In the case of Cooperativa Parco Cuma 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 29 October 1991 and
24 January 1992,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 50/1991/302/373. 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 on 19 April 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. 12145/86) against the Italian Republic lodged with
the Commission under Article 25 (art. 25) by an Italian co-operative
association, Cooperativa Parco Cuma, on 25 February 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, the applicant association
stated that it wished to take part in the proceedings and designated
the lawyer who would represent it (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, Cappello, G. v. Italy,
Caffè Roversi S.p.a., Andreucci, Gana, Barbagallo, Cifola,
Pandolfelli and Palumbo, Arena, Pierazzini, Tusa, Serrentino,
Cormio, Lorenzi, Bernardini and Gritti and Tumminelli* should be
heard by the same Chamber.
_______________
* 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; 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;
51/1991/303/374; 58/1991/310/381; 59/1991/311/382; 61/1991/313/384
_______________
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 hearing, 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). Pursuant to the order made in
consequence, the Registrar received the applicant's memorial on
12 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 would submit oral observations.
6. On 28 August the Commission produced the file on the
proceedings before it, as requested by the Registrar on the
President's instructions.
7. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg, on
29 October 1991. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr G. Raimondi, magistrato,
seconded to the Diplomatic Legal
Service of the Ministry of Foreign Affairs, Co-Agent,
Mr G. Manzo, magistrato, seconded to the
Ministry of Justice,
Mrs A. Passannanti, magistrato, seconded to the
Ministry of Justice, Counsel;
(b) for the Commission
Mr J.A. Frowein, Delegate;
(c) for the applicant
Mr G. de Sangro, avvocato, Counsel.
The Court heard addresses by Mr Raimondi and Mrs Passannanti
for the Government, by Mr Frowein for the Commission and by
Mr de Sangro for the applicant, as well as their answers to its
question.
8. On 10 October the Government had filed their observations on
the applicant's claims for just satisfaction (Article 50 of the
Convention) (art. 50); on 5 November the Commission lodged its
observations on those claims.
AS TO THE FACTS
9. The applicant is a building association whose registered
office is in Naples. The facts established by the Commission
pursuant to Article 31 para. 1 (art. 31-1) of the Convention are as
follows (paragraphs 17-25 of its report):
"17. By summons served on 3 November 1980, the applicant
association took proceedings before the Naples District
Court against nine co-owners of the building for whose
construction it had been responsible, claiming payment of
sums which it was owed as part of the joint expenditure.
18. Before the investigation opened, the applicant
discontinued proceedings against five members who had paid
it the outstanding sums. One member, Mrs I., from whom the
applicant demanded payment of 818,726 Italian lire,
contested the validity of its claims. Three other members
did not appear in court.
19. The investigation opened at the hearing of
16 December 1980, followed by hearings on 17 March, 9 June
(when counsel for the defendants requested an adjournment as
the applicant's counsel was absent) and 5 November 1981.
20. At the hearings of 23 February and 11 May 1982, the
applicant asked for Mrs I. to be examined but counsel for
the defendants objected.
21. Two hearings were held on 24 June and
23 November 1982, when the investigating judge decided to
examine Mrs I. and Mr Q., the general manager of the
applicant association.
22. At the hearing of 29 March 1983, neither Mrs I. nor
Mr Q. was present. Mr Q. appeared at the hearing of
5 July 1983, adjourned at the request of the defendants.
Mrs I. was heard on 13 December 1983. At no stage was Mr Q.
examined.
23. Two further hearings took place on 15 May and
13 November 1984. The parties then made their final
submissions at the hearing of 24 October 1985 and the
investigating judge referred the case to the competent
chamber of the court. The hearing before it was fixed for
24 June 1987. The applicant asked for an earlier date, but
on 23 January 1986 the presiding judge of the District Court
refused the request owing to the heavy case-load.
24. After the hearing of 24 June 1987 the court chamber,
by order of 8 July 1987 registered on 25 September 1987,
referred the case back to the investigating judge because
the summons of 3 November 1980 had not been duly served on
two of the three members who had been declared in default.
25. The hearing before the investigating judge was fixed
for 2 February 1988. Three hearings took place on
25 October 1988 (when the applicant discontinued proceedings
against the two members who had not been duly summonsed),
15 December 1988 and 30 March 1989. On that date, the
parties made their final submissions and the investigating
judge fixed the hearing before the competent chamber of the
court for 3 April 1991."
10. According to the information supplied to the European Court
by the applicant, the next hearing before the District Court is
scheduled for 25 March 1992.
PROCEEDINGS BEFORE THE COMMISSION
11. Cooperativa Parco Cuma lodged its application with the
Commission on 25 February 1986. It complained of the length of the
civil proceedings brought by it and relied on Article 6 para. 1
(art. 6-1) of the Convention.
12. On 11 May 1990 the Commission declared the application
(no. 12145/86) admissible. In its report of 5 March 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*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 231-E
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
13. At the hearing the Government confirmed the submission put
forward in their memorial, in which they requested the Court to hold
"that there [had] been no violation of the Convention in the present
case".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
14. The applicant association claimed that its 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.
15. The period to be taken into consideration began on
3 November 1980, when the proceedings were instituted against the
defendants in the Naples District Court. It has not yet ended as
that court has still to give judgment.
16. 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.
17. The Government invoked the applicant association's conduct
and the excessive workload of the District Court. The applicant
asserted, on the contrary, that its conduct was not open to
criticism and that the investigating judge bore the entire
responsibility for the delays in the first stage of the proceedings.
18. The Court notes that the investigation took more than eight
years and three months (16 December 1980 - 30 March 1989). A
further two years then elapsed before the date fixed for the trial
hearing (3 April 1991), which is finally to be held on
25 March 1992, at the earliest.
As regards the first period, the Court points out that the
applicant association caused one adjournment (9 June 1981).
However, the Commission rightly drew attention to a period of
inactivity from 24 October 1985 to 24 June 1987. Moreover the judge
waited until the hearing on 23 November 1982 before ordering that
certain witnesses be called - Mrs I. and Mr Q. -, witnesses whom the
applicant had proposed calling on 23 February and 11 May 1982.
Mrs I. was not in fact examined until 13 December 1983 and the
examination of Mr Q. never took place. Yet these were investigative
measures which fell to be carried out within the context of judicial
proceedings supervised by the judge, who remained responsible for
the preparation of the case and for the speedy conduct of the trial
(see the Capuano v. Italy judgment of 25 June 1987, Series A
no. 119, p. 13, para. 30). Finally the Naples District Court waited
until 8 July 1987 before finding that the summons of 3 November 1980
had not been served on certain defendants and it did not file its
order until 25 September 1987.
The second period, which began on 30 March 1989, coming as
it did after the first, made the situation worse. The Government
pleaded the backlog of cases, 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).
19. Taking the proceedings as a whole, the Court cannot regard
as "reasonable" in this instance their total duration, which already
amounts to more than eleven years, in a case which is still pending
at first instance.
There has therefore been a violation of Article 6 para. 1
(art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
20. 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
21. The applicant association claimed in the first place, in
respect of pecuniary damage, 3,085,241 Italian lire plus interest
and adjusted to the appropriate inflation rate and, in respect of
non-pecuniary damage, 100 lire for itself and 10,000,000 lire for
the municipality of Pozzuoli or any other public body in order to
enable certain work to be carried out.
The Commission took the view that, in addition to reparation
for non-pecuniary damage, the association was entitled to
compensation for any pecuniary damage sustained by it, if it
succeeded in establishing its existence and that of a causal
connection with the violation found.
The Government could not perceive any such causal
connection. As to non-pecuniary damage, a finding of a violation
would constitute sufficient just satisfaction for the purposes of
Article 50 (art. 50).
22. The Court shares this opinion.
B. Costs and expenses
23. The applicant association also sought the reimbursement of
the costs and expenses which it had incurred in the national courts
and then before the Convention organs in amounts of 13,547,620 and
3,090,334 lire respectively.
24. The first sum cannot be taken into consideration because it
does not appear from the evidence that the applicant incurred such
costs in order to prevent the breach of the "reasonable time"
requirement of Article 6 para. 1 (art. 6-1). On the other hand, having
regard to the evidence at its disposal and to its case-law in this
field, it awards the association the second sum in its entirety.
C. Interest
25. 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.
26. 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 present judgment constitutes in itself, in
respect of any non-pecuniary damage, sufficient just
satisfaction for the purposes of Article 50 (art. 50);
3. Holds that the respondent State is to pay to the applicant
association, within three months, 3,090,334 (three million
ninety thousand three hundred and thirty four) Italian lire
for costs and expenses;
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
27 February 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy