CASE OF CARDARELLI v. ITALY



In the case of Cardarelli 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 10/1991/262/333.  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. 12148/86) against the Italian Republic lodged with

the Commission under Article 25 (art. 25) by an Italian national,

Mr Achille Cardarelli, on 9 April 1986.

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, Mr Paolo Soldani Benzi,

avvocato, informed the Registrar, on 10 April 1991, of

Mr Cardarelli's death and of his appointment as trustee of the

applicant's estate; in that capacity and after receiving the

authorisation of the Florence magistrate's court, he stated that he

wanted the proceedings to continue and to take part in them as the

representative of the deceased's estate.  For reasons of convenience

Mr Cardarelli will continue to be referred to as "the applicant" in

this judgment.

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, Golino, Taiuti, Maciariello, Manifattura FL, Steffano,

Ruotolo, Vorrasi, Cappello, 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 9/1991/261/332; 11/1991/263/334 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; 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

Mr Soldani Benzi - whom the President had authorised to use the

Italian language (Rule 27 para. 3) - on 11 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 "possible" claims by

the applicant for just satisfaction (Article 50 of the Convention)

(art. 50).  In fact Mr Soldani Benzi submitted such claims, which

were in any case expressed in vague terms, only in a letter of

22 December 1991, after the expiry of the time-limit laid down in

Rule 50 para. 1.

AS TO THE FACTS

9.      Mr Achille Cardarelli was an Italian national and resided in

Florence until his death.  The facts established by the Commission

pursuant to Article 31 para. 1 (art. 31-1) of the Convention are as

follows (paragraphs 16-32 of its report):

"16.    By summons served on 23 December 1977 the applicant, as the

owner of a flat damaged by water seepage, took proceedings before

the Florence District Court against Mr M., the owner of the flat

from which the seepage originated.  He asked that the cause of the

water damage be remedied and claimed damages.

17.     The investigation opened at the hearing of 2 February 1978,

followed by hearings on 18 May 1978 (when the heirs of the person

who had renovated the house intervened in the proceedings)

and 8 March 1979 (initially fixed for 19 October 1978).

18.     At the hearing of 27 April 1979, as further seepages had

occurred, the applicant asked the investigating judge to order the

measures required for the protection of his property against any

subsequent damage.  He also informed the judge that Mr M.'s counsel

had died, and this caused an interruption of the proceedings.

19.     On 2 May 1979, in order to decide on the request for

protective measures, the investigating judge appointed an expert who

was sworn in at the hearing of 31 May 1979.  He was given sixty days

to lodge his report.  This time-limit was not complied with and so

the examination of the case, after being adjourned to 5 October,

8 November and 6 December 1979, did not resume until the hearing of

10 January 1980.

20.     In the meantime, by summons served on 26 October 1979, the

applicant took proceedings against Mr M. before the Florence

District Court for compensation for the damage caused by the new

seepages.

21.     On 1 February 1980 the investigating judge, referring to the

findings of the expert's inspection, ordered that the water supply

system be cut off.

22.     On 15 February 1980 Mr M. requested that the order be

rescinded as the measure adopted amounted to compelling his tenants

to move out of the premises.  On 16 February 1980 the investigating

judge instructed the parties to appear in person at the hearing of

22 February 1980; at the close of the hearing on that date he

summoned the expert to the hearing of 29 February 1980 to receive

further instructions.

23.     At the hearing of 10 April 1980, the claim for damages filed

by the applicant on 26 October 1979 was joined to the first claim.

24.     After the expert's additional findings had been submitted,

two hearings took place on 15 and 16 May 1980.  On 27 May 1980 the

investigating judge amended the order of 1 February 1980 and

prescribed new protective measures.  The expert was instructed to

oversee the work and authorised to take any technical action

required to prevent further water seepages.

25.     Two more hearings were held on 3 and 17 July 1980.  During

the latter, the investigating judge granted a request by the

applicant and gave the expert twelve days to complete the work.

26.     However, more seepages occurred and at the hearing

of 18 September 1980 the applicant asked the court to take effective

measures and replace the expert.

27.     On 26 September 1980 the investigating judge decided to give

precedence to the applicant's interests and ordered that the water

supply system be cut off within thirty days.

28.     The hearings of 5 December 1980 and 20 February 1981 were

followed by a hearing on 5 March 1981, when the investigating judge

fixed a hearing for 9 October 1981 for the examination of the

witnesses identified by the parties.  The examination proceeded at

        the hearings of 2 April and 24 June 1982.  Owing to an error in the

notifications, the next hearing, fixed for 18 November 1982,

was postponed to 28 January 1983.  On that date the examination

of the witnesses was completed.

29.     At the hearing of 3 March 1983, the parties asked for a

hearing to make their final submissions.  The parties began to make

their final submissions on 30 June 1983, continued at the hearing of

27 October 1983 and did not finish until the hearing of

15 December 1983.  The investigating judge referred the case to the

competent court chamber to be heard on 10 December 1985.

30.     However, the death of the defendant in October 1985 caused

the proceedings to be interrupted again.

31.     On 2 March 1986 the proceedings were reopened by the

applicant.  Another hearing before the court chamber was fixed for

23 February 1988 but did not take place because the reporting judge

had been transferred to the Court of Appeal in October 1987.

32.     By order of 10 July 1989, the replacement judge fixed the

hearing for 30 October 1990."

10.      According to the documents and information supplied to the

European Court by the Government, the Commission and the applicant's

lawyer:

(a) following the summons of 26 October 1979 (see paragraph 9 above,

no. 20), Mr M. again requested the intervention both of the

builder's heirs and the plumber;

(b) at the hearing on 30 October 1990 (see paragraph 9 above,

no. 32), Mr Cardarelli's lawyer informed the District Court of his

client's death, which had occurred on 21 February 1987; this caused

a third interruption of the proceedings;

(c) on 8 April 1991 Mr Soldani Benzi, as trustee of the estate,

sought leave from the Florence magistrate's court to continue the

proceedings;

(d) having obtained such leave, on 15 April he requested the

President of the District Court to set down a date for the trial

hearing before the chamber;

(e) on 17 April the President of the District Court directed that

the hearing should be held on 11 February 1992.

PROCEEDINGS BEFORE THE COMMISSION

11.     Mr Cardarelli lodged his application with the Commission on

9 April 1986.  He complained of the length of the civil proceedings

brought by him and relied on Article 6 para. 1 (art. 6-1) of the

Convention.

12.     On 11 May 1990 the Commission declared the application

(no. 12148/86) 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 229-G

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 his 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

23 December 1977 when the proceedings were instituted against Mr M.

in the Florence District Court; it has not yet ended since that

court has still to give judgment.

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 complexity of the facts, the

number of participants in the proceedings and the interruptions due

to the deaths of the defendant and his lawyer.  They also mentioned

the excessive workload of the Florence District Court.

17.     Like the Commission, the Court notes that the case was one

of some complexity.  The need to have recourse to expert opinions

and the presence of several defendants undoubtedly rendered the

investigating judge's task more difficult.  Nevertheless, most of

the delays occurred after the investigation had been terminated.

In the first place, almost two years elapsed between the last

hearing before the investigating judge and the hearing before the

chamber (15 December 1983 - 10 December 1985).

Secondly, after the second and third interruptions there were long

delays before the trial began again.  The Italian State cannot be

held responsible for three of them: Mr Cardarelli's lawyer waited

more than two months before requesting that the proceedings be

resumed following Mr M.'s death (10 December 1985 - 2 March 1986),

more than three years and eight months before notifying the court of

his client's death (21 February 1987 - 30 October 1990) and more

than four years before requesting leave to act thereafter in his

capacity as a trustee (21 February 1987 - 8 April 1991).

The same is not true of various other delays.  After the

above-mentioned requests of the applicant's lawyer, the District

Court set down the hearings for dates nearly two years away, in one

instance, and more than ten months, in the other (2 March 1986

- 23 February 1988; 8 April 1991 - 11 February 1992).  Moreover the

hearing to be held on 23 February 1988 did not take place until

considerably later, namely 30 October 1990, because the

investigating judge had been transferred.  Such delays can hardly be

reconciled with the necessary diligence, which the District Court

had displayed in respect of the first interruption (27 April 1979

- 31 May 1979).

The Government pleaded the backlog of cases in the 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).

18.     Taking the proceedings as a whole, the Court cannot regard

as "reasonable" in this instance a lapse of time which is already

more than fourteen years for only one level of jurisdiction.

There has therefore been a violation of Article 6 para. 1

(art. 6-1).

II.     APPLICATION OF ARTICLE 50 (art. 50)

19.     The applicant did not request any just satisfaction under

Article 50 (art. 50) of the Convention in good time (see paragraph 8

above) and this is not a matter for the Court to examine of its own

motion.

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 it is not necessary to apply Article 50 (art. 50)

in this instance.

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

 

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