In the case of Maciariello 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 13/1991/265/336. 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 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. 12284/86) against the Italian Republic lodged with
the Commission under Article 25 (art. 25) by an Italian national,
Mr Vittorio Maciariello, on 23 May 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 stated that
he did not wish to take part in the proceedings.
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, Idrocalce S.r.l., Owners'
Services Ltd, Cardarelli, Golino, Taiuti, 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. 3/1991/255/326 to 12/1991/264/335; 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") 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 August, the Secretary to the Commission
informed the Registrar that the Delegate did not consider it
necessary to reply thereto.
6. On 28 June 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 26 November the Government communicated to the Registrar
information on the course of the domestic proceedings.
AS TO THE FACTS
9. Mr Vittorio Maciariello is an Italian national and resides
at Ostia Lido (Rome). The facts established by the Commission
pursuant to Article 31 para. 1 (art. 31-1) of the Convention are as
follows (paragraphs 16-20 of its report):
"16. On 31 May 1983 the applicant instituted divorce proceedings
before the District Court of Santa Maria Capua Vetere.
17. The applicant and his wife appeared before the presiding
judge of the court on 9 July 1983. Thereafter the case was
adjourned by court order on a number of occasions, namely at the
hearings of 29 November 1983, 10 April 1984, 6 November 1984,
26 March 1985 and 17 September 1985 on the grounds of the
investigating judge's transfer and the impossibility of replacing
him at short notice.
18. The investigation actually began at the hearing of
28 January 1986. On that date the investigating judge called for
the examination of certain witnesses. The following hearing was
postponed by the court of its own motion from 8 May 1986 to
23 October 1986.
19. On 13 November 1986 the parties filed their final
submissions and the case was referred to the competent division of
the District Court.
20. Judgment was reserved at the hearing of 10 February 1987 and
delivered on 19 February 1987, the text thereof being lodged with
the registry on 14 March 1987.
21. ... ."
10. According to the information supplied by the Government to
the European court, neither of the parties appealed.
PROCEEDINGS BEFORE THE COMMISSION
11. Mr Maciariello lodged his application with the Commission on
23 May 1986. 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. 12284/86) 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*.
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* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 230-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
31 May 1983 when the divorce proceedings were instituted. It ended
at the latest on 14 March 1988 when the judgment of the Santa Maria
Capua Vetere District Court became final (see the Pugliese (II)
v. Italy judgment of 24 May 1991, Series A no. 206-A, p. 8, para. 16).
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 excessive workload of the
District Court. In addition, the applicant had not requested that
his case be dealt with more rapidly.
17. The Court observes that the proceedings were conducted at a
normal pace before the relevant chamber of the District Court and
that the State cannot be held responsible for the year which went by
until the judgment became final. The same cannot be said of the
earlier phase. As the Commission pointed out, more than two and a
half years (9 July 1983 - 28 January 1986) elapsed before the actual
beginning of the investigation, as the transfer of a judge had led
to a series of adjournments ordered by the court of its own motion.
The Government pleaded the backlog of cases and the difficulty of
replacing speedily the judge in question, 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).
18. Accordingly, the Court cannot regard as "reasonable" the
lapse of time in the present case, in particular as special
diligence is required in cases relating to civil status and capacity
(see the Bock v. Germany judgment of 29 March 1989, Series A
no. 150, p. 23, para. 49).
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 Maciariello claimed 50,000,000 Italian lire for pecuniary
and non-pecuniary damage; he did not seek the reimbursement of costs
and expenses.
The Commission took the view that, in addition to a reparation for
non-pecuniary damage, Mr Maciariello was entitled to compensation
for any pecuniary damage sustained by him if he succeeded in
establishing its existence and that of a causal connection with the
violation found.
21. The evidence does not show that these conditions have been
satisfied. On the other hand, the applicant undoubtedly suffered
non-pecuniary damage, for which the Court, making an assessment on
an equitable basis, awards him 2,000,000 lire.
B. Interest
22. 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.
23. 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 Mr Maciariello,
within three months, 2,000,000 (two million) Italian lire for
non-pecuniary damage;
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