CEDH · CASELAW;CLIN;ENG — 18 mars 2021

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Italy - 24340/07 Judgment 18.3.2021 [Section I] Article 6 Civil proceedings Article 6-1 Access to court Civil rights and obligations Length of preliminary investigations prevented the applicant from joining criminal proceedings as a civil party claiming damages: Article 6 applicable; violation Facts – On 22 July 2001 a newspaper published, on its front page, an article headed “Millions vanish into black hole ‘thanks to’ Petrella &   Co.”, together with a photograph of the applicant, a lawyer and chairman of a football club. Among other things the article claimed that he was responsible for the severe cuts in the local and regional public health budget over a six-year period. Then over the following three days the paper published other articles in the same vein. Taking the view that these articles had impugned his honour and reputation, the applicant filed a criminal complaint on 28   July 2001, for aggravated defamation through the press, against the journalist and the managing director of the newspaper and the chairman and legal representative of the publisher. In his complaint, filed with the public prosecutor, the applicant explained that he intended to join the criminal proceedings as a civil party and claimed five million euros in damages. In addition, he stated that he wished to be informed if his complaint was to be shelved. On 10 September 2001 the case was referred to the public prosecutor’s office at the District Court. On 17 January 2007 the preliminary investigations judge discontinued the proceedings as the criminal offence complained of had become time-barred. Law – Article 6 § 1: (a)     Applicability – To fall within the scope of the Convention, the right to have third parties prosecuted or sentenced for a criminal offence must be indissociable from the victim’s exercise of a right to bring civil proceedings in domestic law, even if only to secure symbolic reparation or to protect a civil right such as the right to a “good reputation”. Therefore Article 6 § 1 of the Convention applied to proceedings involving civil-party complaints from the time when the complainant became a civil party, unless he or she had waived the right to reparation in an unequivocal manner ( Perez v.   France [GC]). The Court had deemed this Article to be applicable to a victim who had not yet been joined to the criminal proceedings as a civil party in so far as, under Italian law, even prior to the preliminary hearing at which such status could be obtained, the victim was already entitled to exercise certain rights and prerogatives recognised by law. In the present case, the applicant had filed a criminal complaint in order to assert a civil right, namely the right to the protection of his reputation, to which he had an arguable claim. Moreover, in his criminal complaint he had stated that he wished to join the criminal proceedings as a civil party and claimed five million euros in damages. He had also expressly requested to be informed if the proceedings were discontinued. The applicant had thus exercised at least one of the rights or prerogatives granted under domestic law to an injured party ( Arnoldi v.   Italy ). Accordingly the Court rejected the Government’s objection that the application was incompatible ratione materiae . Conclusion : Article 6 applicable. (b)     Merits – The applicant had availed himself of the rights and prerogatives available to him under domestic law in the context of the criminal proceedings and would thus have been able, at the preliminary hearing, to assert his civil claim. It was solely as a result of the delays in the handling of the case by the prosecuting authorities, and the ensuing discontinuance of the proceedings as time-barred, that the applicant had not been able to submit his claim for compensation or to obtain a decision on that claim by the criminal court. This negligent conduct on the part of the authorities had deprived the applicant of the prospect of having his civil rights determined in the type of proceedings that he had chosen to bring, as made available to him under domestic law. A claimant could not be required to bring a new action in a civil court, for the same purposes of engaging civil liability, where the criminal proceedings capable of addressing the claim had become time-barred through the fault of the criminal authorities. Such an action would probably entail the need to gather the evidence afresh, for which the applicant would henceforth be responsible, and to establish possible liability could prove to be extremely difficult such a long time after the event. Conclusion : violation (five votes to two). Article 41: EUR 5,200 in respect of non-pecuniary damage. The Court also found, unanimously, that there had been a violation of Article 6 §   1 on account of the excessive length of the criminal proceedings and a violation of Article   13 for the lack of a domestic remedy by which the applicant could assert his right to a hearing within a reasonable time. (See also Perez v. France [GC], 47287/99, 12 February 2004, Legal summary ; Sottani v. Italy (dec.), 26775/02, 24 February 2005, Legal summary ; Atanasova v. Bulgaria , 72001/01, 2 October 2008, Legal summary ; Arnoldi v. Italy , 35637/04, 7 December 2017, Legal summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes