In the case of Ciricosta and Viola v. Italy (1),
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 Rules of Court B (2), as a Chamber composed of the
following judges:
Mr R. Bernhardt, President,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr C. Russo,
Mr A. Spielmann,
Mr A.N. Loizou,
Sir John Freeland,
Mr J. Makarczyk,
Mr D. Gotchev,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 28 September and
21 November 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
1. The case is numbered 5/1995/511/594. 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.
2. Rules of Court B, which came into force on 2 October 1994, apply
to all cases concerning the States bound by Protocol No. 9 (P9).
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PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 18 January 1995, 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. 19753/92) against the Italian Republic lodged with the
Commission under Article 25 (art. 25) by two Italian nationals,
Mr Michelangelo Ciricosta and Mrs Rosina Viola, on 3 March 1992.
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
application 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) of the Convention.
2. In response to the enquiry made in accordance with Rule 35
para. 3 (d) of Rules of Court B, the applicants stated that they wished
to take part in the proceedings and designated the lawyer who would
represent them (Rule 31). The lawyer was given leave by the President
of the Chamber to use the Italian language (Rule 28 para. 3).
3. On 5 May 1995 the President decided, under Rule 21 para. 7 and
in the interests of the proper administration of justice, that a single
Chamber should be constituted to consider the instant case and the case
of Terranova v. Italy (1).
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1. Case no. 28/1995/534/620.
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4. The Chamber to be constituted for that purpose included ex
officio Mr C. Russo, the elected judge of Italian nationality
(Article 43 (art. 43) of the Convention), and Mr R. Bernhardt, the
Vice-President of the Court (Rule 21 para. 4 (b)). On the same day,
in the presence of the Registrar, Mr R. Ryssdal, the President of the
Court, drew by lot the names of the other seven members, namely
Mr F. Gölcüklü, Mr F. Matscher, Mr A. Spielmann, Mr A.N. Loizou,
Sir John Freeland, Mr J. Makarczyk and Mr D. Gotchev (Article 43 in
fine of the Convention and Rule 21 para. 5) (art. 43).
5. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the Italian
Government ("the Government"), the applicants' lawyer and the Delegate
of the Commission on the organisation of the proceedings (Rules 39
para. 1 and 40). Pursuant to the order made in consequence, the
Registrar received the Government's and the applicants' memorials on
28 July 1995. The Delegate of the Commission submitted his
observations at the hearing.
6. On 21 July 1995 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
27 September 1995. 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, magistrato, Deputy Director
of the Legislation Office,
Ministry of Justice, Counsel,
Mrs S. Feriozzi, member of the Permanent
Delegation of Italy to the Council of Europe, Adviser;
(b) for the Commission
Mr N. Bratza, Delegate;
(c) for the applicants
Mr G. Saccomanno, avvocato, Counsel.
The Court heard addresses by Mr Bratza, Mr Saccomanno, Mr Manzo
and Mr Raimondi, and Mr Saccomanno's reply to a question put by one of
its members.
AS TO THE FACTS
8. Mr Michelangelo Ciricosta and Mrs Rosina Viola live in Rosarno
(Reggio di Calabria).
9. On 4 July 1980 they applied to the Palmi magistrate (pretore),
under the urgent procedure laid down for the purpose, bringing an
action for protection against new works likely to interfere with
possession (azione possessoria e denuncia di nuova opera). They sought
interim injunctions suspending works which Mr L. had begun on land
adjoining their property belonging to his father-in-law, and requiring
him to restore the land to its former state. Mr L. had modified the
rainwater drainage system, changed the use of a road belonging to the
applicants and built a forge on the land.
10. On 17 July 1980 the magistrate directed the parties to appear
before him on 4 August 1980. On that date the applicants sought leave
for witnesses to be heard and the magistrate granted it. At a hearing
on 29 September 1980 the parties obtained an adjournment. Between
22 October 1980 and 17 February 1981 the magistrate held five further
hearings. At the first of these, six witnesses were heard. At the
second hearing the parties filed documentary evidence, which was
examined by the magistrate at the third. At the next hearing the
magistrate ordered an expert opinion to be produced, and this was filed
on 19 January 1981.
11. On 5 March 1981 the magistrate granted the injunctions sought by
the applicants, ordered the land to be restored to its former state at
the defendant's expense and adjourned the proceedings on the merits
until 1 June 1981.
On 3 April he dismissed an application in which the defendant had
asked him to set aside the decision of 5 March.
12. On 6 December 1982, after six preparatory hearings had been held
between 1 June 1981 and 5 July 1982, the parties requested an
adjournment. The next three hearings were adjourned at the defendant's
request, without any objection by the applicants.
13. On 5 December 1983 Mr L. asked the judge to summon the expert,
and this was done on 9 December. At a hearing on 5 March 1984 the
expert answered a number of questions and the magistrate then fixed a
hearing on 4 June for the filing of final submissions. On that date
the applicants filed their final submissions, but the defendant
successfully applied for a further adjournment. Counsel for both
parties arrived late at a hearing on 2 July 1984 and requested an
adjournment. On 7 January 1985 the defendant sought leave to submit
new evidence, but this application was refused on 21 January.
14. The magistrate adjourned the next seven hearings (at the
applicants' request on 4 March and 20 July 1985; at Mr L.'s request on
6 May 1985; at the request of both parties on 3 December 1986,
18 March 1987 and 17 February 1988; and of his own motion on
3 February 1986).
15. On 18 May 1988 the lawyer acting for Mr Ciricosta and Mrs Viola
was given more time to submit observations on a document filed by the
defendant. On 6 July the parties merely requested a further
adjournment. On 5 October the applicants filed fresh submissions and
Mr L. successfully applied for an adjournment.
Between 1 March 1989 and 16 January 1991 the judge granted six
adjournments at the parties' joint request.
16. The hearing set down for 2 October 1991 could not be held, as the
magistrate had been transferred. At hearings on 14 April and
10 November 1993 the parties sought adjournments. The new magistrate
set the case down for trial on 8 June 1994, but the proceedings were
further delayed when the Palmi magistrate's court suspended all
sittings because the registry was inadequately staffed.
17. On 22 March 1995 the applicants again applied for an adjournment.
The magistrate summoned the parties to appear on 24 January 1996.
PROCEEDINGS BEFORE THE COMMISSION
18. Mr Ciricosta and Mrs Viola applied to the Commission on
3 March 1992. They complained that their case had not been heard
within a reasonable time as required by Article 6 para. 1 (art. 6-1)
of the Convention.
19. The Commission (First Chamber) declared the application
(no. 19753/92) admissible on 2 September 1994. In its report of
30 November 1994 (Article 31) (art. 31), it expressed the opinion by
ten votes to four that there had been no violation of Article 6
para. 1 (art. 6-1). The full text of the Commission's opinion and of
the dissenting opinion contained in the report is reproduced as an
annex to this judgment (1).
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1. Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 337-A 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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FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
20. In their memorial the Government asked the Court to hold that
there had been no violation of Article 6 para. 1 (art. 6-1) of the
Convention.
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION
21. The applicants complained of the length of the proceedings
brought by them in the Palmi magistrate's court. They alleged a
violation of Article 6 para. 1 (art. 6-1) of the Convention, which
provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal..."
22. The Government and the Commission rejected this allegation.
23. The period to be taken into consideration began on 4 July 1980,
when the action was brought in the Palmi magistrate's court. The
summary proceedings ended on 5 March 1981 (see paragraphs 9-11 above);
the proceedings on the merits are still pending (see paragraphs 12-17
above); the next hearing has been fixed for 24 January 1996.
24. The reasonableness of the length of proceedings must be assessed
in the light of the particular circumstances of the case and having
regard to the criteria laid down in the Court's case-law, in particular
the complexity of the case and the conduct of the applicant and of the
relevant authorities (see, among other authorities, the Vernillo v.
France judgment of 20 February 1991, Series A no. 198, p. 12,
para. 30).
25. The Court notes at the outset that those appearing before it did
not maintain that the case was complex and agreed that the summary
stage of the proceedings, from 4 July 1980 to 5 March 1981 (see
paragraphs 9-11 above), had been completed with acceptable expedition,
in eight months and one day. They disagreed about the preparation of
the case for trial on the merits, which began on 1 June 1981 and has
still not been completed (see paragraphs 11 and 17 above).
26. The Government referred to the opinion of the Commission, which
had concluded that there had been no violation of the Convention; they
submitted that the length of the proceedings was entirely attributable
to the inertia and dilatory conduct of the parties, especially the
applicants. Having been responsible for a very large number of
adjournments, either because they had requested them themselves or
because they had not objected to them, Mr Ciricosta and Mrs Viola were
now hardly in a position to complain of any delay. Moreover, although
in Italy it was "essentially for the parties to take the initiative
with regard to the progress of civil proceedings" (principio
dispositivo), the applicants had never asked for their case to be dealt
with more speedily.
Lastly, in 1990 the Italian Parliament had adopted measures
calculated to speed up civil proceedings by introducing a system of
time-limits (modified in 1995) which obliged parties to adduce their
evidence by the second hearing, and by creating a new judicial
authority, the justice of the peace (giudice di pace), in order to
relieve stipendiary magistrates of the less important cases.
27. The applicants complained that the magistrate had been negligent
in never asking the parties to file their final submissions, which
would have put an end to the allegedly dilatory conduct. While
admitting that they had been responsible for delays amounting to a
total of approximately three years and nine months, they asserted that
the magistrate dealing with the case had always allowed applications
for adjournments and they criticised the long intervals between
hearings. This was a "direct consequence of the enormous workload" of
the Italian judiciary, particularly in Calabria.
Lastly, revising the Code of Civil Procedure would not solve the
real problem of the administration of justice in Italy, namely the
perpetual shortage of resources and staff at all levels of the judicial
system.
28. The Court reiterates in the first place that only delays
attributable to the State may justify a finding of failure to comply
with the "reasonable time" requirement (see, among other authorities,
the Vernillo judgment previously cited, p. 13, para. 34, and the Monnet
v. France judgment of 27 October 1993, Series A no. 273-A, p. 12,
para. 30). In the instant case, the relevant court was undoubtedly
responsible for a number of delays. The hearing of 3 February 1986 was
postponed by the magistrate of his own motion; the hearing of
2 October 1991 did not take place because the magistrate had been
transferred; then, from 8 June 1994 to 22 March 1995, the Palmi
magistrate's court suspended all sittings for lack of registry staff
(see paragraphs 14, 16 and 17 above). Moreover, with the exception of
the summary stage (see paragraphs 9-12 and 25 above), the proceedings
do not seem to have been conducted efficiently.
However, the Court considers that the conduct of the relevant
authorities was not in this case primarily responsible for the length
of the proceedings.
29. Like the Commission, it notes that during the preparation of the
case for trial on the merits, which is still pending, the applicants -
either alone or in agreement with the defendant - requested at least
seventeen adjournments and did not object to six adjournments requested
by Mr L. The evidence lends no support to the applicants' allegation
that all the applications for adjournments were accounted for by the
magistrate's excessive workload.
30. While it is true that the "principio dispositivo", to which civil
proceedings in Italy are subject, does not dispense the courts from
ensuring compliance with the requirements of Article 6 (art. 6), it
makes the parties responsible for taking the initiative with regard to
the progress of the proceedings (see, mutatis mutandis, the Scopelliti
v. Italy judgment of 23 November 1993, series A no. 278, p. 9,
para. 25). In the instant case, as the Government and the Commission
rightly pointed out, Mr Ciricosta and Mrs Viola never took any steps
to have their case dealt with more speedily.
31. The Court notes that the Italian Parliament has tried to remedy
the slow workings of justice by revising the Code of Civil Procedure
and instituting justices of the peace. It is not appropriate at this
stage to speculate about measures which have been in force only since
April and May 1995.
32. In conclusion, even though a period of more than fifteen years
for civil proceedings that are still pending may, on the face of it,
seem unreasonable, the conduct of the applicants, who requested a
further adjournment as recently as 22 March 1995, thus putting the case
back until 24 January 1996, leads the Court to declare Mr Ciricosta's
and Mrs Viola's complaint unfounded.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no breach of Article 6 para. 1
(art. 6-1) of the Convention.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 4 December 1995.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar
Full & Egal Universal Law Academy