In the case of Cesarini 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. Bernhardt, President,
Mr F. Gölcüklü,
Mr C. Russo,
Mr A. Spielmann,
Mrs E. Palm,
Mr J.M. Morenilla,
Sir John Freeland,
Mr A.B. Baka,
Mr M.A. Lopes Rocha,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 25 June and
22 September 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 77/1991/329/402. 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.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on
13 September 1991, 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. 11892/85)
against the Italian Republic lodged with the Commission under
Article 25 (art. 25) by an Italian national, Mr Franco Cesarini,
on 11 September 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).
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 and designated the
lawyer who would represent him (Rule 30).
3. 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 28 September
1991, in the presence of the Registrar, Mr J. Cremona, the
Vice-President of the Court, drew by lot the names of the other
seven members, namely Mr F. Gölcüklü, Mr A. Spielmann,
Mr N. Valticos, Mrs E. Palm, Mr J.M. Morenilla, Mr A.B. Baka and
Mr M.A Lopes Rocha (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43). Subsequently Mr R. Bernhardt,
substitute judge, replaced Mr Valticos, who was unable to take
part in the further consideration of the case (Rules 22 para. 1
and 24 para. 1).
4. 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 lawyer for the applicant on the organisation
of the procedure (Rules 37 para. 1 and 38). Pursuant to the
order made in consequence, the Registrar received the
Government's memorial on 12 March 1992. In a letter received on
16 April the Secretary to the Commission informed him that the
Delegate would submit his observations at the hearing.
5. Also on 16 April the Commission produced the file on the
proceedings before it, as requested by the Registrar on the
President's instructions.
6. On 29 May the Government filed their observations on the
claims for just satisfaction (Article 50) (art. 50) which the
applicant had communicated to the Registrar on 27 February.
7. In accordance with the decision of the President, who had
given the applicant leave to use the Italian language
(Rule 27 para. 3), the hearing took place in public in the Human
Rights Building, Strasbourg, on 22 June 1992. 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,
Mrs A. Passannanti, both magistrati, on secondment
to the Ministry of Justice, Counsel;
(b) for the Commission
Mr J.A. Frowein, Delegate;
(c) for the applicant
Mr M. de Stefano, avvocato, Counsel.
The Court heard addresses and statements by Mr Raimondi
and Mr Manzo for the Government, Mr Frowein for the Commission
and Mr de Stefano for the applicant.
8. As Mr Ryssdal was unable to attend the final
deliberations on 22 September 1992, his place as President of the
Chamber was taken by Mr Bernhardt, the Vice-President of the
Court (Rule 21 para. 5, second sub-paragraph, and see paragraph
3 above in fine); Sir John Freeland, substitute judge, replaced
Mr Ryssdal as a member of the Chamber (Rules 22 para. 1
and 24 para. 1).
AS TO THE FACTS
9. Mr Franco Cesarini resides in Rome. The facts
established by the Commission pursuant to Article 31 para. 1
(art. 31-1) of the Convention are as follows (see
paragraphs 15-21 of its report):
"15. On 10 September 1982 the applicant instituted
proceedings against his employer, company O., before the
Rome magistrate's court (pretore) seeking a ruling that
his lay-off on 14 June 1982 had been unlawful and that he
was entitled to payment of his wages as from that date.
16. The investigative stage of the proceedings began
at a hearing on 2 March 1983. The following hearing,
originally due to be held on 18 May 1983, was adjourned
by the court until 10 June 1983. A third hearing took
place on 13 October 1983.
17. On 9 February 1984 the magistrate's court
dismissed the applicant's suit. The text of the judgment
with the reasons therefor was filed with the registry on
5 April 1984.
18. On 29 March 1985 the applicant, who had been
dismissed in the intervening period, appealed against
this judgment ...
19. On 4 April 1985 the President of the Rome District
Court arranged for the hearing before that court to take
place on 18 November 1986; at this hearing the court
found against the applicant. The text of the judgment
was filed with the registry on 21 April 1987.
20. On 25 March 1988 the applicant gave notice of an
appeal to the Court of Cassation ... . The appeal was
lodged with the registry of the Court of Cassation on
12 April 1988. The hearing before that court was
arranged for 22 February 1989.
21. On 19 January 1989 the applicant and company O.
reached a friendly settlement. On 7 February 1989, as a
result of this settlement, the applicant withdrew his
appeal. On 22 February 1989 the Court of Cassation noted
the applicant's withdrawal of his action and closed the
proceedings."
10. According to the information supplied to the Court by the
Government, Mr Cesarini had requested the Rome magistrate's court
as early as 10 June 1982, as an emergency measure (provvedimento
d'urgenza, Article 700 of the Code of Civil Procedure), to order
company O. to pay him the salary due to him from 14 June 1982 to
the date of judgment.
11. The relevant provisions of the Code of Civil Procedure
provide for two periods for bringing appeals. The first,
generally known to lawyers as the "short" period, is normally
thirty days from notification of the decision of the court of
first instance (Article 434), notification always taking place
on the initiative of one of the parties (Article 285). In
default of notification, an appeal may be brought within a
different period, known as the "long" period, which lasts for one
year from publication of the contested decision by filing with
the registry of the court of first instance (Articles 327 and
430).
Appeals to the Court of Cassation are subject to similar
rules, except that the "short" period is sixty days.
In employment cases these periods are not suspended
during the judicial vacations.
PROCEEDINGS BEFORE THE COMMISSION
12. The applicant applied to the Commission on
11 September 1985. Relying on Article 6 para. 1 (art. 6-1) of
the Convention, he complained of the length of the civil
proceedings brought by him.
13. The Commission declared the application (no. 11892/85)
admissible on 11 May 1990. In its report of 10 July 1991 (made
under Article 31) (art. 31), it expressed the opinion by fourteen
votes to five that there had been a violation of
Article 6 para. 1 (art. 6-1). The full text of the Commission's
opinion and of the two dissenting opinions 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
245-B of Series A of the Publications of the Court), but a copy
of the Commission's report is available from the registry.
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GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT
14. At the hearing the Government asked the Court to hold
that there had not been a violation of the Convention in the
case.
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 6 para. 1 (art. 6-1)
15. The applicant maintained that his civil action had not
been examined within the "reasonable time" laid down in
Article 6 para. 1 (art. 6-1) of the Convention, which states
that:
"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 argument, but the Commission
accepted it.
16. The period to be taken into consideration started not on
10 September 1982, when proceedings were instituted against
company O. (see paragraph 9 above, at no. 15), but on 10 June of
that year, when the applicant requested the Rome magistrate's
court to adopt an emergency measure (see paragraph 10 above).
It ended on 22 February 1989, when the Court of Cassation noted
that the applicant had withdrawn the action and closed the
proceedings (see paragraph 9 above, at no. 21). It thus lasted
for more than six years and eight months.
17. The reasonableness of the length of proceedings is to be
determined 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.
18. The Government criticised the applicant for having
remained inactive for a total of over two years and for not at
any stage having asked for his case to be dealt with more
rapidly.
19. Mr Cesarini acknowledged that he had not appealed to the
District Court and the Court of Cassation until near the end of
the "long" period (see paragraph 9 above, at nos. 17-20, and
paragraph 11). He explained this by reference to his attempts
to obtain a friendly settlement, which had been reached only on
19 January 1989 (see paragraph 9 above, at no. 21). He argued
that the judicial authorities bore the entire responsibility for
the "reasonable time" being exceeded, especially as the law laid
down short time-limits for employment cases.
20. The Court, in agreement with the Commission, finds that
there were several periods of inactivity: the magistrate's court
waited seventeen months before taking a decision and the Rome
District Court waited twenty months before examining
Mr Cesarini's appeal.
Nevertheless, having regard to the applicant's attitude,
to the fact that the case came before three different courts and
to the friendly settlement, the delays that occurred do not
appear substantial enough for the total length of the proceedings
to be able to be regarded as excessive.
21. There has therefore been no breach of Article 6 para. 1
(art. 6-1).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no breach of Article 6 para. 1
(art. 6-1).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
12 October 1992.
Signed: For the President
Alphonse SPIELMANN
Judge
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy