In the case of Pandolfelli and Palumbo 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 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 41/1991/293/364. 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.
_______________
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. 13218/87) against the Italian Republic lodged with the
Commission under Article 25 (art. 25) by two Italian nationals,
Mr Gennaro Pandolfelli and Mrs Domenica Palumbo, on 20 August 1987.
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, Mrs Palumbo and her two sons
informed the Registrar on 24 April 1991 of Mr Pandolfelli's death;
they stated that they wanted the proceedings to continue and to take
part in them and be represented by the lawyer whom they had
designated (Rule 30). For reasons of convenience Mr Pandolfelli and
Mrs Palumbo will continue to be referred to as "the applicants" in
this judgment, although it is now Mrs Palumbo and her two sons who
are to be regarded as having that status (see, inter alia, the
Vocaturo v. Italy judgment of 24 May 1991, Series A no. 206-C,
p. 29, para. 2).
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, Maciariello,
Manifattura FL, Steffano, Ruotolo, Vorrasi, Cappello, G. v. Italy,
Caffè Roversi S.p.a., Andreucci, Gana, Barbagallo, Cifola, 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 13/1991/265/336; 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; 42/1991/294/365 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"), the Delegate of the
Commission and the applicants' lawyer on the organisation of the
proceedings (Rules 37 para. 1 and 38). In accordance with the order
made in consequence, the Registrar received the memorial of the
applicants - whom the President had authorised to use the Italian
language (Rule 27 para. 3) - on 12 July 1991 and the Government's
memorial on 16 July. 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 1991 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 10 October and 5 November, respectively, the Government
and the Commission filed their observations on the applicants'
claims for just satisfaction (Article 50 of the Convention)
(art. 50).
AS TO THE FACTS
9. Mr Gennaro Pandolfelli and Mrs Domenica Palumbo, both of
Italian nationality, resided in Rome at the time of the former's
death. The facts established by the Commission pursuant to
Article 31 para. 1 (art. 31-1) of the Convention are as follows
(paragraphs 16-27 of its report):
"16. On 13 September 1972 the applicants took proceedings
before the Terracina magistrate's court (pretore) against
Mrs M. in order to establish that they had right of way
through her land.
17. The investigation opened at the hearing of
13 October 1972. At the hearing of 2 February 1973, the
magistrate's court ordered an expert's report. The expert
appointed was sworn in at the hearing of 24 February 1973
and given fifty days to lodge the report. However, since
the time-limit was not observed, the hearing of
27 April 1973 was postponed to 8 June 1973.
18. The investigation proceeded during hearings on
26 October 1973 (when the applicants asked that the expert
be summoned in order to obtain clarifications),
22 February 1974, 26 April 1974 (when Mrs M. requested an
inspection of the site), 17 May 1974, 25 October 1974,
14 February 1975, 21 February 1975 and 5 December 1975, when
judgment was reserved.
19. However, by order of 6 March 1976 the magistrate's
court decided to reopen the investigation and obtain further
clarifications from the expert.
20. On 2 April 1976 the expert appeared in court and was
given thirty days to lodge a further report. Additional
hearings took place on 1 October 1976, 4 February 1977
(adjourned at the parties' request), 27 May 1977 (adjourned
at Mrs M.'s request), 21 October 1977, 27 January 1978
(adjourned by court order) and 28 April 1978.
21. Judgment was again reserved at the hearing of
9 February 1979. On 14 February 1979 the magistrate's court
found that it lacked jurisdiction to settle the dispute and
recognised the jurisdiction of the Latina District Court.
22. On 23 March 1979 the applicants applied to the Court
of Cassation for a decision on the question of jurisdiction
(istanza di regolamento di competenza), which decision was
given on 28 December 1979 and found that the Terracina
magistrate's court did have jurisdiction. The text of the
decision was lodged with the registry on 28 March 1980.
23. At the hearing of 31 October 1980 the magistrate's
court invited the parties to make their final submissions,
and they did so at the hearing on 27 February 1981. At the
close of the hearing on 27 November 1981, the magistrate's
court allowed the applicants' claim. The text of the
decision was lodged with the registry on 18 December 1981.
On 3 December 1982 Mrs M. appealed to the Latina District
Court.
24. The first hearing before the investigating judge
took place on 8 February 1983. The next hearing, fixed for
28 June 1983, was postponed by court order to
20 October 1983. One more hearing took place on
10 January 1984, after which the parties made their final
submissions at the hearing of 26 June 1984.
25. The hearing before the competent court chamber,
fixed for 9 December 1986, was postponed by court order to
22 March 1988, owing to the transfer of the reporting judge.
26. In compliance with a request by the applicants,
filed on 16 December 1986, the aforementioned hearing was
brought forward to 24 November 1987 but was subsequently
postponed to 22 December 1987.
27. On 22 December 1987 judgment was reserved and on
12 January 1988 the magistrate's court's decision was
overruled and the applicants' claim was dismissed. The text
of the judgment was lodged with the registry on
26 February 1988.
28. ... ."
10. According to the information supplied to the European Court,
the applicants appealed, on 20 December 1988, to the Court of
Cassation, which gave judgment on 31 May 1991; its decision had not
yet been filed with the registry.
PROCEEDINGS BEFORE THE COMMISSION
11. Mr Pandolfelli and Mrs Palumbo lodged their application with
the Commission on 20 August 1987. They complained of the length of
the civil proceedings brought by them and relied on Article 6 para. 1
(art. 6-1) of the Convention.
12. On 11 May 1990 the Commission declared the application
(no. 13218/87) 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 231-B
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
13. The applicants complained that their 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 did not begin when
the proceedings were instituted against Mrs M. in the Terracina
magistrate's court, on 13 September 1972, but only on 1 August 1973,
when the Italian declaration accepting the right of individual
petition (Article 25) (art. 25) took effect. In order to determine
the reasonableness of the length of time which elapsed after that
date, regard must be had, however, to the state of the case at that
time (see, inter alia, the Vocaturo v. Italy judgment of
24 May 1991, Series A no. 206-C, p. 32, para. 14).
This period ended, at the earliest, on 31 May 1991, as the
text of the judgment has not yet been filed with the registry.
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 exceptional circumstances, such as
the reopening of the investigation and the transfer of the
investigating judge.
17. The Court is not persuaded by this argument.
Although the decision to reopen the investigation at first
instance undoubtedly complicated the course of the proceedings, it
was taken by the judge who had studied the file and who had at his
disposal all the evidence adduced up to that point. Clearly it was
not a very simple case because an expert opinion had already been
sought and it proved necessary to seek clarifications from the
expert. Nevertheless, the investigation was conducted under the
supervision of the magistrate's court, which remained responsible
for the preparation and the speedy conduct of the trial (see the
Capuano v. Italy judgment of 25 June 1987, Series A no. 119, p. 13,
para. 30). Furthermore, it concluded that it lacked jurisdiction nearly
six and a half years after the case had been brought before it
(13 September 1972 - 14 February 1979). The Court of Cassation only
required until 28 December 1979 to overrule it on this question, but
it is hard to understand why it should have taken three months for
the text of that decision to be filed with the registry.
There was also, on appeal, between the conclusion of the
investigation and the trial hearing, a long interval (26 June 1984
- 22 December 1987) due to, among other things, the transfer of the
investigating judge. However, 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 judgment, cited above, Series A
no. 206-C, p. 32, para. 17).
In its turn the Court of Cassation did not give judgment for
more than two years and five months (20 December 1988 -
31 May 1991); moreover, eight months have gone by since then and the
text of this judgment has still not been filed with the registry.
On the other hand, after the question of jurisdiction had
been determined, the investigation would seem to have progressed at
a normal pace at first instance (28 March 1980 - 27 November 1981),
and subsequently on appeal (8 February 1983 - 26 June 1984).
Furthermore, the parties brought about a number of adjournments,
Mrs M. waited almost a year before filing an appeal
(18 December 1981 - 3 December 1982) and the applicants did not
appeal to the Court of Cassation for about ten and a half months
(26 February - 20 December 1988); the State cannot be held
responsible for the resulting delays.
18. Nevertheless, taking the proceedings as a whole, the Court
cannot regard as "reasonable" in this instance a lapse of time of
more than eighteen years.
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. The applicants claimed in the first place 300,000,000
Italian lire for pecuniary and non-pecuniary damage.
The Commission took the view that, in addition to reparation
for non-pecuniary damage, they were entitled to compensation for any
pecuniary damage sustained by them if they 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 applicants undoubtedly suffered
non-pecuniary damage, for which the Court, making an assessment on
an equitable basis, awards them 5,000,000 lire.
B. Costs and expenses
22. The applicants also sought 3,850,000 lire in respect of
costs incurred before the Convention organs.
Having regard to the evidence at its disposal and to its
case-law in this field, the Court awards them the sum claimed in its
entirety.
C. Interest
23. 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.
24. 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 applicants.
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 the applicants,
within three months, 5,000,000 (five million) Italian lire
for non-pecuniary damage and 3,850,000 (three million eight
hundred and fifty thousand) 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
27 February 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy