FIRST SECTION

DECISION

Application no. 20507/07
Domenico BERNARDINI and Giuliana GASPARI against Italy
and 16 other applications
(see list appended)

The European Court of Human Rights (First Section), sitting on 13 February 2025 as a Committee composed of:

 Erik Wennerström, President,
 Raffaele Sabato,
 Artūrs Kučs, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the applications against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice of the complaints concerning Article 6 § 1 and Article 13 of the Convention to the Italian Government (“the Government”) represented by their Agent, Mr L. D’Ascia, and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The present applications concern the rights of the injured party in criminal proceedings.

2.  On various dates the applicants lodged criminal complaints with the domestic authorities in respect of specific offences. The domestic authorities discontinued the proceedings on various grounds at the stage of the preliminary investigations before the applicants had the opportunity to join them as civil parties. The details of the proceedings in each application are indicated in the appended table.

3.  Some of the applicants brought proceedings under Law no. 89 of 24 March 2001 (“Pinto proceedings”) to obtain compensation for the excessive length of the criminal proceedings (see appended table). They requested that the authorities consider the length of the proceedings from the date of the filing of the criminal complaints, but their requests were rejected. In particular, the domestic courts found that the applicants were not entitled to claim compensation as they had not joined the proceedings as civil parties.

4.  All the applicants except for those in applications nos. 56539/19 and 29645/20 complained under Article 6 § 1 of the Convention of the excessive length of the domestic proceedings and, in particular, of the preliminary investigations.

5.  As to applications nos. 20507/07, 56687/10, 7708/14, 19778/16, 56539/19, 29645/20, 44400/20, 38296/21, 10449/22, 17052/22 and 17407/22 the applicants also complained under Article 6 § 1 of the Convention that they did not have access to a court to determine their civil claims due to the inaction of the authorities during the investigations, which had led to the discontinuance of the criminal proceedings in which they were injured parties.

6.  With respect to applications nos. 56539/19 and 29645/20 the applicants further complained under Article 1 of Protocol No. 1 to the Convention of the failure to obtain compensation for the discontinuance of the criminal proceedings.

7.  The applicants in applications nos. 17151/10, 42661/10, 56687/10, 19778/16, 56539/19, 8605/22, 10449/22, 17052/22 and 17407/22 furthermore complained under Article 13 of the Convention of the absence of an effective remedy to obtain compensation for the excessive length of the preliminary investigations. The same complaint was raised in application no. 38296/21 both under Article 13 and Article 14 of the Convention.

THE COURT’S ASSESSMENT

8.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

9.  At the outset the Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considers that the complaints raised in applications nos. 56539/19 and 29645/20 under Article 1 of Protocol No. 1 to the Convention fall to be examined under Article 6 of the Convention, and that the complaint raised in application no. 38296/21 under Articles 13 and 14 of the Convention falls to be examined solely under Article 13 of the Convention.

10.  The parties disagreed in respect of the applicability of Article 6 of the Convention in its civil limb in the context of criminal proceeding before the applicants as the injured party formally joined the proceedings as a civil party.

11.  The Court has summarised the relevant principles in Fabbri and Others v. San Marino ([GC], nos. 6319/21 and 2 others, §§ 77-93, 24 September 2024).

12.  In that case, the Court considered that neither Article 6, nor any other provision of the Convention, may be interpreted as compelling the Contracting Parties to enable civil claims in respect of damage to be made in criminal proceedings. Nevertheless, while claims in respect of damage normally fall to be brought in the civil courts, a majority of national systems nowadays provide for the possibility of making such claims in the framework of criminal proceedings (at least at certain stages) (ibid., § 84).

13.  In this context, the Court found that for Article 6 in its civil limb to be applicable in the context of criminal proceeding, firstly, an applicant must have a substantive civil right (such as the right to compensation for damage sustained) recognised under domestic law and, secondly, the domestic legislator must have endowed the victim of a crime with a (procedural) right of action to pursue that civil right in, and at the relevant stage of, the criminal proceedings complained of. The latter must be proceedings of a judicial nature (ibid., § 88).

14.  Furthermore, it found that for Article 6 to apply in its civil limb in the context of the criminal proceedings, the civil right has to be invoked and/or pursued via the appropriate channel, in accordance with the tenets of the domestic legal framework. Thus, where domestic law provides for a formal status of “civil party” Article 6 will apply only if, and from the time when, the applicant has lodged a formal request to obtain such status, even if it has not yet been decided upon. In domestic systems having more flexible and less formalistic approaches (i.e. where no official “civil party” status exists, for example, those systems requiring solely that a civil claim was lodged or brought to the attention of the domestic criminal courts) Article 6 will apply if, and from the moment when, the applicant’s pursuance of a civil right was clear, in the light of the tenets of that domestic system (ibid., § 90).

15.  Additionally, Article 6 will only apply if the civil right being pursued in the criminal proceedings is not actively being pursued in parallel (in other words, proceedings are not suspended), before some other court or has already been decided or settled elsewhere (ibid., § 92).

16.  The Court observes that the Grand Chamber’s judgment in Fabbri and Others adopted a different approach from that taken in previous cases lodged against Italy, where the Court had found Article 6 applicable in its civil limb at the investigative stage of the proceedings despite the fact that, according to the domestic law, the injured person can join the proceedings as a civil party only at a later stage (see Sottani v. Italy (dec.), no. 26775/02, ECHR 2005-III (extracts); Patrono, Cascini and Stefanelli v. Italy, no. 10180/04, § 33, 20 April 2006; Arnoldi v. Italy, no. 35637/04, § 44, 7 December 2017; and Petrella v. Italy, no. 24340/07, § 23, 18 March 2021).

17.  In the present case it is not in dispute that as victims of the alleged offences the applicants had a substantive right, recognised under domestic law, to compensation for the damage they had allegedly sustained, this being a civil right, and that Article 76 of the Code of Criminal Procedure (“the CPP”) endowed the applicants with a (procedural) right of action to pursue that civil right in the context of the criminal proceedings.

18.  As to whether the civil right at issue (compensation for the damage allegedly sustained) was invoked and/or pursued using the appropriate channel, in accordance with the tenets of the domestic legal framework, the Court notes that, in Italy, domestic law provides for a formal status of “civil party”, subject to certain conditions. In particular, an injured party must make a formal request by means of a declaration under Article 78 of the CPP to be admitted as a civil party in the criminal proceedings (dichiarazione di costituzione di parte civile).

19.  The domestic legislation allows a civil claim to be filed within the framework of criminal proceedings only after a suspect or accused person has been committed to trial. Therefore, under domestic law, a victim may claim compensation for loss or damage caused by a criminal offence only once the offender has been officially charged. More specifically, Article 79 of the CCP states that the injured party may apply to join the proceedings as a civil party no earlier than the preliminary hearing (at which the judge is called upon to decide whether the accused should be committed for trial) or equivalent procedural stages.

20.  The Court further notes that it is only the civil party who has been duly joined to the proceedings in accordance with the law who has a right to obtain a determination of that civil claim in the case of conviction. Thus, in the absence of a declaration under Article 78 of the CPP, which is necessary to acquire civil-party status (and make an actual claim for compensation), it cannot be considered that a civil right was invoked in the criminal proceedings and/or pursued through the appropriate channel, in accordance with the tenets of the domestic legal framework. Furthermore, if the injured party fails to make the civil claim in the framework of criminal proceedings, this does not prevent that person from having the claim resolved in separate civil proceedings (see Article 75 of the CPP governing the relationship between separate sets of civil and criminal proceedings concerning the same matter).

21.  Turning to the circumstances of the present case, the Court observes that the applicants only lodged their criminal complaints and that some of them merely reserved their right to join as civil parties any eventual proceedings. Nevertheless, none of them lodged a declaration under Article 78 of the CPP to be admitted to the criminal proceedings as a civil party as all the proceedings were dismissed by the judge for preliminary investigations – that is, before the preliminary hearing (see paragraph 19 above).

22.  Therefore, in light of the principles set forth in the case Fabbri and Others (see paragraphs 12-14 above), the Court finds that the proceedings in question did not involve the determination of a “civil right” within the meaning of Article 6 and that this provision did not apply to the proceedings at issue. It follows that the applicants’ complaints under Article 6 (see paragraphs 4 and 5 above) are incompatible ratione materiae with the provisions of the Convention and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

23.  Having regard to the finding that Article 6 of the Convention is inapplicable, Article 13 of the Convention also does not apply in the present case as the applicants did not have an “arguable” complaint under any Article of the Convention or its Protocols (see Maurice v. France [GC], no. 11810/03, § 106, ECHR 2005‑IX). The complaint is therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 13 March 2025.

 Liv Tigerstedt Erik Wennerström
 Deputy Registrar President

APPENDIX

List of applications