In the case of Barbagallo v. Italy*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention")** and the
relevant provisions of the Rules of Court, as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr B. Walsh,
Mr C. Russo,
Mr A. Spielmann,
Mr N. Valticos,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr F. Bigi,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 30 October 1991 and
24 January 1992,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
* The case is numbered 38/1991/290/361. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
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PROCEDURE
1. The case was referred to the Court on 8 March 1991 by the
European Commission of Human Rights ("the Commission"), within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an application
(no. 13132/87) against the Italian Republic lodged with the
Commission under Article 25 (art. 25) by an Italian national,
Mrs Emilia Barbagallo, on 27 June 1987.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Italy recognised
the compulsory jurisdiction of the Court (Article 46) (art. 46).
The object of the request was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of its
obligations under Article 6 para. 1 (art. 6-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that she
wished to take part in the proceedings and designated the lawyer who
would represent her (Rule 30).
3. On 23 April 1991 the President of the Court decided that,
pursuant to Rule 21 para. 6 and in the interests of the proper
administration of justice, this case and the cases of Diana, Ridi,
Casciaroli, Manieri, Mastrantonio, Idrocalce S.r.l., Owners'
Services Ltd, Cardarelli, Golino, Taiuti, Maciariello,
Manifattura FL, Steffano, Ruotolo, Vorrasi, Cappello, G. v. Italy,
Caffè Roversi S.p.a., Andreucci, Gana, Cifola, Pandolfelli and
Palumbo, Arena, Pierazzini, Tusa, Cooperativa Parco Cuma,
Serrentino, Cormio, Lorenzi, Bernardini and Gritti and Tumminelli*
should be heard by the same Chamber.
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* Cases nos. 3/1991/255/326 to 13/1991/265/336; 15/1991/267/338;
16/1991/268/339; 18/1991/270/341; 20/1991/272/343; 22/1991/274/345;
24/1991/276/347; 25/1991/277/348; 33/1991/285/356; 36/1991/288/359;
40/1991/292/363 to 44/1991/296/367; 50/1991/302/373;
51/1991/303/374; 58/1991/310/381; 59/1991/311/382; 61/1991/313/384
_______________
4. The Chamber to be constituted for this purpose included ex
officio Mr C. Russo, the elected judge of Italian nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On the same day, in the
presence of the Registrar, the President drew by lot the names of
the other seven members, namely Mr F. Matscher, Mr J. Pinheiro
Farinha, Sir Vincent Evans, Mr A. Spielmann, Mr I. Foighel,
Mr J.M. Morenilla and Mr F. Bigi (Article 43 in fine of the Convention
and Rule 21 para. 4) (art. 43).
Subsequently, Mr B. Walsh, Mr A.N. Loizou and
Mr N. Valticos, substitute judges, replaced respectively Mr Pinheiro
Farinha and Sir Vincent Evans, who had both resigned and whose
successors had taken up their duties before the deliberations held
on 30 October, and Mr Foighel, who was unable to take part in the
further consideration of the case (Rules 2 para. 3, 22 para. 1
and 24 para. 1).
5. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Deputy Registrar, consulted the Agent
of the Italian Government ("the Government"), the Delegate of the
Commission and the applicant's lawyer on the organisation of the
proceedings (Rules 37 para. 1 and 38). In accordance with the order
made in consequence, the Registrar received the memorial of the
applicant - whom the President had authorised to use the Italian
language (Rule 27 para. 3) - and that of the Government on 16 July 1991.
By a letter received on 22 August, the Secretary to the Commission
informed the Registrar that the Delegate did not consider it
necessary to reply thereto.
6. On 28 June 1991 the Chamber had decided to dispense with a
hearing, having found that the conditions for such derogation from
the usual procedure were satisfied (Rules 26 and 38).
7. On 28 August the Commission produced the file on the
proceedings before it, as requested by the Registrar on the
President's instructions.
8. On 5 and 26 November respectively, the Commission and the
Government filed their observations on the applicant's claims for
just satisfaction (Article 50 of the Convention) (art. 50).
AS TO THE FACTS
9. Mrs Emilia Barbagallo is an Italian national and resides at
Passopisciaro (Catania). She draws a disablement pension. The
facts established by the Commission pursuant to Article 31 para. 1
(art. 31-1) of the Convention are as follows (paragraphs 16-27 of
its report):
"16. On 18 November 1980 the applicant instituted
enforcement proceedings against Mr M., her former husband,
in order to recover a sum of 2,708,800 Italian lire owing to
her. In the course of the proceedings certain movable
property worth 525,000 lire was attached.
17. On 11 December 1980 Mrs C., Mr M.'s wife, lodged an
objection to the attachment on the ground that she was sole
owner of the property concerned.
18. The first hearing before the deputy magistrate (vice
pretore) of Francavilla Sicilia took place on
15 December 1980. The investigation proceeded at hearings
on 27 April 1981, 13 July 1981, 7 December 1981,
22 February 1982 and 8 March 1982. At the last-mentioned
hearing the parties made their final submissions and the
case was adjourned until 26 April 1982, on which date
judgment was reserved.
19. In a decision of 19 July 1982 the deputy magistrate
found that he lacked jurisdiction and ruled that the merits
of the objection fell to be determined by the Messina
District Court. The text of the decision was lodged with
the registry on the same day.
20. On 13 December 1982 the applicant took proceedings
against Mr M. and Mrs C. in the Messina District Court.
Hearings before the investigating judge took place on
21 March 1983, 4 July 1983, 7 November 1983, 6 March 1984
and 5 June 1984.
21. At the latter hearing the parties made their final
submissions and the investigating judge set the case down
for hearing by the appropriate chamber of the court on
16 October 1985. At the close of that hearing, the District
Court ordered additional investigative steps (the
examination of certain witnesses).
22. On 3 March 1986 three witnesses were examined by the
investigating judge, after which the case was adjourned for
final submissions to be made on 16 June 1986. On that date
the case was ready to be tried and was referred by the
investigating judge to the appropriate chamber of the court,
which heard the case on 20 January 1988.
23. On 27 January 1988 the District Court found that
Mr M. had not been summonsed in due form and directed the
applicant to take out a new writ, which she did on
9 March 1988.
24. Two hearings took place before the investigating
judge on 18 April and 21 November 1988. On the latter date
the case was referred to the appropriate chamber of the
court.
25. The hearing before that chamber, scheduled for
21 December 1988, was postponed to 15 May 1990. However, at
the request of the parties the hearing was brought forward
to 10 May 1989.
26. On 17 May 1989 the District Court found that Mrs C.
was sole owner of an item of property affected by the
attachment, and dismissed her objection for the remainder.
27. The text of the decision was lodged with the
registry on 24 July 1989 ... ."
10. According to the information provided to the European Court
by the applicant, that judgment became final on 25 October 1989.
PROCEEDINGS BEFORE THE COMMISSION
11. Mrs Barbagallo lodged her application with the Commission on
27 June 1987. She complained of the length of the civil proceedings
brought by her and relied on Article 6 para. 1 (art. 6-1) of the
Convention.
12. On 11 May 1990 the Commission declared the application
(no. 13132/87) admissible. In its report of 15 January 1991
(Article 31) (art. 31), it expressed the unanimous opinion that
there had been a violation of Article 6 para. 1 (art. 6-1). The full
text of the Commission's opinion is reproduced as an annex to this
judgment*.
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* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 230-I
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
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AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
13. The applicant claimed that her civil action had not been
tried within a "reasonable time" as required under Article 6 para. 1
(art. 6-1) of the Convention, according to which:
"In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ..."
The Government disputed this view, whereas the Commission
accepted it.
14. The period to be taken into consideration began on
11 December 1980 when Mrs C. entered her objection to the
enforcement proceedings instituted by the applicant. It ended on
25 October 1989, when the judgment of the Messina District Court
became final (see paragraph 10 above).
15. The reasonableness of the length of proceedings is to be
assessed with reference to the criteria laid down in the Court's
case-law and in the light of the circumstances of the case, which in
this instance call for an overall assessment.
16. The Government invoked the excessive workload of the
District Court. In addition, the applicant had not requested that
her case be examined more rapidly.
17. The case was, however, a simple one. Yet it came before two
first-instance courts. It took the deputy magistrate of
Francavilla Sicilia approximately one and a half years
(15 December 1980 - 19 July 1982), and eight hearings, to find that
he lacked jurisdiction. For its part, the Messina District Court
took more than five years to establish that Mr M.'s summons was not
in due form (13 December 1982 - 27 January 1988) and six years and
five months to allow Mrs C.'s objection in part (13 December 1982
- 17 May 1989). The applicant and the Commission also rightly drew
attention to the fact that the proceedings remained dormant from
5 June 1984 to 16 October 1985, and then from 16 June 1986 to
20 January 1988.
The Government pleaded the backlog of cases in the Messina
District Court, but Article 6 para. 1 (art. 6-1) imposes on the
Contracting States the duty to organise their legal systems in such
a way that their courts can meet each of its requirements (see,
inter alia, the Vocaturo v. Italy judgment of 24 May 1991, Series A
no. 206-C, p. 32, para. 17).
Clearly, the respondent State cannot be held responsible for
the five or so months which Mrs Barbagallo waited before taking
proceedings against Mr M. and Mrs C. in the Messina District Court
(19 July - 13 December 1982), or the six or so weeks which she took
to renew the summons against Mr M. (27 January - 9 March 1988), or
again the three months which elapsed before the judgment became
final (24 July - 25 October 1989). Far less can the court be
criticised for having brought forward by nearly one year, at the
parties' request, the date of the hearing which was to have been
held on 15 May 1990.
18. Taking the proceedings as a whole, however, the Court cannot
regard as "reasonable" the lapse of time in the present case.
There has therefore been a violation of Article 6 para. 1
(art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
19. According to Article 50 (art. 50):
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial
reparation to be made for the consequences of this decision
or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
A. Damage
20. Mrs Barbagallo requested in the first place a sum for
pecuniary damage, without giving any figures.
21. Like the Government, the Court takes the view that there is
no evidence of the existence of such damage resulting from the
violation found; accordingly, there are no grounds for awarding a
sum under this head.
B. Costs and expenses
22. The applicant also sought 1,734,430 Italian lire for the
costs incurred before the Convention organs.
Having regard to the evidence at its disposal and to its
case-law in this field, the Court awards her the sum in its
entirety.
C. Interest
23. The Commission invited the Court to fix for the Government
- who did not give their opinion - a compulsory time-limit for
executing the present judgment and to make provision for the payment
of interest in the event of their failure to comply therewith.
24. The first of these proposals is in conformity with a
practice followed by the Court since October 1991.
As to the second, the Court does not consider it appropriate
to require any payment of interest in this instance, particularly as
no such request was made by the applicant.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6 para. 1
(art. 6-1);
2. Holds that the respondent State is to pay to Mrs Barbagallo,
within three months, 1,734,430 (one million seven hundred
and thirty-four thousand, four hundred and thirty) Italian
lire for costs and expenses;
3. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
27 February 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy