In the Motta case*,
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 L.-E. Pettiti,
Sir Vincent Evans,
Mr C. Russo,
Mr J. De Meyer,
Mr N. Valticos,
Mr A.N. Loizou,
Mr J.M. Morenilla,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 2 October 1990 and
24 January 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 4/1990/195/255. 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 Protocol No. 8, 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.
_______________
PROCEDURE
1. The case was referred to the Court on 16 February 1990 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. 11557/85) against the Italian Republic lodged with
the Commission under Article 25 (art. 25) by an Italian national,
Mr Luciano Motta, on 22 April 1985.
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
wished to take part in the proceedings. He was given leave to
present his own case during the written procedure and obtained
approval for the lawyer appointed by him for the hearing
(Rule 30). On 30 March 1990 the President of the Court authorised
him to use the Italian language (Rule 27 para. 3) and then, on 24
September 1990, granted him legal aid (Rule 4 of the Addendum to
the Rules of Court).
3. On 21 February 1990 the President decided that, pursuant to
Rule 21 para. 6 and in the interests of the proper administration
of justice, this case and the cases of Manzoni, Pugliese (I),
Alimena, Frau, Ficara, Viezzer, Angelucci, Maj, Girolami, Ferraro,
Triggiani, Mori, Colacioppo and Adiletta and Others* should be
heard by the same Chamber.
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* Cases of Manzoni (7/1990/198/258), Pugliese (I) (8/1990/199/259),
Alimena (9/1990/200/260), Frau (10/1990/201/261), Ficara
(11/1990/202/262), Viezzer (12/1990/203/263), Angelucci
(13/1990/204/264), Maj (14/1990/205/265), Girolami
(15/1990/206/266), Ferraro (16/1990/207/267), Triggiani
(17/1990/208/268), Mori (18/1990/209/269), Colacioppo
(19/1990/210/270), Adiletta and Others (20/1990/211/271-273)
_______________
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 26 March 1990, in
the presence of the Registrar, the President drew by lot the names
of the other seven members, namely Mr F. Matscher, Mr L.-E.
Pettiti, Sir Vincent Evans, Mr J. De Meyer, Mr N. Valticos, Mr A.N.
Loizou and Mr J.M. Morenilla (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 Registrar, consulted the Agent
of the Italian Government ("the Government"), the Delegate of the
Commission and the applicant's lawyer on the need for a written
procedure (Rule 37 para. 1). In accordance with the order made in
consequence, the Registrar received the applicant's memorial on 22
June 1990 and the Government's memorial on 31 July. By a letter
received on 31 August, the Secretary to the Commission informed the
Registrar that the Delegate would submit his observations at the
hearing.
6. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 29 August
1990 that the oral proceedings should open on 1 October 1990
(Rule 38).
7. On 31 August 1990 the Commission produced the file on the
proceedings before it, as requested by the Registrar on the
President's instructions.
8. The hearing took place in public in the Human Rights Building,
Strasbourg, on the appointed day. 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;
(b) for the Commission
Mr S. Trechsel, Delegate;
(c) for the applicant
Mr S. Motta, praticante procuratore legale, Counsel.
The Court heard addresses by the above-mentioned
representatives, as well as their answers to its questions.
On 23, 25 and 26 October the registry received from the
participants in the proceedings additional information in reply to
the Court's questions and observations on the applicant's claims
for just satisfaction.
AS TO THE FACTS
9. Mr Luciano Motta, who is an Italian national, practises as a
doctor at Carlentini (Syracuse). The facts established by the
Commission pursuant to Article 31 para. 1 (art. 31-1) of the
Convention are as follows (paragraphs 17-25 of its report, see
paragraph 12 below):
"17. The applicant complains of proceedings resulting from
his dealings with the INAM (the national health insurance
institute). Under the Italian health insurance system, the
patient receives direct assistance, i.e. he is not required to
pay the doctor, pharmacist or other provider of medical
services, who is paid by the INAM on submission of a bill.
18. The INAM refused to pay a bill submitted by the
applicant on the ground that he had not performed medical
services he was claiming for.
On 15 June 1979 he therefore applied to Lentini
magistrate's court ('pretore'), sitting as a labour tribunal,
for an order that the INAM pay him for the medical services
provided between September 1978 and January 1979.
19. On 10 July 1979, the INAM opposed the order to pay on
the ground that it had found irregularities concerning the
services provided. In view of the seriousness of the INAM's
allegations, the Court forwarded the file to the Syracuse
public prosecutor's office for a criminal investigation if
appropriate. On 11 September 1979, the public prosecutor's
office sent the file to the investigating judge.
On 8 October 1979, the magistrate's court decided to
suspend the civil proceedings pending the outcome of the
criminal proceedings, in accordance with Article 295 of the
Code of Civil Procedure.
20. On 20 October 1979, the investigating judge of
Syracuse Criminal Court informed the applicant that he was
being investigated on charges of forgery and fraud in
connection with matters which had occurred on 16 July 1979
(the date of the bill for services from September 1978 to
January 1979).
21. On 30 October 1979, the investigating judge questioned
the applicant. On 30 November 1979 he questioned the patients
said to have received the medical services. On 18 January
1980, the INAM submitted a further report to the public
prosecutor.
On 20 March 1980, the INAM entered a claim for damages in
the criminal proceedings.
22. On 6 June 1980, the investigating judge decided to
commit the applicant for trial before Syracuse Criminal Court.
According to the applicant, the trial should have taken place
in the autumn of 1981. In September 1981, he requested in
writing that a date be set for the hearing. On 10 November
1981, he was summoned to appear at a hearing scheduled for 26
January 1982, which had to be postponed to 4 June 1982 because
he had dismissed his defence counsel and the new defence
counsel was not available. As the public prosecutor did not
object, the court agreed to the postponement. On 4 June 1982
the accused and 20 witnesses were examined. As the defence
had asked for various documents to be produced, it was decided
to resume examination of the case on 26 October 1982, on which
date the proceedings were adjourned because the composition of
the division handling the case had changed. The hearing was
set down for 10 December 1982 but postponed at the request of
the State Counsel to 18 March 1983, then adjourned sine die:
the division which had handled the initial stage of the trial
could not be reconvened because one of its members, an
honorary deputy 'pretore', had left the division.
23. On 21 March 1983, the applicant applied again for a
date to be set for a hearing. On 12 April 1983, he was
summoned to appear at a hearing on 13 June 1983. On that date
the court delivered a decision, filed with its registry on 20
June 1983, that the proceedings should be discontinued because
of an amnesty.
24. The applicant appealed. The file was transferred to
Catania Court of Appeal on 8 November 1983.
The applicant twice asked for a date to be set for the
hearing. The President of the Court of Appeal directed that
the hearing be held on 9 February 1984. On that date, the
applicant's lawyer was absent, and as the President of the
Court had not authorised the defendant to conduct his own
defence, the hearing was postponed to 6 April 1984, the date
on which judgment was delivered. The judgment, filed with the
court registry on 18 May 1984, upheld the decision at first
instance.
25. The applicant appealed to the Court of Cassation,
which dismissed the appeal in a judgment of 27 April 1987
filed with the registry on 4 December 1987.
According to an attestation supplied by the applicant,
the civil proceedings have not been resumed (Article 297 of
the Code of Civil Procedure)."
10. At the hearing on 1 October 1990 (see paragraph 8 above) the
applicant confirmed that this was indeed the situation.
PROCEEDINGS BEFORE THE COMMISSION
11. In his application of 22 April 1985 to the Commission
(no. 11557/85) Mr Motta complained of the length of three sets of
proceedings - two civil and one criminal -, of an infringement of
the rights of the defence, of the arbitrary nature of the criminal
proceedings instituted against him and of a violation of his right
to the peaceful enjoyment of his possessions. He relied on Article
6 of the Convention and Article 1 of Protocol No. 1 (art. 6, P1-1).
12. On 14 December 1988 the Commission declared the application
admissible solely as regards the length of two sets of proceedings
and inadmissible for the rest. In its report of 6 November 1989
(Article 31) (art. 31), it expressed the opinion that there had
been a double violation of Article 6 para. 1 (art. 6-1)
(unanimously for the criminal proceedings and fourteen votes to
three for the civil proceedings). 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 195-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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FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
13. At the hearing on 1 October 1990 the Government confirmed the
submission put forward in their memorial, in which they requested
the Court to hold "that there has 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 the duration of each of the two
sets of proceedings in question had exceeded a "reasonable time"
within the meaning of Article 6 para. 1 (art. 6-1) of the
Convention, according to which:
"In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to
a ... hearing within a reasonable time by [a] ...
tribunal ... "
The Government disputed this view, whereas the Commission
subscribed thereto.
15. For the impugned criminal proceedings, the period to be taken
into consideration began on 20 October 1979, when the investigating
judge advised Mr Motta of the opening of an investigation
concerning him. It ended on 27 April 1987, when the Court of
Cassation dismissed the applicant's appeal (see, inter alia, the
Baggetta judgment of 25 June 1987, Series A no. 119, p. 32,
para. 20).
The civil proceedings instituted by the applicant with a
view to obtaining an injunction began on 15 June 1979. They were
stayed pending the outcome of the criminal proceedings from
8 October 1979 to 4 December 1987 (the date on which the Court of
Cassation's judgment in the criminal proceedings was filed with the
registry) and they have not since been resumed, in any event as far
as the Court is aware.
16. The participants in the proceedings presented argument as to
the way in which the various criteria employed by the Court in this
context - such as the degree of complexity of the case, the conduct
of the applicant and that of the competent authorities - should
apply in the present case.
17. Article 6 para. 1 (art. 6-1) of the Convention guarantees to
everyone the right to a final decision within a reasonable time in
the determination of any criminal charge against him or of his
civil rights and obligations.
The Court points out that, under its case-law on the subject,
the reasonableness of the length of proceedings is to be assessed
in the light of the particular circumstances of the case. In this
instance the circumstances call for an overall assessment (see,
mutatis mutandis, the Obermeier judgment of 28 June 1990, Series A
no. 179, p. 23, para. 72).
As regards the criminal proceedings, the Court notes that the
case was not a complex one. Moreover the applicant caused hardly
any delay in its examination and indeed on four occasions applied
for dates to be set for the hearings (see paragraph 9 above, under
nos. 22, 23 and 24). The proceedings at first instance took three
years and eight months from 20 October 1979 to 20 June 1983.
Subsequently, three years elapsed from the delivery of the Court of
Appeal's judgment on 6 April 1984 to the delivery of that of the
Court of Cassation on 27 April 1987 and a further seven months
before the latter judgment was filed with the registry, thereby
enabling the civil proceedings to be resumed. In these
circumstances the Court cannot regard as "reasonable" in the
instant case a lapse of time of more than seven and a half years.
The civil proceedings were prevented from pursuing their
course by the slowness of the criminal proceedings.
There has therefore been, in both cases, a violation of
Article 6 para. 1 (art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
18. 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
19. Mr Motta sought 1,464,000,000 Italian lire for pecuniary and
non-pecuniary damage. He cited, inter alia, his alleged loss of
earnings and the protracted uncertainty in which he claimed to have
lived until the conclusion of the proceedings in question.
20. The Commission considered that the length of the criminal
proceedings had caused the applicant pecuniary damage at least in
the amount of the disputed fees, the reimbursement of which he had
ultimately forgone; the appropriate costs and interest should in
its view be added to this sum. Mr Motta was also entitled to
compensation for the non-pecuniary damage arising from the failure
to conduct the proceedings within a reasonable time.
As regards the civil proceedings, however, the Commission was
of the view that a finding of a violation would constitute
sufficient satisfaction.
21. In the Government's opinion no pecuniary damage could be
established. At the most there might be slight non-pecuniary
damage for which it would be appropriate, if a violation were to be
found, to award a modest sum.
22. The evidence does not show that the applicant suffered
pecuniary damage deriving from the violation of Article 6
para. 1 (art. 6-1). On the other hand, he must have sustained a
degree of non-pecuniary damage for which the Court, making an
assessment on an equitable basis, awards him 10,000,000 lire.
B. Costs and expenses
23. The applicant claimed a total of 239,600,000 lire for costs
and expenses incurred in the national courts and subsequently in
Strasbourg. He presented his own case before the Commission,
received legal aid for the proceedings before the Court and used a
lawyer only at the oral stage of those proceedings.
24. Having regard to the information available to it, the
observations submitted and its case-law in this field, the Court,
making an assessment on an equitable basis, awards him 2,000,000
lire for such of his costs and expenses as are not covered by legal
aid.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6 para. 1
(art. 6-1) of the Convention;
2. Holds that the respondent State is to pay to Mr Motta
10,000,000 (ten million) Italian lire for non-pecuniary damage
and 2,000,000 (two million) 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
19 February 1991.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy