In the case of De Micheli 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 Thór Vilhjálmsson,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr C. Russo,
Mr N. Valticos,
Mr S.K. Martens,
Mrs E. Palm,
Mr F. Bigi,
and also of Mr M.-A. Eissen, Registrar,
Having deliberated in private on 29 October 1992 and
2 February 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
* The case is numbered 9/1992/354/428. 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.
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PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 13 April 1992,
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. 12775/87) against the Italian Republic
lodged with the Commission under Article 25 (art. 25) by an
Italian national, Mrs Roberta De Micheli, on 27 February 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. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated
that she wished to take part in the proceedings and designated
the lawyer who would represent her (Rule 30).
3. On 25 April 1992 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 Pizzetti,
F.M., Salesi, Trevisan, Billi and Messina v. Italy* should be
heard by the same Chamber.
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* Cases nos. 8/1992/353/427 and 10/1992/355/429 to
14/1992/359/433.
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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 Thór Vilhjálmsson,
Mr F. Matscher, Mr L.-E. Pettiti, Mr N. Valticos,
Mr S.K. Martens, Mrs E. Palm and Mr F. Bigi (Article 43
in fine of the Convention and Rule 21 para. 4) (art. 43).
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, on 16 July 1992, the memorial of the applicant - whom
the President had given leave to use the Italian language
(Rule 27 para. 3). By a letter of 21 May the Government had
stated that they wished to refer the Court to their observations
before the Commission.
6. On 26 May the Chamber had decided to dispense with a
hearing, having found that the conditions for such a derogation
from the usual procedure were satisfied (Rules 26 and 38).
7. On 3 September the Commission produced the file on the
proceedings before it, as requested by the Registrar on the
President's instructions.
8. As Mr Ryssdal was unable to attend the deliberations on
29 October, he was replaced as President of the Chamber by
Mr R. Bernhardt, the Vice-President of the Court (Rule 21
para. 5, second sub-paragraph).
9. On 20 October 1992 the Government had filed their
observations on the applicant's claims for just satisfaction
(Article 50 of the Convention) (art. 50). The latter's reply
reached the registry on 6 November 1992 and the comments of the
Delegate of the Commission on 8 November.
10. On 12 November the Government communicated to the
Registrar certain additional information concerning the facts of
the case.
AS TO THE FACTS
11. Mrs Roberta De Micheli resides in Rome. The facts
established by the Commission pursuant to Article 31 para. 1
(art. 31-1) of the Convention are as follows (paragraphs 17-23
of its report):
"17. On 25 August 1986 the applicant was served with an
injunction granted to the company Z. by the President of
the Udine District Court on 29 July 1986 ordering her to
pay the company the sum of ITL 700 million (approximately
3,500,000 French francs). The order contained an
immediate enforcement clause. The applicant appealed
against the order, instituting proceedings against the
company Z. before the Udine District Court through a writ
of summons served on 16 September 1986.
18. The case was placed on the list on an unspecified
date.
The investigation began at the hearing of
20 October 1986 and continued until that of
21 November 1988.
19. ... on 27 October 1986, the investigating judge
rejected the request made by the applicant at the first
hearing that immediate enforcement of the order to pay be
suspended, and adjourned examination of the case until
8 June 1987.
20. On 27 January 1987 the applicant then asked the
investigating judge to arrange a hearing on an earlier
date; this was refused on 3 February 1987, on the ground
of the court's excessive case-load.
21. Following the hearing of 8 June 1987, a hearing
was arranged for 11 January 1988 so that the parties could
make their final submissions. However, it was not
possible to hold the hearing on that date because, in the
meantime, the investigating judge had been transferred.
It was finally held on 21 November 1988, i.e. more than
one year and five months later.
22. Following the above hearing, the case was referred
to the competent division of the court to be examined at
the hearing of 22 June 1989. However, the division in
question sent the file back to the investigating judge for
further investigation (discovery of documents). The
documents required were produced at the hearing of
11 December 1989, i.e. nearly six months later. The court
then reserved judgment.
23. In a judgment dated 25 October 1990, deposited
with the registry on 17 December 1990, the Udine District
Court annulled the [impugned] injunction ..."
12. According to the information supplied by the Government
(see paragraph 10 above), that decision became final on
25 March 1991.
PROCEEDINGS BEFORE THE COMMISSION
13. Mrs De Micheli lodged her application with the Commission
on 27 February 1987. Relying on Article 6 para. 1 (art. 6-1) of
the Convention, she complained of the length of the civil
proceedings instituted by her.
14. On 8 July 1991 the Commission declared the application
(no 12775/87) admissible. In its report of 13 January 1992 (made
under 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 257-D 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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AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
15. The applicant alleged that her civil action had not been
tried within a "reasonable time" as required by 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 ..."
16. The period to be taken into consideration began on
16 September 1986, when the Z. company was summonsed before the
Udine District Court. It ended on 25 March 1991, on which date
the judgment of that court became final.
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 invoked the backlog of cases in the
competent court; they attributed this in part to the frequent
transfers of judges and to the relative difficulty of replacing
them.
19. The applicant attacked the Italian State's failure to take
appropriate action in the field of the administration of justice.
She complained of the long periods during which the judicial
authorities had remained inactive.
20. The Court finds in the first place that the case was not
a complex one, which moreover the Government acknowledged. It
then observes, like the Commission, that there were two periods
during which the proceedings stagnated, namely from 8 June 1987
to 21 November 1988 and from 11 December 1989 to 25 October 1990
(see paragraph 11 above, nos. 21-23).
It notes in addition that during the first of the
above-mentioned periods, the applicant unsuccessfully requested
that the date of the hearing be brought forward (see
paragraph 11 above, no. 20).
As regards the argument based on the excessive workload of
the competent court, it should be recalled that Article 6
para. 1 (art. 6-1) imposes on the Contracting States the duty to
organise their judicial systems in such a way that their courts
can meet each of its requirements (see, among many other
authorities, the Tusa v. Italy judgment of 27 February 1992,
Series A no. 231-D, p. 41, para. 17).
21. Accordingly, having regard to what was at stake in the
dispute for the applicant and to the fact that the case was heard
at only one level of jurisdiction, the Court cannot consider
"reasonable" the time which elapsed in the proceedings in issue.
In conclusion, there has been a violation of Article 6
para. 1 (art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
22. Under 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
23. Mrs De Micheli sought 950,000,000 Italian lire as
compensation for damage. This sum represented the amount that
her husband, Mr Centola, paid to the Z. company to avoid his
undertaking's bankruptcy and the auctioning-off of all his
property. She maintained that there was a causal connection
between the damage deriving from this payment and the alleged
violation.
In the alternative, she claimed 428,000,000 lire.
24. The Government stressed that the sum in question had been
paid not by the applicant herself but by her husband, in
accordance with an agreement concluded on 21 December 1987
between him and the above-mentioned company. Any pecuniary
damage stemmed from that agreement and not from the allegedly
excessive duration of the proceedings.
Furthermore the applicant could have requested
compensation under Article 96 of the Italian Code of Civil
Procedure on the basis of the decision quashing the payment
order.
The Government further contended that a finding of a
violation would constitute sufficient just satisfaction for any
non-pecuniary damage which the applicant might have sustained.
25. The Delegate of the Commission accepted the Government's
argument, but nevertheless took the view that the applicant had
sustained pecuniary and non-pecuniary damage because her
financial circumstances had suffered directly on account of those
of her husband.
26. The Court considers that the evidence does not disclose
any pecuniary damage deriving directly from the failure to
conduct the proceedings within a "reasonable time". The
agreement of 21 December 1987 entailed acknowledgement of the
debt which the Z. company was trying to recover. It was signed
by Mr Centola in his own name and stipulated that it was to
remain valid even in the event of the annulment of the payment
order of 29 July 1986, the execution of which the investigating
judge had moreover refused to stay on 27 October 1986 (see
paragraph 11 above, nos. 17 and 19).
On the other hand, the proceedings in issue caused the
applicant non-pecuniary damage for which it is appropriate to
award her 25,000,000 lire.
B. Costs and expenses
27. The applicant also sought 4,271,300 lire in respect of
costs and expenses referable to the proceedings before the
Convention organs.
The Government considered that this claim was founded on
provisions, concerning lawyer's fees, which were part of the
Italian domestic legal system and which did not therefore apply
in the present case. However, they left the matter to be
determined by the Court.
28. The Court shares the view of the Delegate of the
Commission that the costs in question were genuinely and
necessarily incurred and were reasonable as to quantum, and
accordingly orders their reimbursement to the applicant in full.
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, 25,000,000 (twenty-five
million) Italian lire for non-pecuniary damage and
4,271,300 (four million two hundred and seventy-one
thousand three hundred) 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
26 February 1993.
Signed: Rudolf BERNHARDT
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy