In the case of Idrocalce S.r.l. 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 8/1991/260/331. 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. 12088/86) against the Italian Republic lodged with
the Commission under Article 25 (art. 25) by an Italian company,
Idrocalce S.r.l., on 1 April 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 company
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, 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.
_______________
* Cases nos. 3/1991/255/326 to 7/1991/259/330; 9/1991/261/332 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
_______________
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 memorials of the
applicant and the Government on 16 July 1991. 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 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 29 October. 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. Larato, avvocato, Counsel.
The Court heard addresses by Mr Raimondi and Mrs Passannanti for the
Government, by Mr Frowein for the Commission and by Mr Larato for
the applicant company, 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 limited company in the process of
liquidation. The facts established by the Commission pursuant to
Article 31 para. 1 (art. 31-1) of the Convention are as follows
(paragraphs 16-26 of its report):
"16. By a writ served on 26 September and 2 October 1980, the
applicant company took proceedings before the Taranto District Court
against Mr N., its debtor, and against the E. company, for a
declaration that the latter owed N. the sum of 30,000,000 Italian
lire. The purpose of its action was to have deducted from that sum
the amount which it claimed to be owed by Mr N.
17. At the same time the applicant company issued a writ against
the Istituto Nazionale della Previdenza Sociale (INPS) which was
concerned in the case as Mr N.'s creditor.
18. The investigation commenced at the hearing of
6 November 1980. Mr N. and the E. company did not appear and were
found in default. Three further hearings took place on 19 February,
23 April and 9 July 1981, on which date the applicant and the INPS
made their final submissions and the case was referred to the
appropriate chamber of the court.
19. After hearing the applicant and the INPS at the sitting on
26 March 1982, the court chamber deemed it necessary to examine
witnesses (whom the applicant had reserved the right to identify at
a later stage) in order to establish whether Mr N. was owed money by
the E. company. By order of 30 April 1982 the case was remitted to
the investigating judge.
20. The sole witness finally identified was summoned to the
hearing of 24 June 1982 and then to that of 18 November 1982 but did
not appear. On 17 February 1983 the investigating judge ordered the
interruption of the proceedings on account of Mr N.'s bankruptcy.
21. On 21 February 1983 the applicant reopened the proceedings
which resumed at the hearing of 28 April 1983. On 14 July
and 1 December 1983 the proceedings in the case were adjourned at
the request of the INPS as the applicant and the other parties had
not appeared in court. At the hearing on 1 March 1984 the applicant
and the INPS made their final submissions and the case was referred
to the appropriate chamber of the court.
22. Having heard submissions by the applicant and the INPS at
the hearing of 2 November 1984, the chamber found that the interview
which it had ordered on 30 April 1982 had not been carried out and
by order of 16 November 1984 remitted the case for a second time to
the investigating judge.
23. The witness to be examined was summoned to the hearing
of 14 Februarry 1985 but did not appear. The investigating judge
then instructed the police to ensure that the witness attended the
hearing of 16 May 1985. However, the instruction was not carried
out and the hearing did not take place until 3 October 1985. By
then the case was ready for decision; the applicant and the INPS
accordingly made their final submissions at the hearing on
9 January 1986.
24. The hearing before the appropriate chamber of the court took
place on 30 January 1987 and by decision of 13 February 1987 the
applicant's claim was dismissed on account of Mr N.'s bankruptcy.
The text of the decision was lodged with the court registry
on 11 May 1987.
25. Notice of the applicant's appeal against this decision was
filed with the Lecce Court of Appeal on 31 July and 5 August 1987.
26. Particulars of the conduct of the investigation before the
appellate court have not been given, but it appears that judgment in
the case was reserved at the hearing of 13 April 1989. On
27 April 1989 the Court of Appeal upheld the appealed decision by a
ruling filed with the court registry on 10 June 1989. ... ."
10. According to the information supplied to the European Court
by the applicant, no appeal has been lodged in the Court of
Cassation.
PROCEEDINGS BEFORE THE COMMISSION
11. Idrocalce S.r.l. lodged its application with the Commission
on 1 April 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. 12088/86) admissible. In its report of 5 December 1990
(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 229-F
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 company 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
26 September 1980 when the proceedings were instituted against Mr N.
in the Taranto District Court; it ended on 10 June 1990 when the
judgment of the Court of Appeal became final (see the Pugliese (II)
v. Italy judgment of 24 May 1991, Series A no. 206-A, p. 8,
para. 16).
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 conduct of the applicant company
- which in particular had not requested that its case be dealt with
more rapidly - and Mr N.'s bankruptcy, which led to the interruption
of the proceedings.
18. The Court notes in the first place that this interruption
was barely more than two months (17 February - 28 April 1983). The
applicant, for its part, undoubtedly contributed to the slowness of
which it complained by reserving the right to identify at a later
stage the witnesses cited, by not appearing at the hearing of
1 December 1983 and by waiting from 11 May to 31 July 1987 before
filing an appeal.
However, there were three long periods of stagnation at first
instance, a total of twenty-nine months, between the hearings for
the final submissions to the investigating judge and the trial
hearings before the Taranto District Court (9 July 1981 -
26 March 1982, 1 March - 2 November 1984 and 9 January 1986 -
30 January 1987). In addition, the toing and froing between the
investigating judge and the competent chamber clearly did not assist
the progress of the case.
Furthermore, the sole witness identified by the applicant was heard
only after sixteen months of hesitation (24 June 1982
- 17 February 1983 and 14 February 1985 - 3 October 1985). Yet this
measure was a step in judicial proceedings supervised by a judge who
was responsible for the preparation and the speedy conduct of the
trial (see the Capuano v. Italy judgment of 25 June 1987, Series A
no. 119, p. 13, para. 30). It is true that he asked the carabinieri
to ensure that the person concerned appeared on 16 May 1985, but for
reasons of which the Court is unaware they failed to carry out this
order.
The participants in the Strasbourg proceedings have supplied the
Court with very few details on the conduct of the appeal
proceedings. The Court confines itself to noting that it took one
and a half months for the judgment of the Lecce Court of Appeal to
be filed with the registry (27 April - 10 June 1989); the judgment
of the Taranto District Court had already taken nearly three months
(13 February - 11 May 1987).
19. Accordingly, 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)
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 claimed in the first place, for damage, a
minimum of 25,000,000 Italian lire.
The Government considered that the company had not established the
existence of a causal connection between the alleged violation and
any pecuniary damage. 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 view.
B. Costs and expenses
23. Idrocalce S.r.l. also sought 8,040,000 lire for costs and
expenses incurred before the Convention organs.
Having regard to the evidence at its disposal and to its case-law in
this field, the Court awards the sum claimed in its entirety.
C. Interest
24. 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.
25. 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.
D. Implementation of legislative measures
26. The applicant requested finally that the present judgment
should include a declaration ordering the Italian State to adopt
legislation with a view to implementing all the necessary measures
to ensure an effective protection of the human rights violated in
this case - or at least a firm and explicit warning to this effect.
The Delegate of the Commission did not make any observations on this
point.
The Court points out, like the Government, that under the Convention
it does not have jurisdiction to make such an order to a Contracting
State (see in particular, mutatis mutandis, the Vocaturo v. Italy
judgment of 24 May 1991, Series A no. 206-C, p. 33, para. 21).
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 this judgment constitutes in itself, as regards
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,
within three months, 8,040,000 (eight million and forty thousand)
Italian lire for costs and expenses;
4. Dismisses the remainder of the applicant's claim.
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