In the case of Muti 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 R. Bernhardt,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr C. Russo,
Mr N. Valticos,
Mr I. Foighel,
Mr R. Pekkanen,
Mr G. Mifsud Bonnici,
and also of Mr M.-A. Eissen, Registrar,
Having deliberated in private on 25 November 1993 and
22 February 1994,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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* Note by the Registrar: The case is numbered 32/1993/427/506. 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.
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PROCEDURE
1. The case was referred to the Court by the Italian Government
("the Government") on 29 July 1993, 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. 14146/88) against the
Republic of Italy lodged with the European Commission of Human Rights
("the Commission") under Article 25 (art. 25) by an Italian national,
Mr Giovanni Muti, on 15 June 1988.
The Government's application referred to Articles 44, 45 and
48 (art. 44, art. 45, art. 48) and to the declaration whereby Italy
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the application 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 and designated the lawyer who
would represent him (Rule 30), who was given leave by the President to
use the Italian language (Rule 27 para. 3).
3. The Chamber to be constituted 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 25 August 1992, in the presence of the Registrar, the
President drew by lot the names of the other seven members, namely
Mr R. Bernhardt, Mr F. Gölcüklü, Mr L.-E. Pettiti, Mr N. Valticos,
Mr I. Foighel, Mr R. Pekkanen and Mr G. Mifsud Bonnici (Article 43 in
fine of the Convention and Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Government,
the applicant's lawyer and the Delegate of the Commission on the
organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant
to the order made in consequence, the Registrar received the
applicant's memorial on 19 October 1993, the Government's memorial on
15 November 1993 and the observations of the Delegate of the Commission
on 25 November 1993.
5. On 4 October 1993 the Commission had produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
6. On 23 November 1993 the Chamber decided to dispense with a
hearing in the case, having satisfied itself that the conditions for
this derogation from the usual procedure had been met (Rules 26 and
38).
7. On 7 December 1993 the Government filed certain documents
requested by the Registrar on the President's instructions
(Rule 37 para. 1 in fine).
AS TO THE FACTS
8. Mr Giovanni Muti lives in Bergamo. The facts established by
the Commission pursuant to Article 31 para. 1 (art. 31-1) of the
Convention are as follows (see paragraphs 6-10 of its report):
"6. Following an examination by a Ministry of Health
medical board in Bergamo on 21 March 1975, the applicant was
declared physically unfit to continue to perform his duties at
the Bergamo State Counsel's office. In an order (decreto)
issued on 10 April 1975 and registered at the Court of Audit
on 2 May 1977 the Ministry of Justice acknowledged his right
to a pension from 8 April 1975.
7. On 27 August 1975 Mr Muti applied for an enhanced
pension on the ground that his invalidity had been caused by
the performance of his duties. He was examined by the
military medical board, which submitted its opinion on
30 November 1978. As a result of this opinion, the Ministry
refused the application by an order of 2 March 1979; the
reason given was that, according to the 1978 medical report,
some of the applicant's health problems had not been caused by
the duties he had performed, while others, although they could
have been caused by them, were not such as to make him unfit
for work.
8. On 1 June 1979 the applicant appealed to the Court of
Audit against that decision. On 24 October 1979 the court's
secretariat requested the Ministry of Justice to send it the
applicant's file, and this was done on 15 November 1979. On
3 December 1979 the file was forwarded to Principal State
Counsel at the Court of Audit (Procuratore Generale presso la
Corte dei Conti) for him to prepare the case and file his
submissions.
9. On 3 April 1984 Principal State Counsel requested the
Ministry of Defence medical board to examine the applicant and
give its opinion as to the causes and extent of his health
problems. The medical report was received by the Principal
State Counsel's office on 2 December 1986. On 20 January 1987
Principal State Counsel filed submissions to the effect that
Mr Muti's application should be refused.
10. On 22 May 1987 the President of the Third Judicial
Division set the case down for hearing on 16 September 1987.
On 7 September 1987 the applicant submitted a private medical
report. After the hearing, the court adopted a decision which
partly granted his application in that it recognised his right
to an enhanced pension in respect of the health problems that
had arisen from the performance of his duties. This judgment,
delivered at final instance, was filed at the registry on
8 January 1988 and communicated to the applicant's lawyer on
22 April 1988."
PROCEEDINGS BEFORE THE COMMISSION
9. Mr Muti applied to the Commission on 15 June 1988. Relying on
Article 6 para. 1 (art. 6-1) of the Convention, he complained of the
length of the proceedings he had brought in the Court of Audit.
10. The Commission declared the application (no. 14146/88)
admissible on 12 January 1993. In its report of 5 May 1993 (made under
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 281-C of
Series A of the Publications of the Court), but a copy of the
Commission's report is available from the registry.
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AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
11. Mr Muti complained of the length of the proceedings conducted
in the Court of Audit. He alleged a breach of Article 6 para. 1
(art. 6-1) of the Convention, which provides as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing within a reasonable
time by [a] ... tribunal ..."
The Government contested this allegation, whereas the
Commission agreed with it.
12. The period to be taken into consideration began on 1 June 1979,
the date of the appeal to the Court of Audit, and ended on
8 January 1988 when that court's judgment was filed. It thus lasted
slightly more than eight years and seven months.
13. The reasonableness of the length of proceedings is to be
determined 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.
14. The Government pleaded the excessive workload of the Court of
Audit and the conduct of the applicant. He had failed to request that
his case be dealt with more quickly. Yet he could have had the
proceedings expedited in accordance with a practice subsequently
endorsed in a circular (ordine di servizio) issued by Principal State
Counsel at the Court of Audit. This document dated 28 October 1988,
a copy of which was produced by the Government (see paragraph 7 above),
provides for a derogation under certain conditions from the rule that
applications must be examined chronologically. Furthermore, a letter
of 30 November 1993 from an official of the relevant division of the
Court of Audit confirmed that in 1980 cases with registration numbers
near to Mr Muti's case number had been given priority following
requests from the persons concerned.
15. The argument based on the excessive workload, as the Court has
repeatedly held, cannot be taken into consideration since Article 6
para. 1 (art. 6-1) imposes on the Contracting States the duty to
organise their judicial systems in such a way that their courts can
meet each of its requirements (see, as the most recent authority, the
Massa v. Italy judgment of 24 August 1993, Series A No. 265-B, p. 21,
para. 31).
16. On the issue of the applicant's conduct, it should be noted,
as the Commission pointed out, that the Government have not shown that
the possibility afforded to Mr Muti of speeding up the proceedings was
a real one. Despite the information provided by the Government, there
is no proof that such a step would have had any prospects of success,
regard being had in addition to the discretionary power of the
competent judicial authority and its excessive workload. In these
circumstances, it would not appear that the applicant's alleged
passivity contributed to slowing down the proceedings.
17. On the other hand, it is apparent from the file that there were
two main periods of stagnation attributable to the respondent State:
Principal State Counsel waited four years and four months before
requesting an expert opinion, the only investigative measure taken (see
paragraph 8, nos. 8 and 9, above), and there was then a period of two
years and eight months before the medical report was filed (see
paragraph 8, no. 9, above).
18. Accordingly and in view of what was at stake in the proceedings
for Mr Muti, the Court cannot regard as "reasonable" the time which
elapsed in this case. There has therefore been a violation of
Article 6 para. 1 (art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
19. 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
20. The applicant sought 20,000,000 Italian lire for non-pecuniary
damage in respect of the long period of uncertainty which he had had
to endure.
21. The Government considered this claim unfounded and excessive.
In view of Mr Muti's conduct, the mere finding of a violation, if any,
would afford sufficient just satisfaction.
The Delegate of the Commission regarded the amount claimed as
disproportionate but recommended that an award be made, which he did
not quantify.
22. Taking its decision on an equitable basis, the Court awards the
applicant 10,000,000 lire.
B. Costs and expenses
23. Mr Muti also sought 5,011,050 lire in respect of the costs and
expenses relating to the proceedings before the Strasbourg
institutions.
The Government left this matter to the Court's discretion.
24. Like the Delegate of the Commission, the Court finds the claim
reasonable. It therefore accepts it in full.
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 the applicant,
within three months, 10,000,000 (ten million) Italian lire in
respect of non-pecuniary damage and 5,011,050 (five million
eleven thousand and fifty) Italian lire in respect of 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 23 March 1994.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy