned the applicant’s father and the latter’s lawyer to appear before the Rome Magistrate on 18 September 1998 and requested that they be committed to trial for defamation against the applicant. He was also informed that the date of the hearing had later been changed to 19 October 1998.
On 19 October 1998 the Rome Magistrate ruled that the proceedings be discontinued, the prosecution being time-barred.
B. Relevant domestic law
According to Article 2043 of the Italian Civil Code, “whoever, intentionally or negligently, commits a wrongful act, must compensate for any unjust damage thereby caused”.
According to Articles 2059 of the Civil Code and 185 of the Criminal Code, compensation for moral damage can only be sought if the facts which have caused it constitute a criminal offence.
According to the established case-law (cf., inter alia, Court of Cassation, judgment no. 1474 of 11 February 1988; Milan District Court, judgment of 13 May 1982, Micciantuono v. Ist. Osp. Prov. Maternità), when the offence is time-barred, the civil courts are competent to assess and award the moral damage on the basis of the facts of the case.
According to the first paragraph of Article 90 of the Code of Criminal Procedure, the injured party is entitled, at any stage of the proceedings and before any level of jurisdiction, to submit memorials and also, except before the Court of Cassation, to seek to adduce evidence.
According to Article 564 of the Code of Criminal Procedure, in cases in which the prosecution is conditional upon a relevant request by the injured party, the public prosecutor can summon the latter and the accused to appear before him with a view to enquiring whether the injured party would withdraw the criminal complaint and the accused would accept such withdrawal. The parties can be assisted by a lawyer.
The applicant complains that, on account of the excessive length of the proceedings concerning the complaint for defamation that he had filed against his father and the latter’s lawyer with the Rome Public Prosecutor - proceedings in which he wished to lodge a civil party application seeking compensation for moral damage - he has been prevented from seeking compensation for that damage before the civil courts.
The application was introduced on 20 December 1995 and registered on 30 May 1996.
On 23 February 1999 the Court decided to communicate the application to the respondent Government.
The Government’s written observations were submitted on 17 May 1999. The applicant replied on 10 June 1999.
The applicant complains that, on account of the discontinuance of the proceedings against the responsible persons, he was prevented from seeking compensation for the moral damage he suffered in connection with an alleged act of defamation.
The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention, according to which:
“ In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by a … tribunal …”
The Government maintain that the applicant had two possibilities of seeking protection of his right to enjoy a good reputation and of seeking compensation for the moral damage allegedly suffered: either instituting civil proceedings against the responsible persons or lodging a civil party application in the criminal proceedings against them. It was open to him to choose either venue. Had he chosen the first, he would have been able to do so immediately, without having to await the outcome of the criminal proceedings. The applicant instead having chosen the second venue, it was possible for him to lodge a civil party application at the earliest at the preliminary hearing. Pursuant to Article 90 of the Code of Criminal Procedure, however, the applicant in his capacity as injured party could have submitted memorials adducing evidence.
The Government conclude that the applicant could have had access to a court. He complains of a situation which was the result of his own choice.
The applicant challenges the Government’s allegations that it would have been possible to recover moral damage through civil proceedings. He points out that pursuant to Article 2059 of the Civil Code compensation for moral damage can only be sought if it was caused by a criminal offence. He refers in this respect to certain doctrine and case-law (see, in particular, Gazzoni, Diritto Privato, Diritto all’onore, decoro, reputazione, pp. 175-176).
He therefore maintains that, on account of the excessive length of the investigations following his criminal complaints, he has not benefited from his right of access to a court.
The Court notes that, the right to enjoy a good reputation being a civil right within the meaning of Article 6 § 1 of the Convention (see the Golder v. the United Kingdom judgment of 21 February 1975, p. 13, § 27), the applicant was entitled to have a court decide upon the existence of an attack on his reputation (see the Helmers v. Sweden judgment of 29 October 1991, Series A n° 212, p. 14, § 29).
The Court observes that it is undisputed that the applicant could have instituted civil proceedings seeking compensation for the alleged damage to his reputation.
It is true that in Italian law an award of non-pecuniary damage is made only if it was caused by an offence. The Court notes however that, according to the Italian case-law, when the offence is time-barred, like in this case, the civil courts are competent to ascertain whether the facts before them constitute a criminal offence. Those courts can thus award compensation for any prejudice arising from defamation on the basis of Articles 2043 and 2059 of the Civil Code. An action before the civil courts would therefore have ensured a full protection of the applicant’s right to enjoy a good reputation.
The Court concludes that the discontinuance of the proceedings in respect of the complaint of defamation did not prevent the applicant from seeking compensation for the moral damage and thus from having access to a court in order to assert his right to a good reputation.
It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
Insofar as the length of the proceedings before the Rome Magistrate is concerned, the Court recalls that Article 6 of the Convention only applies to proceedings which involve the determination of a criminal charge against the applicant or of the latter’s civil rights or obligations. In the present case, the applicant having not filed a civil party application yet, the proceedings did not involve the determination of his civil rights or obligations within the meaning of Article 6 of the Convention. It follows that the said provision was not applicable to these proceedings.
The application must therefore be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Erik Fribergh Christos Rozakis Registrar President
31656/96 - -
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