Apicella v. Italy [GC]

Information Note on the Court’s case-law 85

April 2006

Apicella v. Italy [GC] - 64890/01

Judgment 29.3.2006 [GC]

Article 6

Civil proceedings

Article 6-1

Reasonable time

Insufficient amount and delay in payment of awards made in the context of a compensatory remedy available to victims of excessively lengthy proceedings: violation

[This summary also covers the following Grand Chamber judgments of 29 March 2006: Scordino v. Italy (no. 36813/97); Cocchiarella v. Italy (no. 64886/01); Musci v. Italy (no. 64699/01); Riccardi Pizzati v. Italy (no. 62361/00); Giuseppe Mostacciuolo v. Italy (no. 1) (no. 64705/01); Giuseppe Mostacciuolo v. Italy (no. 2) (no. 65102/01); Ernestina Zullo v. Italy (no. 64897/01); and Procaccini v. Italy (no. 65075/01)]

Facts: Scordino: In 1992 the applicants inherited land that had been expropriated in March 1983 with a view to the construction of housing. They declared their intention to continue the proceedings that had been instituted on 25 May 1990 by the person from whom they had inherited the land disputing the amount of compensation for expropriation. On account of the entry into force of Law no. 359 of 1992, which introduced new criteria for calculating compensation for expropriation of building land, the Court of Appeal instructed an expert to determine the expropriation compensation according to the criteria established by the new Law. The expert assessed the market value of the land at the date of expropriation at ITL 165,755 per square metre and the compensation payable in accordance with the criteria introduced by the 1992 Law at ITL 82,890 per square metre. Accordingly, in a judgment of 17 July 1996, the Court of Appeal awarded the applicants expropriation compensation on the basis of the expert’s conclusions. In a judgment lodged with the registry on 7 December 1998, the Court of Cassation upheld the Court of Appeal’s judgment on this point. On 18 April 2002 the applicants applied to the Court of Appeal under the “Pinto Act” of 24 March 2001, seeking compensation for the length of the proceedings to which they had been parties. In a judgment of 1 July 2002, deposited with the registry on 27 July 2002, the Court of Appeal found that the length of the proceedings had been excessive. It ordered the Ministry of Justice to pay the applicants a total sum of EUR 2,450 for non-pecuniary damage alone and apportioned the costs between the parties.

In the eight other similar cases against Italy, which were examined on the same date (Cocchiarella, Musci, Riccardi Pizzati, Giuseppe Mostacciuolo(no. 1), Giuseppe Mostacciuolo(no. 2), Apicella, Ernestina Zullo, Giuseppina and Orestina Procaccini), the applicants, who had all applied to the Italian courts under the Pinto Act complaining of the excessive length of civil proceedings to which they had been parties, complained of what they considered to be a derisory amount of compensation for their loss. In all these cases the Italian courts found that the proceedings had exceeded a reasonable time and awarded the applicants compensation ranging from EUR 1,000 to EUR 5,000 according to the case.

Law: Article 1 of Protocol No. 1 (Scordino): The interference with the applicants’ right to the peaceful enjoyment of their possessions had been provided for by law and had pursued an aim in the public interest. Regarding the proportionality of the interference, less than full compensation did not make the taking of the applicants’ property by the State eo ipso wrongful. However, the compensation awarded to the applicants, which had been calculated according to the criteria laid down in Law no. 359 of 1992, was far lower than the market value of the property in question and was not justified by any legitimate aim “in the public interest”. Accordingly, the applicants had had to bear a disproportionate and excessive burden which could not be justified by any legitimate aim in the public interest pursued by the authorities. Having regard to that conclusion, there was no need to examine separately under Article 1 of Protocol No. 1 the complaint based on interference by the legislature.

Conclusion: violation (unanimously).

Article 6 (fairness of the proceedings) (Scordino): Prior to the entry into force of the 1992 Law, the law applicable to the present case provided for compensation to the full market value of the property. As a result of the application of the 1992 Law, the compensation payable to the applicants had been substantially reduced. The Government had not demonstrated that the considerations to which they had referred – budgetary considerations and the legislature’s intention to implement a political programme – amounted to an “obvious and compelling general interest” required to justify the retrospective effect of the Law.

Conclusion : violation (unanimously).

Under Article 46, the Court asked the respondent State to ensure, by appropriate statutory, administrative and budgetary measures, that the right in question was guaranteed effectively and rapidly in respect of all claimants affected by the expropriation of property, in accordance with the principles of the protection of pecuniary rights, and in particular with the principles applicable to compensation arrangements.

Article 6 (length) (part common to the nine cases):

Preliminary objections: non-exhaustion of domestic remedies: The Court had already held that the remedy before the courts of appeal introduced by the Pinto Act was accessible and that there was no reason to question its effectiveness. It reiterated, furthermore, its earlier finding that it was reasonable to assume that the departure from precedent in the Italian Court of Cassation’s judgment of 26 January 2004, in which it had established the principle that the courts of appeal had to determine the amounts to be awarded in “Pinto” proceedings on the basis of the ECHR’s case-law, must have been public knowledge from 26 July 2004. It had therefore held that, from that date onwards, applicants had to be required to avail themselves of that remedy for the purposes of Article 35 § 1 of the Convention. In these nine cases the time-limit for appealing to the Court of Cassation had expired before 26 July 2004 and the applicants were therefore dispensed from the obligation to exhaust domestic remedies: preliminary objection dismissed.

Victim status of the applicants: In that connection the Court was required to verify that there had been an acknowledgement, at least in substance, by the authorities of a violation of a right protected by the Convention and whether the redress could be considered as appropriate and sufficient. It was not disputed that there had been a finding of a violation of the Convention on account of the excessive length of the proceedings in issue. With regard to the characteristics of the redress, excessive delays in an action for compensation could affect whether the remedy was an adequate one. Even if the Court could accept that the authorities needed time in which to make payment, in respect of a compensatory remedy designed to redress the consequences of excessively lengthy proceedings that period should not exceed six months from the date on which the decision awarding compensation became enforceable. Moreover, for the purpose of making available a remedy affording compensation within a reasonable time, it was acceptable that the proceedings might be subject to more summary procedural rules than ordinary applications for damages, provided that the procedure conformed to the principles of fairness guaranteed by Article 6 of the Convention. Lastly, it was reasonable that in this type of proceedings, where the State – on account of the poor organisation of its judicial system – forced litigants to have recourse to a compensatory remedy, the rules regarding legal costs might be different and thus avoid placing an excessive burden on litigants where their action was justified. Whether or not an applicant lost his or her victim status also depended on the amount of compensation awarded at domestic level on the basis of the facts about which he or she had complained before the Court, an amount which should not be unreasonable. In the present case the four-month period prescribed by the Pinto Act complied with the requirement of speediness necessary for a remedy to be effective. However, a risk subsisted regarding appeals to the Court of Cassation since no maximum period for giving a ruling had been fixed. The Court held in these nine cases that, even if the statutory time-limit for giving a ruling had sometimes been exceeded, the length of the proceedings had still been reasonable. However, it was unacceptable that, other than in the Scordino case, the applicants had had to wait several months, and sometimes even bring enforcement proceedings, before receiving the compensation awarded to them. It was important to stress that, in order to be effective, a compensatory remedy had to be accompanied by adequate budgetary provision so that effect could be given within six months of their being deposited with the registry to decisions of the courts of appeal awarding compensation, which, in accordance with the Pinto Act, were immediately enforceable. With regard to procedural costs, certain fixed expenses (such as the fee for registering the judicial decision) might significantly hamper the efforts made by applicants to obtain compensation. The Court drew the Government’s attention to those various aspects with a view to eradicating at the source problems that might give rise to further applications. In assessing the amount of compensation awarded by the court of appeal, the Court considered, on the basis of the material in its possession, what it would have done in the same position for the period taken into account by the domestic court. It noted that, in these nine cases, the amounts awarded by the Italian courts were, according to the case, a minimum of 8% and a maximum of 27% of what it awarded generally in similar Italian cases. In conclusion, the Court considered that various requirements had not been satisfied and that the redress was therefore insufficient. Accordingly, the applicants could still claim to be “victims” of a breach of the “reasonable-time” requirement: preliminary objection dismissed.

Compliance with Article 6: The Court sought to reaffirm the importance of administering justice without delays which might jeopardise its effectiveness and credibility. Italy’s position in that regard had not changed sufficiently following the creation of Pinto proceedings to call into question the conclusion that that accumulation of breaches constituted a practice that was incompatible with the Convention. In these nine cases the Italian courts had admittedly found that a reasonable time had been exceeded. However, the fact that the “Pinto” proceedings, examined as a whole, had not caused the applicants to lose their “victim” status constituted an aggravating circumstance regarding a breach of Article 6 § 1 for exceeding the reasonable time. Consequently, the Court considered in the nine cases that the length of the proceedings had been excessive and had failed to meet the “reasonable-time” requirement.

Conclusion: violation (unanimously).

Under Article 46 the Court invited the respondent State to take all measures necessary to ensure that the domestic decisions were not only in conformity with the case-law of the Court but also executed within six months of being deposited with the registry.

Under Article 41 it awarded the applicants in the nine cases various sums of money for non-pecuniary damage and for costs and expenses. It also awarded the applicants in the Scordino case an amount in respect of pecuniary damage.

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This summary by the Registry does not bind the Court.

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