In the Brigandì case*,
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 J. Cremona,
Mr Thór Vilhjálmsson,
Mrs D. Bindschedler-Robert,
Mr F. Gölcüklü,
Mr C. Russo,
Mr N. Valticos,
Mr S.K. Martens,
Mr J.M. Morenilla,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 4 October 1990 and
24 January 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
* The case is numbered 2/1990/193/253. 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 Protocol No. 8, which came into force on
1 January 1990.
*** The amendments to the Rules of Court which came into force on
1 April 1989 are applicable to this case.
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PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 16 February 1990,
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. 11460/85) against Italy lodged with the
Commission under Article 25 (art. 25) by a national of that State,
Mr Natale Brigandì, on 22 February 1985.
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) of the
Convention and Article 1 of Protocol No. 1 (P1-1).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of the Rules of Court, the applicant stated that he
wished to take part in the proceedings. He was granted leave to
present his own case during the written procedure (Rule 30 para. 1,
second sentence). He subsequently informed the Court that he
considered it unnecessary to attend the hearing.
3. On 21 February 1990 the President of the Court decided,
under Rule 21 para. 6 and in the interests of the proper
administration of justice, that a single Chamber should be
constituted to consider the instant case and the Zanghì and
Santilli cases*.
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* Note by the Registrar: 3/1990/194/254 and 5/1990/196/256.
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4. The Chamber to be constituted 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 26 March 1990, in the presence
of the Registrar, the President drew by lot the names of the other
seven members, namely Mr J. Cremona, Mr Thór Vilhjálmsson,
Mrs D. Bindschedler-Robert, Mr F. Gölcüklü, Mr R. Bernhardt,
Mr S.K. Martens and Mr J.M. Morenilla (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43). Subsequently
Mr N. Valticos, substitute judge, replaced Mr Bernhardt, who was
unable to take part in the consideration of the case (Rules 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 Registrar, consulted the Agent
of the Italian Government ("the Government"), the Delegate of the
Commission and the applicant on the need for a written procedure
(Rule 37 para. 1). In accordance with the order made in
consequence, the Registrar received the applicant's memorial
on 23 May 1990 and the Government's memorial on 31 July. In a
letter received on 31 August, the Secretary to the Commission
informed the Registrar that the Delegate would submit his
observations at the hearing.
6. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on
29 August 1990 that the oral proceedings should open on
3 October (Rule 38).
7. On 31 August and 3 October the Commission produced the file
on the proceedings before it, as the Registrar had requested on the
President's instructions.
8. The hearing took place in public in the Human Rights
Building, Strasbourg, on the appointed day. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr G. Raimondi, magistrato, on secondment to
the Diplomatic Legal Service, Ministry of
Foreign Affairs, Co-Agent,
Mr G. Manzo, magistrato, on secondment to the
Ministry of Justice, Counsel;
(b) for the Commission
Mr F. Martinez, Delegate.
The Court heard addresses by the above-mentioned representatives.
AS TO THE FACTS
9. Mr Natale Brigandì lives in Florence. In July 1961, in
Reggio Calabria, a Mr B. demolished premises belonging to the
applicant which were used as a warehouse and put up a new building
on the land.
I. The proceedings at first instance
10. On 14 May 1962 Mr Brigandì sued Mr B. in the Reggio
Calabria District Court; he sought injunctions requiring the new
building to be demolished and the warehouse to be rebuilt, together
with compensation.
11. On 23 July 1973 the District Court refused the first
injunction. It awarded ownership of the land to Mr B. - as he had
requested it to do under Article 938 of the Civil Code - but
ordered him to pay the applicant 10,772,000 Italian lire in
damages.
II. The appeal proceedings
12. On 24 May 1974 Mr Brigandì appealed against this judgment,
disputing that Article 938 was applicable and seeking to have the
situation restored to what it had been formerly.
After holding hearings on 14 August 1974 and 27 January 1975, the
Reggio Calabria Court of Appeal reserved judgment on 15 May 1975.
13. On 8 July 1975 the Court of Appeal delivered an initial
judgment on the merits. It held, among other things, that
Article 938 did not apply to the case; that Mr B. had acted
unlawfully; and that he should not only compensate Mr Brigandì but
also restore the land and building to their former state.
In an order made the same day the court appointed an expert to
assess whether the building put up by Mr B. included premises
corresponding to the demolished warehouse and, if not, to indicate
the work necessary for reinstatement.
14. The expert took the oath on 12 January 1976. He visited
the site on 20 September and 14 December 1976 and again on
11 January 1977 and produced his report on 10 February 1977.
15. The parties did not attend a hearing arranged for
14 February. At the next hearing, on 23 May 1977, the applicant
challenged the report. The Court of Appeal summoned the expert,
but he did not appear until 26 June 1978; in the meantime four
hearings (on 28 November 1977 and 23 January, 24 April and 22 May
1978) had been adjourned with the agreement of the parties.
The expert was asked to produce fuller information and produced a
further report on 12 October 1978.
16. At hearings on 26 February and 28 May 1979 Mr Brigandì
challenged the expert's new findings. He urged the court to order
the expert to answer properly the questions that had been put to
him or, failing that, to replace him.
Further hearings were held on 10 December 1979 and 24 March 1980;
at the first of these the applicant submitted the opinion of a
privately retained expert. On 14 April 1980 the case was declared
to be ready for trial.
17. On 26 May 1980 the parties made their submissions to the
judge responsible for preparing the case for trial (consigliere
istruttore) and were asked by him to enlarge upon them before the
court itself on 28 May 1981. On that date the hearing was
adjourned to 22 October 1981 as the judge in question was absent.
The Court of Appeal reserved judgment on 18 February 1982. In a
judgment dated 20 January 1983, which was filed in the registry on
18 February, it confirmed that Mr B. was under a duty to restore
the land and building to their former state, and it ordered him to
pay the applicant 80,190,000 lire plus interest in respect of
pecuniary damage and 30,000,000 lire in respect of non-pecuniary
damage.
III. The proceedings in the Court of Cassation
18. On 23 June 1983 Mr B. appealed on points of law.
The applicant produced his pleadings on 3 August, and
on 20 November he applied for a date to be fixed for the hearing.
The hearing was set down for 6 June 1984 but was postponed
to 12 December at the request of counsel for Mr B.
19. On that date the division of the Court of Cassation to
which the appeal had been allocated relinquished jurisdiction in
favour of the full court (sezioni unite), as Mr B. had in effect
pleaded that the ordinary courts (giudice ordinario) had no
jurisdiction.
20. The Court of Cassation gave judgment on 13 June 1985. In
a judgment filed in the registry on 23 November it dismissed the
appeal in so far as it related to the reinstatement of the
warehouse and to non-pecuniary damage. It nonetheless set aside
the Court of Appeal's decision on account of failure to give
reasons inasmuch as the court below had determined the question of
rebuilding a cellar attached to the warehouse; and it also held
that the pecuniary damage had not been assessed correctly. It
remitted the case to the Messina Court of Appeal for a fresh
determination of these two points.
IV. The rehearing
21. On 10 September 1986 Mr Brigandì issued proceedings against
Mr B. in the Messina Court of Appeal. The preparation of the case
for hearing began on 20 January 1987. A hearing fixed for 17 March
was adjourned at the applicant's request, and the one after that
was postponed from 16 June to 7 July. On 3 November 1987 the
parties made their submissions to the judge responsible for
preparing the case for trial and they appeared before the court on
3 October 1988.
22. On 31 October the Court of Appeal - which had reserved
judgment - ordered that the documents relating to the proceedings
at first instance (see paragraphs 10-11 above) should be added to
the file, and it appointed an expert to assess Mr Brigandì's loss
of earnings.
23. On 17 January 1989 the judge responsible for the
preparation of the case gave the expert ninety days to complete his
task and set the next hearing down for 2 May 1989. That hearing
and two others (on 16 May and 4 July) were cancelled, because the
expert did not produce his report until 25 September.
On 3 October the parties were requested to make their submissions
at a hearing on 7 November 1989.
In a judgment of 23 July 1990, which was filed in the registry on
8 October 1990, the Court of Appeal awarded the applicant
11,355,155 lire - plus interest and a sum to compensate for
currency depreciation - in respect of pecuniary damage, but found
against him as regards the cellar attached to the warehouse. To
the Court's knowledge, neither of the parties has appealed to the
Court of Cassation.
PROCEEDINGS BEFORE THE COMMISSION
24. In his application of 22 February 1985 to the Commission
(no. 11460/85) Mr Brigandì complained of the length of the civil
proceedings instituted by him and of the failure to respect his
entitlement to the peaceful enjoyment of his possessions; he relied
on Article 6 (art. 6) of the Convention and Article 1 of
Protocol No. 1 (P1-1).
25. The Commission declared the application admissible on
5 December 1988. In its report of 6 December 1989 (made under
Article 31) (art. 31) it expressed the opinion that there had been
a violation of Article 6 para. 1 (art. 6-1) of the Convention
(unanimously) but not of Article 1 of Protocol No. 1 (P1-1) (by
twelve votes to seven). The full text of the Commission's opinion
and of the dissenting opinion contained in the report 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 194-B
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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FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
26. At the hearing on 3 October 1990 the Government confirmed
the final submission in their memorial, in which they requested the
Court to hold that there had been no violation of the Convention or
of Protocol No. 1 in the instant case.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
27. The applicant submitted that his civil action was not tried
within a "reasonable time" as required by Article 6 para. 1
(art. 6-1) of the Convention, which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time by
[a] ... tribunal ..."
The Government rejected this submission but the Commission accepted
it.
28. The period to be considered began only on 1 August 1973,
when Italy's declaration recognising the right of individual
petition took effect, and not as far back as 14 May 1962, when
Mr B. was summoned before the Reggio Calabria District Court (see
paragraph 10 above). In order to determine the reasonableness of
the length of time which elapsed after the former date, regard must
be had, however, to the state of the case at that moment (see,
among other authorities, the Baggetta judgment of 25 June 1987,
Series A no. 119, p. 32, para. 20).
For the purposes of the present judgment the proceedings ended on
8 October 1990, when the Messina Court of Appeal's judgment was
filed (see paragraph 23 above).
29. The participants in the proceedings presented argument as
to the way in which the various criteria employed by the Court in
this context - such as the degree of complexity of the case, the
conduct of the applicant and that of the competent authorities -
should apply in the present case.
30. Under Article 6 para. 1 (art. 6-1) of the Convention
everyone has the right to a final decision, within a reasonable
time, on disputes (contestations) over his civil rights and
obligations. The Contracting States accordingly have the
obligation to organise their legal systems so as to allow the
courts to comply with this requirement (see, as the most recent
authority, the Unión Alimentaria Sanders SA judgment of
7 July 1989, Series A no. 157, pp. 14-15, para. 38).
The Court points out that, under its case-law on the subject, the
reasonableness of the length of proceedings is to be assessed in
the light of the particular circumstances of the case. In this
instance the circumstances call for an overall assessment (see,
mutatis mutandis, the Obermeier judgment of 28 June 1990, Series A
no. 179, p. 23, para. 72).
The case was not complex. Admittedly, it was dealt with at several
levels of jurisdiction, but the Court cannot in the instant case
regard as "reasonable" a lapse of time of more than seventeen
years, especially as a period of over eleven years had earlier
elapsed before Italy recognised the right of individual petition.
There has accordingly been a breach of Article 6 para. 1
(art. 6-1).
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)
31. The applicant claimed that the length of the proceedings in
question deprived him of the enjoyment of his property. He relied
on Article 1 of Protocol No. 1 (P1-1), which provides:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair the
right of a State to enforce such laws as it deems necessary to
control the use of property in accordance with the general interest
or to secure the payment of taxes or other contributions or
penalties."
Neither the Government nor the Commission shared this view.
32. In view of the circumstances of the case and the conclusion
reached in paragraph 30 above, the Court considers it unnecessary
to determine also the complaint based on Article 1 of
Protocol No. 1 (P1-1).
III. APPLICATION OF ARTICLE 50 (art. 50)
33. Under 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."
Mr Brigandì sought compensation for damage in the amount of
10,000,000,000 Italian lire.
34. The Government pointed out that the judicial authorities
had awarded the applicant compensation in kind, in the form of the
reinstatement of his property, together with 11,355,155 lire - plus
interest and a sum to compensate for currency depreciation - in
respect of loss of enjoyment and 30,000,000 lire in respect of
non-pecuniary damage.
The Commission left the matter to the Court's discretion.
35. The Court considers that the measures already taken by the
Italian courts did not make full reparation for the consequences of
the breach that has been found. Making an assessment on an
equitable basis, it awards Mr Brigandì the sum of 15,000,000 lire.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a breach of Article 6 para. 1
(art. 6-1) of the Convention;
2. Holds that it is unnecessary to rule on the complaint based
on Article 1 of Protocol No. 1 (P1-1);
3. Holds that the respondent State is to pay to Mr Brigandì
15,000,000 (fifteen million) Italian lire;
4. 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 19 February 1991.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy