FIRST SECTION

DECISION

Application no. 46207/07
Pietro MODAFFERI against Italy
and 8 other applications
(see list appended)

The European Court of Human Rights (First Section), sitting on 27 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 the excessive length of the proceedings under Article 6 and the lack of effective domestic remedies under 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 and the civil parties in criminal proceedings.

2.  On various dates the applicants lodged criminal complaints with the domestic authorities in respect of specific offences of which they claimed to be victims. The domestic authorities eventually discontinued the proceedings for expiry of the statutory limitation or terminated them with a decision on the merits after the applicants had joined those proceedings as civil parties. The details of the proceedings are indicated in the appended table.

3.  Some of the applicants brought proceedings under Law no. 89 of 24 March 2001 (“Pinto proceedings”) in order to obtain compensation for the excessive length of the criminal proceedings (see the appended table). The domestic courts considered the submission of the request to join the proceedings as a civil party as the starting point to determine the length of the criminal proceedings. In none of the Pinto proceedings did the domestic courts find that a reasonable time had been exceeded. Thus, the applicants’ requests for compensation were rejected.

4.  All applicants complained under Article 6 § 1 of the Convention of the excessive length of the domestic proceedings, arguing that the stage of the preliminary investigations should be taken into account to determine the overall length of the proceedings.

5.  Furthermore, the applicants in applications nos. 49920/10, 38075/18, 89/20 and 27580/21 complained under Article 13 of the Convention of the absence of an effective remedy to obtain compensation for the excessive length of the proceedings which also considered the stage of the preliminary investigations.

6.  As to application no. 27580/21, the applicant further complained under Article 1 of Protocol No. 1 to the Convention of the rejection of her request for compensation in the Pinto proceedings.

THE COURT’S ASSESSMENT

1. Joinder of the applications

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

2. The complaint under Article 6 § 1 of the Convention

8.  The Government challenged the applicability of Article 6 of the Convention in its civil limb in the context of criminal proceeding before the applicants formally joined the proceedings as a civil party. Accordingly, they argued that, taking into account the length of the proceeding starting from the applicants’ admission to the criminal proceedings, the complaints were manifestly ill-founded. As to applications nos. 42900/11, 38075/18 and 3572/20 the Government also claimed that the applicants had failed to exhaust the available domestic remedies as they had not claimed compensation under the Pinto proceedings.

9.  The applicants argued that Article 6 of the Convention is also applicable before the recognition of the formal status as a civil party and that therefore the domestic authorities should have included the length of the preliminary investigations to determine the overall length of the proceedings. As to applications nos. 42900/11, 38075/18 and 3572/20 the applicants argued that, according to domestic case-law, they would not have been awarded compensation in the Pinto proceedings for the length of the preliminary investigations.

10.  The Court has summarised the relevant principles on the applicability of Article 6 of the Convention in its civil limb in the context of criminal proceeding in Fabbri and Others v. San Marino ([GC], nos. 6319/21 and 2 others, §§ 77-93, 24 September 2024).

11.  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).

12.  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).

13.  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, in particular, 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).

14.  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).

15.  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).

16.  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.

17.  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).

18.  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.

19.  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 civil proceedings (see Article 75 of the CPP governing the relationship between separate sets of civil and criminal proceedings concerning the same matter).

20.  Turning to the circumstances of the present case, the Court observes that on various dates the applicants lodged a declaration under Article 78 of the CPP and joined the criminal proceedings as civil parties. If, on the one hand, the Court agrees with the fact that the civil right at issue was invoked using the appropriate channel and in accordance with the tenets of the domestic legal framework, on the other hand it also finds that the proceedings in question involved the determination of a “civil right” within the meaning of Article 6 of the Convention only after they submitted their request to join the criminal proceedings.

21.  Against this background, the Court finds that the applicants’ complaint under Article 6 § 1 of the Convention in respect of the length of the proceedings prior to the submission of a formal request to obtain the status of civil party, namely the stage of the preliminary investigations, is 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.

22.  The Court will thus consider the part of the complaint concerning the excessive length of the proceedings under Article 6 of the Convention exclusively in respect of the part of the proceedings following the applicants’ submission of the request to join the criminal proceedings as civil parties. In order to do so, the Court must distinguish between applications nos. 46207/07, 22370/11, 75924/11, 49920/10, 89/20 and 27580/21 on the one side, and applications nos. 42900/11, 38075/18 and 3572/20 on the other side.

23.  As to the first group of applications, the Court notes that the applicants brought Pinto proceedings to obtain compensation for the excessive length of the criminal proceedings. It also notes that the domestic authorities determined the length of those proceedings starting from the date of the applicants’ request to be admitted to the proceedings as civil parties and rejected their claims.

24.  After examining the facts in the light of the information provided by the parties, and having regard to its case-law on the subject (see, among other authorities, Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 209, 25 June 2019), the Court considers that in applications nos. 46207/07, 22370/11, 75924/11, 49920/10, 89/20 and 27580/21 the length of the criminal proceedings was not excessive and did not fail to meet the “reasonable time” requirement. Therefore, the Court finds that this part of the complaint raised under Article 6 § 1 of the Convention is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 of the Convention.

25.   In respect of applications nos. 42900/11, 38075/18 and 3572/20, the Court observes that the applicants failed to lodge a request before the domestic courts for compensation for the excessive length of the proceedings under the Pinto Law. Nothing in the case files suggests that the domestic courts would not have afforded the applicants a genuine opportunity to obtain redress for their grievances, calculated from the moment they requested to join the proceedings as civil parties, if all the requirements provided by the law were met (compare Cocchiarella v. Italy [GC], no. 64886/01, § 41, ECHR 2006-V). Therefore, the Court considers that this part of their complaint must be rejected for failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

3. The other complaints

26.  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 complaint raised in application no. 27580/21, lodged under Article 1 of Protocol No. 1 to the Convention, in respect of the failure by the domestic courts to award compensation in the Pinto proceedings falls to be examined under Article 13 of the Convention.

27.  As to the complaint raised under Article 13 of the Convention in applications nos. 49920/10, 38075/18, 89/20 and 27580/21 the Court notes that, having regard to the findings in respect of Article 6 of the Convention, 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 20 March 2025.

 Liv Tigerstedt Erik Wennerström
 Deputy Registrar President

APPENDIX

List of applications