In the case of Diana 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 3/1991/255/326. 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 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. 11898/85) against the Italian Republic lodged with
the Commission under Article 25 (art. 25) by an Italian national,
Mr Giovanni Diana, on 3 October 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. 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 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, Cooperativa Parco
Cuma, Serrentino, Cormio, Lorenzi, Bernardini and Gritti and
Tumminelli* should be heard by the same Chamber.
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* Cases nos. 4/1991/256/327 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 the
applicant - whom the President had authorised to use the Italian
language (Rule 27 para. 3) - and the Government's memorial on
16 July 1991. 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 14 October and 5 November, respectively, the Government
and the Commission filed their observations on the applicant's
claims for just satisfaction (Article 50 of the Convention)
(art. 50).
AS TO THE FACTS
9. Mr Giovanni Diana is an Italian national and resides at
Rocchetta Di Cairo (Savona). The facts established by the
Commission pursuant to Article 31 para. 1 (art. 31-1) of the
Convention are as follows (paragraphs 16-25 of its report):
"16. By summons served on 12 and 14 April 1978, the applicant
brought an action against Mr Z. and Mrs V. before the Savona
District Court to establish that he had lawfully altered the
conditions governing the use of a right of way to which his property
was subject.
17. On 5 June 1981 the action was joined with two other actions
introduced in late November/early December 1979 and March 1981 to
determine respectively the extent of the right of way in question
and the abuses committed by Mr Z. and Mrs V. in using their right
of way.
18. In the interval, seven hearings had been held
on 26 May 1978, 6 October 1978, 19 January 1979, 19 April 1980,
30 May 1980, 31 October 1980 and 12 December 1980.
19. On 3 July 1981 the investigating judge ordered the parties
to appear in person by summoning them to the hearing of
17 November 1981, on which date he ordered an inspection of the
premises. This was carried out on 30 April 1982.
20. On 12 November 1982 the investigating judge summoned the
parties to appear at the hearing of 21 December 1982, when he
ordered a further inspection with a view to securing a friendly
settlement of the case.
21. The hearing was initially set down for 26 March 1983, but
was postponed to 16 April 1983 at the parties' request made
on 25 March 1983. On the appointed day the investigating judge,
considering that a friendly settlement of the case could not be
reached, cancelled the inspection in compliance with the applicant's
request.
22. Two further hearings took place on 3 and 17 June 1983, after
which the investigating judge was transferred. The next hearing
before the new judge was not held until 23 November 1984.
23. After the hearings of 1 and 29 March 1985, the investigating
judge invited the parties to make their final submissions at the
hearing of 12 July 1985, on which date he referred the case to the
appropriate chamber of the District Court.
24. The hearing before the court chamber took place
on 8 May 1987. The judgment, which found for the applicant, was
adopted on 28 May and filed with the registry on 12 August 1987.
25. On 23 October 1987 Mr Z. and Mrs V. appealed against the
decision of the Savona District Court. At the hearing of
28 April 1988 the parties made their final submissions and the case
was referred to the appropriate chamber of the Genoa Court of
Appeal, before which a hearing apparently took place
on 17 March 1989. On 5 October 1989 the appeal was dismissed.
The text of the decision was lodged with the registry
on 30 October 1989.
26. ... ."
10. According to the information supplied to the European Court
by the applicant, the Court of Appeal's judgment became final on
29 January 1990.
PROCEEDINGS BEFORE THE COMMISSION
11. Mr Diana lodged his application with the Commission on
3 October 1985. 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. 11898/85) 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-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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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
12 April 1978 when the proceedings against Mr Z. were instituted in
the Savona District Court. It ended, at the latest, on
29 January 1990 when the Court of Appeal's judgment became final.
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 and the
legal issues, as well as the excessive workload of the relevant
courts. In addition, the applicant had not requested that his case
be examined more rapidly.
Mr Diana maintained that such a step would have been ineffective and
complained of the lack of staff at the Savona District Court.
17. The case was indeed one of some complexity, which was
increased on 5 June 1981 following its joinder with two other cases.
The investigation lasted more than seven years, during which the
investigating judge held numerous hearings. Several of them
concerned the attempt to secure an out-of-court settlement and the
parties caused the adjournment of those of 25 March and
16 April 1983, for which circumstances the State cannot be held
responsible. At that point the investigating judge was transferred
and the proceedings remained dormant until he was replaced,
approximately seventeen months later (17 June 1983
- 23 November 1984).
Furthermore there was a long period of stagnation of nearly
twenty-one months before the competent chamber of the District Court
(12 July 1985 - 8 May 1987).
The Government pleaded the backlog of cases in the relevant courts,
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).
It is true that the proceedings were thereafter conducted at an
acceptable pace; thus the District Court's judgment was filed with
the registry two and a half months after its delivery, and the Court
of Appeal's judgment twenty-five days after it had been given.
18. However, the Court cannot regard as "reasonable" the lapse
of time in the present case.
There has therefore been a violation of Article 6 para. 1
(art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
19. 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
20. Mr Diana claimed in the first place 100,000,000 Italian lire
in respect of pecuniary damage and compensation for non-pecuniary
damage, for which he did not give any figure.
In the Government's contention, he did not sustain any pecuniary
damage; as to non-pecuniary damage, a finding of a violation would
in itself provide sufficient just satisfaction for the purposes of
Article 50 (art. 50).
21. There is no evidence that the violation found caused the
applicant pecuniary damage. On the other hand, he must have
suffered a degree of non-pecuniary damage for which the Court,
making an assessment on an equitable basis, awards him
2,000,000 lire.
B. Costs and expenses
22. Mr Diana also sought 10,000,000 Italian lire in respect of
costs incurred before the Convention organs.
Having regard to the evidence at its disposal and its case-law in
this field, the Court awards 2,000,000 lire under this head.
C. Interest
23. 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.
24. 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 respondent State is to pay to the applicant,
within three months, 2,000,000 (two million) Italian lire for
non-pecuniary damage and 2,000,000 (two million) lire for costs and
expenses;
3. 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