In the case of Cappello 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 22/1991/274/345. 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. 12783/87) against the Italian Republic lodged with the
Commission under Article 25 (art. 25) by an Italian national,
Mrs Caterina Cappello, on 7 February 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, G. v. Italy, Caffè
Roversi S.p.a., Andreucci, Gana, Barbagallo, 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; 24/1991/276/347;
25/1991/277/348; 33/1991/285/356; 36/1991/288/359; 38/1991/290/361;
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
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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) - on 15 July 1991 and the Government's
memorial on 16 July. 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 10 October and 5 November respectively, the Government
and the Commission filed their observations on the applicant's
claims for just satisfaction (Article 50 of the Convention)
(art. 50).
AS TO THE FACTS
9. Mrs Caterina Cappello is an Italian national and resides in
Rome. She is a housewife. The facts established by the Commission
pursuant to Article 31 para. 1 (art. 31-1) of the Convention are as
follows (paragraphs 16-22 of its report):
"16. On 19 August 1976 the applicant was knocked down by
a motorcycle and seriously injured. Criminal proceedings
were taken against the rider, a minor. On 23 March 1979 the
Cagliari Juvenile Court acquitted him under an amnesty.
17. By a writ dated 16 May 1980, the applicant brought
an action for damages before the District Court at Tempio
Pausania (Sassari) against the young motorcyclist, his
parents and the owner of the motorcycle.
18. The first hearing, set down for 2 October 1980, did
not take place until 2 October 1981 owing to the transfer of
the investigating judge responsible for the case. On
16 February 1984 the case was ready to be heard and was
referred to the appropriate chamber of the court, before
which the parties were to appear on 22 November 1984.
However, the hearing was postponed indefinitely owing to the
transfer of the investigating judge.
19. The investigating judge was replaced in January 1987
and the hearing before the court chamber was set for
19 February 1987, but on that date the proceedings were
interrupted following the death of one defendant's lawyer.
20. The proceedings were reopened by a writ filed with
the court registry on 24 March 1987.
21. The hearing before the court chamber, initially set
down for 11 June 1987, was not held until 19 November 1987.
22. On 16 December 1987 the District Court delivered
judgment, allowing the applicant's claims. The text of the
judgment was lodged with the registry on 19 December 1987.
23. ... ."
10. On 29 June 1990, the defendants having appealed and, it
appears, the applicant having filed a cross-appeal, the Cagliari
Court of Appeal confirmed the first-instance judgment while
increasing the damages awarded to Mrs Cappello. The text of its
decision was filed with the registry on 26 September 1990. It does
not seem that there has been any appeal to the Court of Cassation.
PROCEEDINGS BEFORE THE COMMISSION
11. Mrs Cappello lodged her application with the Commission on
7 February 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. 12783/87) admissible. In its report of 5 December 1990
(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-F
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
16 May 1980, when the applicant brought her action for damages in
the Tempio Pausania District Court. It probably ended, at the
latest, on 26 September 1991, the date by which the judgment of the
Cagliari Court of Appeal must have become final (see the Pugliese
(II) v. Italy judgment of 24 May 1991, Series A no. 206-A, p. 8,
para. 16).
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 and the transfer of two judges. In addition, the
applicant had not requested that her case be examined more rapidly.
17. As Mrs Cappello stressed, however, the case was a simple
one. Yet it took almost four years to complete the investigation
(16 May 1980 - 16 February 1984) and there was a long period of
stagnation in the proceedings in the competent chamber of the
District Court (22 November 1984 - 19 February 1987) before they
were continued at a more normal pace.
The Government pleaded the backlog of cases in the Tempio
Pausania District Court and the transfer of two judges, 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).
The case-file does not provide many details on the
proceedings in the Cagliari Court of Appeal. The State cannot be
held responsible for the period of several months which the
defendants took to appeal, but it may be noted that approximately
three months elapsed between the adoption of the judgment and the
filing of its text with the registry (29 June - 26 September 1990).
18. In any event, 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 and costs
20. Mrs Cappello claimed 15,000,000 Italian lire for damage and
for costs and expenses incurred before the national courts and the
European Court.
There is, however, no evidence that the violation found
caused her pecuniary damage and entailed for her additional costs in
the domestic proceedings, as the Government rightly pointed out. On
the other hand, she must have sustained a degree of non-pecuniary
damage which - notwithstanding the contrary view expressed by the
Government - the finding of a violation is not sufficient to
compensate and for which the Court, making an assessment on an
equitable basis, awards her 10,000,000 lire.
It remains to determine the question of the costs incurred
by the applicant in Strasbourg. Having regard to the evidence at
its disposal and to its case-law in this field, the Court awards her
3,000,000 lire.
B. Interest
21. 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.
22. 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 Cappello,
within three months, 10,000,000 (ten million) Italian lire
for non-pecuniary damage and 3,000,000 (three million) 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