In the case of Lestini 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 Thór Vilhjálmsson,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr C. Russo,
Mr A. Spielmann,
Mr N. Valticos,
Mr S.K. Martens,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 28 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 54/1991/306/377. 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 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. 12859/87) against the Italian Republic lodged with
the Commission under Article 25 (art. 25) by an Italian national,
Mrs Fernanda Lestini, on 10 April 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 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 Gilberti,
Nonnis, Trotto, Nibbio, Borgese, Biondi, Macaluso, Monaco,
Cattivera, Seri, Manunza, Gori, Casadio, Testa, Covitti, Zonetti,
Simonetti and Dal Sasso* should be heard by the same Chamber.
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* Cases nos. 19/1991/271/342; 23/1991/275/346; 26/1991/278/349;
28/1991/280/351 to 32/1991/284/355; 34/1991/286/357;
35/1991/287/358; 37/1991/289/360; 45/1991/297/368; 52/1991/304/375;
53/1991/305/376; 55/1991/307/378 to 57/1991/309/380; 60/1991/312/383
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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 J. Pinheiro Farinha, Mr L.-E. Pettiti,
Mr B. Walsh, Mr N. Valticos and Mr S.K. Martens (Article 43 in fine
of the Convention and Rule 21 para. 4) (art. 43).
Subsequently, Mr A. Spielmann, substitute judge, replaced
Mr Pinheiro Farinha, who had resigned and whose successor at the
Court had taken up his duties before the hearing (Rules 2 para. 3
and 22 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 Government's memorial on
17 July 1991 and the applicant's memorial on 25 July. By a letter
received on 22 September, the Secretary to the Commission informed
the Registrar that the Delegate would submit oral observations.
6. On 29 August the Commission had 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 28 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. Angelozzi, avvocato, Counsel,
Mr M. de Stefano, avvocato, Adviser.
The Court heard addresses by Mr Raimondi and Mr Manzo for the
Government, by Mr Frowein for the Commission and by Mr Angelozzi and
Mr de Stefano for the applicant, as well as their answers to its
questions.
8. On 14 October the Government had lodged their observations
on the applicant's claims for just satisfaction (Article 50 of the
Convention) (art. 50); on 5 November the Commission filed its
observations on those claims.
AS TO THE FACTS
9. Mrs Fernanda Lestini is an Italian national and resides at
Albano Laziale (Rome). She is unemployed. The facts established by
the Commission pursuant to Article 31 para. 1 (art. 31-1) of the
Convention are as follows (paragraphs 17-20 of its report):
"17. On 11 March 1985 the applicant took proceedings against the
Istituto Nazionale della Previdenza Sociale (INPS) before the Rome
magistrate's court (pretore) in order to establish her disability
pension right.
18. The investigation opened at the hearing of 19 June 1985,
when the magistrate's court ordered a medical opinion. The expert
appointed was sworn in at the hearing of 3 July 1985 and lodged the
opinion on 5 November 1985. The hearing of 27 November 1985 ended
with the dismissal of the applicant's claim by the magistrate's
court. The text of the decision was lodged with the registry
on 13 December 1985.
19. On 23 September 1986 the applicant appealed against that
decision and on 29 September 1986 the presiding judge of the Rome
District Court fixed the hearing before the competent court chamber
for 25 October 1988. On that date the applicant requested an
adjournment and the hearing was postponed to 2 May 1989.
20. A hearing was held on 17 April 1990, when the court
deliberated. At the close of the hearing, the District Court
delivered judgment. The text of the judgment was lodged with the
registry on 13 December 1990.
21. ... ."
10. According to the information supplied to the European Court
by the applicant, the District Court's judgment became final on
13 December 1991, there having been no appeal to the Court of
Cassation.
PROCEEDINGS BEFORE THE COMMISSION
11. Mrs Lestini lodged her application with the Commission on
10 April 1987. She complained of the length of the civil
proceedings brought by her and relied on Article 6 para. 1
(art. 6-1) of the Convention.
12. On 11 May 1990 the Commission declared the application
(no. 12859/87) 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*.
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* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 228-E
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
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 claimed that her 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
11 March 1985 when the proceedings were instituted against the INPS
in the magistrate's court. It ended on 13 December 1991 when the
Rome District Court's judgment 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 referred to the complexity of the facts and
to Mrs Lestini's conduct. She had caused several adjournments. In
addition, they invoked the excessive workload of the competent
courts and the latter's duty in principle to deal with cases in the
order in which they were registered.
According to the applicant, the case was a simple one and her
requests to have the hearings adjourned were prompted by the need to
prove that she had duly paid her contributions.
18. The Court stresses that special diligence is necessary in
employment disputes, which include pensions disputes (see, inter
alia, mutatis mutandis, the Vocaturo v. Italy judgment of
24 May 1991, Series A no. 206-C, p. 32, para. 17). Italy moreover
acknowledged this by amending, in 1973, the special procedure laid
down in this field and by introducing, in 1990, emergency measures
intended to speed up the conduct of such proceedings.
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 the same judgment,
ibid.).
This case did not give rise to any complex question of fact or law.
Moreover the proceedings were conducted at a normal pace in the
magistrate's court and the State cannot be held responsible for the
period of more than ten months which elapsed between the filing of
the decision of 27 November 1985 and the lodging of the applicant's
appeal on 23 September 1986; nor is it answerable for the year which
went by before the judgment of 17 April 1990 became final.
On the other hand, the appeal proceedings remained dormant for more
than twenty-five months. On 29 September 1986 the President of the
Rome District Court set down the first hearing before the competent
chamber for 25 October 1988 and it does not appear from the evidence
that any investigative mesures were taken prior to that hearing. No
doubt Mrs Lestini subsequently requested one or several
adjournments; the only one mentioned in the Commission's report led
to a delay of over six months (25 October 1988 - 2 May 1989).
Nevertheless it is hard to understand why it should have taken
nearly eight months (17 April - 13 December 1990) for the text of
the District Court's judgment to be filed with the registry.
19. Accordingly and in view of what was at stake in the
proceedings for the applicant, 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 8,000,000 Italian
lire for damage.
In the Government's contention, she sustained no pecuniary damage.
As to non-pecuniary damage, a finding of a violation would
constitute sufficient just satisfaction.
22. There is no evidence that the violation found caused
Mrs Lestini pecuniary damage. On the other hand, she must have
suffered a degree of non-pecuniary damage for which the Court,
making an assessment on an equitable basis, awards her
3,000,000 lire.
B. Costs and expenses
23. The applicant also sought 3,000,000 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 her 2,000,000 lire under this head.
C. Interest
24. Mrs Lestini requested finally that interest be paid on the
sums awarded, at the statutory rate in force in her country and in
respect of the period running from the delivery of the present
judgment to the payment of such sums by the national authorities.
The Commission invited the Court to fix for the Government
- who did not give their opinion - a compulsory time-limit for
executing the 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.
FOR THESE REASONS, THE COURT
1. Holds by six votes to three that there has been a violation
of Article 6 para. 1 (art. 6-1);
2. Holds unanimously that the respondent State is to pay to the
applicant, within three months, 3,000,000 (three million) Italian
lire for non-pecuniary damage and 2,000,000 (two million) lire for
costs and expenses;
3. Dismisses unanimously 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 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention
and Rule 53 para. 2 of the Rules of Court, the dissenting opinion of
Mr Thór Vilhjálmsson, Mr Russo and Mr Valticos is annexed to the
present judgment.
Initialled: R. R.
Initialled; M.-A. E.
DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON, RUSSO AND VALTICOS
(Translation)
We are unable to agree with the majority in this case because we do
not consider that the sum of the delays for which the State can be
held responsible amounts to an unreasonable time in this instance.
Full & Egal Universal Law Academy