In the Owners' Services Ltd 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 B. Walsh,
Mr J. Pinheiro Farinha,
Mr R. Bernhardt,
Mr C. Russo,
Mr A. Spielmann,
Mr I. Foighel,
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 28 June 1991,
Delivers the following judgment, which was adopted on that
date:
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Notes by the Registrar
* The case is numbered 9/1991/261/332. 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 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.
_______________
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. 12144/86) against the Italian Republic
lodged with the Commission under Article 25 (art. 25) by a
company incorporated under English law, Owners' Services Ltd, on
13 March 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. 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 Diana, Ridi, Casciaroli, Manieri, Mastrantonio,
Idrocalce S.r.l., Cardarelli, Golino, Taiuti, Maciariello,
Manifattura FL, Steffano, Ruotolo, Vorrasi, Cappello, G. v.
Italy, Caffé Roversi S.p.a., Andreucci, Gana, Barbagallo, Cifola,
Pandolfelli and Palumbo, Arena, Pierazzini, Tusa, Cooperativa
Parco Cuma, Serrentino, Cormio, Lorenzini, Bernardini and Gritti
and Tumminelli* should be heard by the same Chamber.
_______________
* Cases of Diana (3/1991/255/326), Ridi (4/1991/256/327),
Casciaroli (5/1991/257/328), Manieri (6/1991/258/329),
Mastrantonio (7/1991/259/330), Idrocalce S.r.l. (8/1991/260/331),
Cardarelli (10/1991/262/333), Golino (11/1991/263/334),
Taiuti (12/1991/264/335), Maciariello (13/1991/265/336),
Manifattura FL (15/1991/267/338), Steffano (16/1991/268/339),
Ruotolo (18/1991/270/341), Vorrasi (20/1991/272/343), Cappello
(22/1991/274/345), G. contre Italie (24/1991/276/347) Caffè
Roversi S.p.a. (25/1991/277/348), Andreucci (33/1991/285/356),
Gana (36/1991/288/359), Barbagallo (38/1991/290/361), Cifola
(40/1991/292/363), Pandolfelli and Palumbo (41/1991/293/364),
Arena (42/1991/294/365), Pierazzini (43/1991/295/366), Tusa
(44/1991/296/367), Cooperativa Parco Cuma (50/1991/302/373),
Serrentino (51/1991/303/374), Cormio (58/1991/310/381),
Lorenzini, Bernardini and Gritti (59/1991/311/382),
Tumminelli (61/1991/313/384).
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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 23 April 1991,
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. Morenilla and Mr F. Bigi (Article 43 in fine of
the Convention and Rule 21 para. 4) (art. 43). Subsequently
Mr B. Walsh and Mr R. Bernhardt, substitute judges, replaced Sir
Vincent Evans, who had resigned and whose successor at the Court
had taken up his duties before the deliberations, and Mr Matscher,
who was unable to take part in the further consideration of the
case (Rules 2 para. 3, 22 para. 1 and 24 para. 1).
4. In response to the enquiry made in accordance with Rule 33
para. 3 (d), the applicant company informed the Registrar on
13 May 1991 of its decision to "withdraw" and not to seek just
satisfaction. At the same time it notified him that it had
changed its name and was now called Rank Travel Ltd.
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 possibility of the case being
struck out of the list (Rule 49 para. 2). The Registrar received
their observations on 7 and 4 June respectively.
AS TO THE FACTS
6. The facts established by the Commission pursuant to Article 31
para. 1 (art. 31-1) of the Convention are as follows
(paragraphs 16-22 of its report - see paragraph 8 below):
"16. By summons served on 13 March 1982, the applicant
took proceedings before the Salerno court against the I.
company to recover 29,850,000 lire which it had paid in
error and which the defendant refused to refund.
17. The investigation began at the hearing of 28 April
1982. The next hearing took place on 29 September 1982,
when the parties requested an adjournment. At the hearing
on 1 December 1982, the defendant requested an expert
opinion. The applicant, however, asked that a hearing date
be set for the submission of final pleas. The court
reserved its decision and subsequently, on 2 February 1983,
asked the applicant company whether it accepted the Italian
translation, in the defendant's file, of certain documents
originally in English.
18. The court ordered the adjournment of the next
hearing, due to take place on 6 April 1983, to 29 June 1983
and subsequently to 23 November 1983 and 18 April 1984, for
reasons not mentioned in the records of the hearings in
question. The Government have nevertheless stated that the
adjournments were prompted by the investigating judge's
unavailability and by the suspension of court business at
election time.
19. The investigation proceeded at the hearings on
18 July 1984, 10 October 1984 and 3 April 1985. On
13 November 1985 the investigation was concluded and the
case was referred to the appropriate Chamber of the court.
20. The hearing before that Chamber was fixed for
3 February 1987. On 9 December 1985 the applicant
requested an earlier date. In compliance with the request,
the presiding judge of the court brought the hearing
forward to 7 October 1986.
21. On 2 December 1986 the court allowed the
applicant's claim for reimbursement. The text of the
decision was lodged with the registry on 6 March 1987.
22. On 2 June 1987 the applicant agreed to a friendly
settlement of the case."
PROCEEDINGS BEFORE THE COMMISSION
7. In his application of 13 March 1986 to the Commission
(no. 12144/86), the applicant company complained of the length
of the civil proceedings brought by it. It relied on Article 6
para. 1 (art. 6-1) of the Convention.
8. 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 208
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
9. In a letter of 13 May 1991 the applicant company informed
the Court of its wish to "withdraw" and its decision not to seek
just satisfaction.
The Government were consulted and expressed the view that
the case should be struck out of the list pursuant to Rule 49
para. 2 of the Rules of Court. The Delegate of the Commission
indicated that he had no objection to the application of that
provision, which is worded as follows:
"...
2. 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.
... ."
10. Although the applicant's decision does not strictly speaking
constitute a withdrawal, since it was not taken by a party to the
case in view of the fact that Protocol No. 9 (P9) has not yet
come into force (Rule 1 (h) and (k) and see the De Becker
judgment of 27 March 1962, Series A No. 4, p. 23, para. 4), it
is in any event a "fact of a kind to provide a solution of the
matter". In addition the Court discerns no reason of ordre
public (public policy) for continuing the proceedings (Rule 49
para. 4).
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
28 June 1991.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy