CASE OF CATTIVERA v. ITALY



In the case of Cattivera 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  Thór Vilhjálmsson,

        Mr  F. Matscher,

        Mr  L.-E. Pettiti,

        Mr  B. Walsh,

        Mr  C. Russo,

        Mr  A. Spielmann,

        Mr  N. Valticos,

        Mr  S.K. Martens,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 28 October and

27 November 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 34/1991/286/357.  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.

*** 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 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 of

the Convention (art. 32-1, art. 47).  It originated in an

application (no. 12956/87) against the Italian Republic lodged with

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

Mr Loreto Cattivera, on 26 May 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.      On 23 April 1991 the President of the Court decided that,

pursuant to Rule 21 para. 6 of the Rules of Court and in the

interests of the proper administration of justice, this case and the

cases of Gilberti, Nonnis, Trotto, Nibbio, Borgese, Biondi,

Macaluso, Monaco, Seri, Manunza, Gori, Casadio, Testa, Lestini,

Covitti, Zonetti, Simonetti and Dal Sasso1 should be heard by the

same Chamber.

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1 Gilberti (19/1991/271/342); Nonnis (23/1991/275/346);

Trotto (26/1991/278/349); Nibbio (28/1991/280/351);

Borgese (29/1991/281/352); Biondi (30/1991/282/353);

Monaco (32/1991/284/355); Cattivera (34/1991/286/357);

Seri (35/1991/287/358); Manunza (37/1991/289/360);

Gori (45/1991/297/368); Casadio (52/1991/304/375);

Testa (53/1991/305/376); Lestini (54/1991/306/377);

Covitti (55/1991/307/378); Zonetti (56/1991/308/379);

Simonetti (57/1991/309/380); Dal Sasso (60/1991/312/383)

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3.      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 Thór Vilhjálmsson,

Mr F. Matscher, Mr J. Pinheiro Farinha, Mr L.-E. Pettiti,

Mr B. Walsh, Mr N. Valticos and Mr S.K. Martens (Article 43 in fine

of the Convention and Rule 21 para. 4) (art. 43).

Subsequently, Mr A. Spielmann, substitute judge, replaced

Mr Pinheiro Farinha, who had resigned and whose successor at the

Court had taken up his duties before the deliberations on 28 October

(Rules 2 para. 3 and 22 para. 1).

4.      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") and the Delegate

of the Commission on the organisation of the proceedings

(Rules 37 para. 1 and 38).  In accordance with the order made in

consequence, the Registrar received the Government's memorial

on 16 July 1991.  By a letter received on 22 September, the

Secretary to the Commission informed the Registrar that the Delegate

would submit his observations at the hearing.

5.      On 11 March the Registrar had sent to the applicant the

enquiry provided for in Rule 33 para. 3 (d).  After several

telephone conversations, Mr Cattivera's lawyer replied in writing,

on 7 October, that his client had not manifested an interest in the

proceedings pending before the Court.

Accordingly, the President instructed the Registrar to obtain the

opinion of the Government and the Delegate of the Commission

regarding the possibility of striking the case out of the list

(Rule 49 para. 2).  Their observations reached the registry

on 16 and 17 October.

6.      On 24 October the Chamber decided to dispense with the

hearing fixed for 28 October, having found that the conditions for

such derogation from the usual procedure were satisfied (Rules 26

and 38).

AS TO THE FACTS

7.      Mr Loreto Cattivera is an Italian national and resides at

Torano (Rieti).  The facts established by the Commission pursuant to

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

(paragraphs 16-19 of its report):

"16.    On 14 June 1984 the applicant took proceedings before the

Rome magistrate's court ('pretore') against the 'Istituto Nazionale

per l'Assicurazione contro gli Infortuni sul Lavoro' (INAIL) to

obtain a disability pension.

17.     According to the Government, the investigation began at the

hearing of 22 November 1984.  The records which they have submitted

for inclusion in the file nevertheless show that the initial hearing

took place on 5 July 1985.  On that date, the magistrate's court

ordered a medical opinion.  The expert appointed was sworn in at the

hearing of 13 January 1986.

18.     A further hearing took place on 9 May 1986 and at the close

of the hearing on 26 June 1986 the magistrate's court ordered the

INAIL to pay the applicant the allowance prescribed for a 20%

disability.  The text of the decision was lodged with the registry

on 25 August 1986.

19.     On 20 January 1987 the INAIL appealed against the above

decision and on 26 January 1987 the presiding judge of the Rome

District Court fixed the hearing before its competent chamber

for 7 February 1989.  [On 30 November], the court dismissed the

appeal by the INAIL.  The text of the judgment was lodged with the

registry on 28 May 1990.

20.     ... ."

8.      According to the information supplied by the Government to

the European Court, the District Court's decision has not been the

subject of an appeal to the Court of Cassation.

PROCEEDINGS BEFORE THE COMMISSION

9.      In his application of 26 May 1987 to the Commission

(no. 12956/87), Mr Cattivera complained of the length of the civil

proceedings brought by him; he relied on Article 6 para. 1

(art. 6-1) of the Convention.

10.     On 11 May 1990 the Commission declared the application

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 223-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

11.      By a letter of 7 October 1991 Mr Angelozzi, counsel for

Mr Cattivera before the Commission, informed the Court that, when he

had contacted his client in good time with a view to his

participation in the proceedings, the latter had shown no interest.

He confirmed this at the hearing on 28 October in the Nibbio,

Borgese, Biondi, Monaco and Lestini v. Italy cases.

The Government were consulted on whether the case should be struck

out of the list pursuant to Rule 49 para. 2 of the Rules of Court

and answered in the affirmative, in view of the applicant's

"expressed intention of withdrawing".

The Delegate of the Commission considered that the information

received from Mr Angelozzi gave insufficient details concerning the

real intentions of the applicant: it was not possible to determine

therefrom whether there was indeed a "fact of a kind to provide a

solution of the matter" (Rule 49 para. 2).  Furthermore, the

Delegate questioned whether it was possible to regard Mr Cattivera,

despite his "apparent silence", as having lost "any legal interest

in having the violation of the Convention ... established".  In any

event "the absence of a clear and unequivocal manifestation of

intention" precluded, in his view, saying that there had been a

withdrawal, "even an implied one".  Moreover the present case was

one of a number of cases which "should be placed in a context that

goes well beyond the interest of each applicant".

12.      According to Rule 49 para. 2 of the Rules of Court:

"When the Chamber is informed of a friendly settlement, arrangement

or other fact of a kind to provide a solution of the matter, it may,

after consulting, if necessary, the Parties, the Delegates of the

Commission and the applicant, strike the case out of the list."

Notwithstanding several reminders from the registry over a period of

almost seven months, and therefore well in excess of the usual

period of two weeks prescribed in Rule 33 para. 3 (d), the applicant

showed no interest in the proceedings before the Court.  In formal

terms there has not been a withdrawal for the purposes of

paragraph 1 of Rule 49 inasmuch as the applicant does not have the

status of a party to the proceedings, since Protocol No. 9 (P9),

which gives the individual applicant the right, subject to certain

conditions, to bring his case before the Court, has not yet come

into force (see the Owners' Services Ltd v. Italy judgment of

28 June 1991, Series A no. 208-A, p. 8, para. 10).  The Court

considers nevertheless that there has been in this case an implied

withdrawal which constitutes a "fact of a kind to provide a solution

of the matter".  It may indeed be questioned whether there can still

be said to be any dispute.

In addition, the Court discerns no reason of ordre public (public

policy) for continuing the proceedings (Rule 49 para. 4).  In this

connection it points out that in a number of previous cases it had

occasion to review the "reasonableness" of the length of civil

proceedings in various Contracting States, including Italy (see,

with regard to that country, the Pretto and Others judgment of

8 December 1983, the Capuano judgment of 25 June 1987, the Brigandì,

Zanghì and Santilli judgments of 19 February 1991 and the

Pugliese (II), Caleffi and Vocaturo judgments of 24 May 1991,

Series A nos. 71, 119, 194-B-C-D and 206-A-B-C).  In so doing it

specified the nature and the extent of the obligations arising in

this context from Article 6 para. 1 (art. 6-1) of the Convention.

Furthermore, a large number of cases which raise similar questions

and in which it is shortly to give judgment are still pending before

it.  Finally, according to information provided by the Delegate of

the Commission, 410 applications concerning compliance with the

"reasonable time" requirement, in Italy, are pending before the

Commission.

Accordingly, the case should be struck out of the list.  The Court

nevertheless reserves the right to restore the case to the list if a

new situation arises capable of justifying such a course.

FOR THESE REASONS AND WITH THIS RESERVATION, THE COURT UNANIMOUSLY

Decides to strike the case out of the list.

Done in English and in French, and notified in writing under

Rule 55 para. 2, second sub-paragraph, of the Rules of Court on

3 December 1991.

Signed: Rolv RYSSDAL

        President

Signed: Marc-André EISSEN

        Registrar

 

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