In the case of Macaluso 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 and 27 November 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
* The case is numbered 31/1991/283/354. 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.
*** The amendments to the Rules of Court which came into force on
1 April 1989 are applicable to this case.
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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 of
the Convention (art. 32-1, art. 47). It originated in an
application (no. 12922/87) against the Italian Republic lodged with
the Commission under Article 25 (art. 25) by an Italian national,
Mrs Maria Macaluso, on 14 May 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. On 23 April 1991 the President of the Court decided that,
pursuant to Rule 21 para. 6 of the Rules of Court and in the
interests of the proper administration of justice, this case and the
cases of Gilberti, Nonnis, Trotto, Nibbio, Borgese, Biondi, Monaco,
Cattivera, Seri, Manunza, Gori, Casadio, Testa, Lestini, Covitti,
Zonetti, Simonetti and Dal Sasso1 should be heard by the same
Chamber.
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1 Gilberti (19/1991/271/342); Nonnis (23/1991/275/346);
Trotto (26/1991/278/349); Nibbio (28/1991/280/351);
Borgese (29/1991/281/352); Biondi (30/1991/282/353);
Monaco (32/1991/284/355); Cattivera (34/1991/286/357);
Seri (35/1991/287/358); Manunza (37/1991/289/360);
Gori (45/1991/297/368); Casadio (52/1991/304/375);
Testa (53/1991/305/376); Lestini (54/1991/306/377);
Covitti (55/1991/307/378); Zonetti (56/1991/308/379);
Simonetti (57/1991/309/380); Dal Sasso (60/1991/312/383)
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3. 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 deliberations held on
28 October (Rules 2 para. 3 and 22 para. 1).
4. 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") and the Delegate
of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). In accordance with the order made in
consequence, the Registrar received the Government's memorial on
16 July 1991. By a letter received on 22 September, the Secretary
to the Commission informed the Registrar that the Delegate would
submit his observations at the hearing.
5. On 11 March the Registrar had sent to the applicant the
enquiry provided for in Rule 33 para. 3 (d). On 7 October
Mrs Macaluso's lawyer informed him of her death and the lack of
interest on the part of her heirs in continuing the proceedings.
Accordingly, the President instructed the Registrar to obtain the
opinion of the Government and the Delegate of the Commission
regarding the possibility of striking the case out of the list
(Rule 49 para. 2). Their observations reached the registry
on 16 and 17 October.
6. On 24 October the Chamber decided to dispense with the
hearing fixed for 28 October, having found that the conditions for
such derogation from the usual procedure were satisfied (Rules 26
and 38).
AS TO THE FACTS
7. Mrs Maria Macaluso was an Italian national and resided in
Rome. She was unemployed. The facts established by the Commission
pursuant to Article 31 para. 1 (art. 31-1) of the Convention are as
follows (paragraphs 16-19 of its report):
"16. On 13 July 1983 the applicant took action against the
'Istituto Nazionale della Previdenza Sociale' (INPS) before the Rome
magistrate's court ('pretore') in order to establish her right to a
disability pension.
17. The investigation opened at the hearing of 24 January 1984,
when the magistrate's court ordered a medical opinion. The expert
appointed was sworn in at the hearing of 15 May 1984 and
on 1 October 1984 the opinion was lodged with the registry. The
hearing of 7 May 1985 before the magistrate's court ended with the
dismissal of the applicant's claim. The text of the decision was
lodged with the registry on 7 June 1985.
18. On 3 June 1986 the applicant appealed against the above
decision and on 5 June 1986 the presiding judge of the Rome District
Court fixed the hearing before its competent chamber for 4 May 1988.
19. At the applicant's request, the hearing was postponed
to 4 November 1988, when the District Court dismissed her claim.
The text of the judgment was registered [on 11] January 1989.
20. ..."
8. According to the information supplied by the Government to
the European Court, that decision has not been the subject of an
appeal to the Court of Cassation.
PROCEEDINGS BEFORE THE COMMISSION
9. In her application of 14 May 1987 to the Commission
(no. 12922/87), Mrs Macaluso complained of the length of the civil
proceedings brought by her; she relied on Article 6 para. 1
(art. 6-1) of the Convention.
10. On 11 May 1990 the Commission declared the application
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 223-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
11. By a letter of 7 October 1991 Mr Angelozzi, counsel for
Mrs Macaluso before the Commission, informed the Registrar that he
had learned of his client's death and that her heirs had not
expressed any wish to continue the proceedings before the Court.
The Government were consulted on whether the case should be struck
out of the list pursuant to Rule 49 para. 2 of the Rules of Court
and answered in the affirmative.
The Delegate of the Commission considered that the information
received from Mr Angelozzi gave insufficient details concerning the
real intentions of the applicant's heirs: it was not possible to
determine therefrom whether there was indeed a "fact of a kind to
provide a solution of the matter" (Rule 49 para. 2). Furthermore,
the Delegate questioned whether it was possible to regard
Mrs Macaluso's heirs, despite their "apparent silence", as having
lost "any legal interest in having the violation of the Convention
... established". In any event "the absence of a clear unequivocal
manifestation of intention" precluded, in his view, saying that
there had been a withdrawal, "even an implied one". Moreover the
present case was one of a number of cases which "should be placed in
a context that goes well beyond the interest of each applicant".
12. According to Rule 49 para. 2 of the Rules of Court:
"When the Chamber is informed of a friendly settlement, arrangement
or other fact of a kind to provide a solution of the matter, it may,
after consulting, if necessary, the Parties, the Delegates of the
Commission and the applicant, strike the case out of the list."
The applicant's death, together with the silence of her heirs, who,
notwithstanding several reminders from the registry over a period of
almost seven months, and therefore well in excess of the usual
period of two weeks prescribed in Rule 33 para. 3 (d), showed no
interest in the proceedings before the Court, constitutes a "fact of
a kind to provide a solution of the matter". It may indeed be
questioned whether there can still be said to be any dispute.
In addition, the Court discerns no reason of ordre public (public
policy) for continuing the proceedings (Rule 49 para. 4). In this
connection it points out that in a number of previous cases it had
occasion to review the "reasonableness" of the length of civil
proceedings in various Contracting States, including Italy (see,
with regard to that country, the Pretto and Others judgment of
8 December 1983, the Capuano judgment of 25 June 1987, the Brigandì,
Zanghì and Santilli judgments of 19 February 1991 and the
Pugliese (II), Caleffi and Vocaturo judgments of 24 May 1991,
Series A nos. 71, 119, 194-B-C-D and 206-A-B-C). In so doing it
specified the nature and the extent of the obligations arising in
this context from Article 6 para. 1 (art. 6-1) of the Convention.
Furthermore, a large number of cases which raise similar questions
and in which it is shortly to give judgment are still pending before
it. Finally, according to information provided by the Delegate of
the Commission, 410 applications concerning compliance with the
"reasonable time" requirement, in Italy, are pending before the
Commission.
Accordingly, the case should be struck out of the list.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the case out of the list.
Done in English and in French, and notified in writing under
Rule 55 para. 2, second sub-paragraph, of the Rules of Court
on 3 December 1991.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy