In the case of Paccione v. Italy (1),
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 Rules of Court A (2), as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr C. Russo,
Sir John Freeland,
Mr L. Wildhaber,
Mr G. Mifsud Bonnici,
Mr B. Repik,
Mr P. Jambrek,
Mr K. Jungwiert,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 27 January and 22 March 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
1. The case is numbered 49/1994/496/578. 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.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) and thereafter only to cases
concerning States not bound by that Protocol (P9). They correspond to
the Rules that came into force on 1 January 1983, as amended several
times subsequently.
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PROCEDURE
1. The case was referred to the Court by the Italian Government
("the Government") on 12 September 1994, 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. 16753/90) against
the Italian Republic lodged with the European Commission of Human
Rights ("the Commission") under Article 25 (art. 25) by an Italian
national, Mr Francesco Paccione, on 24 February 1989.
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) of the
Convention.
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
represent him (Rule 30). The lawyer 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 24 September 1994, in the presence of the Registrar,
the President drew by lot the names of the other seven members, namely
Mr R. Bernhardt, Sir John Freeland, Mr L. Wildhaber,
Mr G. Mifsud Bonnici, Mr B. Repik, Mr P. Jambrek and Mr K. Jungwiert
(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
Government's memorial on 25 November 1994 and the applicant's memorial
on 13 December 1994. The Delegate of the Commission did not submit any
written observations. On 9 January 1995 the applicant lodged his
claims for just satisfaction.
5. On 22 November 1994 the Commission had produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
6. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
24 January 1995. The Court had held a preparatory meeting beforehand.
Shortly before the hearing, the applicant's lawyer, Mr Rocchio,
informed the registry that he would not be present.
There appeared before the Court:
(a) for the Government
Mr G. Raimondi, magistrato, on secondment to
the Diplomatic Legal Service,
Ministry of Foreign Affairs, Co-Agent;
(b) for the Commission
Mrs J. Liddy, Delegate.
The Court heard addresses by Mrs Liddy and Mr Raimondi.
AS TO THE FACTS
7. Mr Francesco Paccione, a retired district medical officer born
in 1905, lives in San Remo.
8. On 1 March 1980 San Remo District Council communicated to him its
decision determining the amount of his ordinary retirement pension.
The applicant claims that he applied to the Court of Audit on
7 April 1980, complaining that the assessment did not take account of
all the relevant factors. In a letter of 11 April 1985 he asked for
his application to be dealt with speedily. This request was registered
on 18 April 1985 and it was listed on the 20th. On 24 April 1985 the
Court of Audit asked the relevant ministry for the applicant's
administrative file, which was transmitted to it on 13 December 1985.
9. On 14 April 1989 the Court of Audit set the case down for hearing
on 9 June, and directed that all documents were to be submitted by
20 May 1989 at the latest. The applicant was notified of these dates
on 19 May 1989 and informed the court that he could not keep to them.
He asked for new time-limits to be fixed so that he could instruct
counsel, which he did, according to the Government, on 19 October 1989.
10. On 3 July 1990 the applicant's lawyers successfully requested
that a hearing be set down for 19 April 1991. On the appointed day
they were absent abroad for professional reasons, and the lawyer they
had briefed to stand in for them requested an adjournment without their
knowledge.
On their return they asked for the case to be tried as quickly
as possible.
11. At the close of the hearing held on 11 March 1992 the Court of
Audit, noting that the application had not been served on the Treasury,
ruled that this procedural defect made it inadmissible. The text of
the judgment was deposited in the registry on 4 March 1993.
PROCEEDINGS BEFORE THE COMMISSION
12. Mr Paccione applied to the Commission on 24 February 1989.
Relying on Article 6 para. 1 (art. 6-1) of the Convention, he
complained of the length of the trial of his action in the Court of
Audit.
13. The Commission declared the application (no. 16753/90) admissible
on 12 January 1994. In its report of 11 May 1994 (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 (1).
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1. Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 315-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 BY THE GOVERNMENT TO THE COURT
14. In their memorial the Government asked the Court to hold that
there had been no violation of the Convention in the case.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
15. The applicant complained of the length of the proceedings in the
Court of Audit. He alleged a violation of Article 6 para. 1 (art. 6-1)
of the Convention, under which,
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal ..."
16. The Government contested this claim, whereas the Commission
upheld it.
17. Mr Paccione contended that the period to be taken into
consideration had begun on 7 April 1980 (see paragraph 8 above), not
on 11 April 1985 as the Government had argued.
The Court merely notes that even after being invited by it to
submit evidence supporting this assertion, the applicant did not prove
that he had applied to the Court of Audit in 1980. Only his letter of
11 April 1985 was registered and listed by the registry of that court
(see paragraph 8 above). This latter date therefore marked the
beginning of the proceedings, which ended on 4 March 1993, when the
judgment dismissing his application was made public on being deposited
in the registry (see, as the most recent authority, the Muti v. Italy
judgment of 23 March 1994, Series A no. 281-C, p. 56, para. 12). They
thus lasted nearly seven years and eleven months.
18. 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.
19. The Government pleaded the applicant's conduct and the complexity
of the case.
They argued that Mr Paccione had contributed to slowing down the
proceedings by requesting two adjournments and that it ill became him
now to complain to the Court of an infringement of his right to a
speedy hearing of his case.
The lapse of time between the lodging of the application and the
first hearing (from 11 April 1985 to 9 June 1989) had been due to the
need to retrace the history of Mr Paccione's civilian and military
service, which had proved to be a very time-consuming task.
20. Like the Delegate of the Commission, the Court considers that the
first adjournment was justified on account of the short interval
between the date on which the applicant received notification that a
hearing had been set down (see paragraph 9 above) and the last day on
which he could have lodged documents for that hearing (scarcely
twenty-four hours, from 19 to 20 May 1989).
The second adjournment did, admittedly, cause a delay of just
under eleven months.
As regards the complexity of the case, the Court accepts that the
authorities may have experienced difficulties in collecting the
documents evidencing the applicant's service record. However, that is
not relevant in the instant case, since the Court of Audit waited until
11 March 1992 before dismissing the application on the sole ground that
it had not been served on the Treasury. As this was a condition of
admissibility, the Court of Audit should have noticed immediately that
it had not been satisfied. The investigation was therefore
unnecessary.
21. In the light of the above considerations, the Court concludes
that there has been a violation of Article 6 para. 1 (art. 6-1) of the
Convention in the present case.
II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
22. Under Article 50 (art. 50) of the Convention,
"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."
23. On 9 January 1995 Mr Paccione's lawyer filed with the registry
his client's claims in respect of damage sustained. He also sought
reimbursement of costs and expenses.
24. The Government argued that these claims were inadmissible as
being out of time.
25. The Court notes that Rule 50 para. 1 provides: "Any claims which
the applicant may wish to make under Article 50 (art. 50) of the
Convention shall ... be set out in his memorial or, if he does not
submit a memorial, in a special document filed at least one month
before the date [of] ... the hearing." However, Mr Rocchio did not
submit claims for just satisfaction either in his memorial or even
before the final limit of one month before the hearing, despite
repeated reminders by the registry.
The time allowed in this case for submission of these claims
appears sufficiently long; they must therefore be dismissed as being
out of time.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a breach of Article 6 para. 1
(art. 6-1) of the Convention;
2. Dismisses 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 April 1995.
Signed Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
Full & Egal Universal Law Academy