In the case of Pierazzini 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 29 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 43/1991/295/366. 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. 13265/87) against the Italian Republic lodged with the
Commission under Article 25 (art. 25) by an Italian national,
Mrs Paola Pierazzini, on 3 September 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, the applicant stated that she
wished to take part in the proceedings and designated the lawyer who
would represent her (Rule 30).
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,
Pandolfelli and Palumbo, Arena, 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 to 42/1991/294/365;
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 hearing, 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 applicant's lawyer on the organisation of the
proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in
consequence, the Registrar received the memorial of the applicant
- whom the President had authorised to use the Italian language
(Rule 27 para. 3) - on 15 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 would submit
oral observations.
6. On 28 August the Commission produced the file on the
proceedings before it, as requested by the Registrar on the
President's instructions.
7. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg, on
29 October 1991. 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,
Mr G. Manzo, magistrato, seconded to the
Ministry of Justice,
Mrs A. Passannanti, magistrato, seconded to the
Ministry of Justice, Counsel;
(b) for the Commission
Mr J.A. Frowein, Delegate;
(c) for the applicant
Mr C. Borghi, avvocato, Counsel.
The Court heard addresses by Mr Raimondi and Mrs Passannanti
for the Government, by Mr Frowein for the Commission and by
Mr Borghi for the applicant.
8. On 10 October the Government had lodged their observations
on the applicant's claims for just satisfaction (Article 50 of the
Convention) (art. 50); on 5 November the Commission filed its
observations on those claims.
AS TO THE FACTS
9. Mrs Paola Pierazzini is an Italian national and resides in
Livorno. She is a housewife. The facts established by the
Commission pursuant to Article 31 para. 1 (art. 31-1) of the Convention
are as follows (paragraphs 16-21 of its report):
"16. On 27 December 1983 the applicant took out a writ
against Mr C. and Mrs X, Mrs Y and Mrs Z before the Tempio
Pausania District Court, asking for a settlement in respect
of holdings in two companies which she claimed to have
inherited following the death of her father, a joint owner
of the said companies.
17. After two postponements by the District Court of its
own motion on 1 March and 7 June 1984, the case was
adjourned indefinitely because of the transfer of the
investigating judge. Pending the appointment of the new
investigating judge, the applicant applied on
21 Octobre 1984 for the preventive attachment of Mr C.'s property
to the amount of 150,000,000 Italian lire. The application was
rejected by the presiding judge of the District Court on
18 April 1985 on the ground that he no longer had jurisdiction
in the case as the new investigating judge had been
appointed.
18. The investigation commenced at the hearing of
22 May 1986, followed by hearings on 13 November 1986,
18 December 1986, 12 January 1987 (adjourned as the
defendants' counsel could not appear) and 22 January 1987.
Thereafter, the examination of the case was again suspended
because of the transfer of the investigating judge.
19. The hearing before the new investigating judge did
not take place until 9 June 1988. At the hearing of
5 July 1988, the applicant re-applied for an attachment and
requested an expert's assessment of the assets of the
companies concerned. The investigating judge reserved his
decision.
20. On 3 March 1989 he dismissed the application for an
attachment but directed that the requested assessment be
made. The expert appointed was sworn in at the hearing of
20 April 1989 and given sixty days to lodge the report.
21. As this time-limit was not complied with, the
hearing of 12 October 1989 was adjourned to 16 November 1989
(on which date the applicant requested and received
permission to procure certain bank statements), then to
1 March 1990 and lastly to 15 November 1990."
10. According to the information supplied to the European Court
by the Government and the applicant, that last hearing did not take
place either, but the expert, who in the meantime had obtained an
extension of the time-limit, submitted his report on that date. In
addition, on 6 June 1991 the investigating judge suspended the
proceedings on account of the death of Mr C.
PROCEEDINGS BEFORE THE COMMISSION
11. Mrs Pierazzini lodged her application with the Commission on
3 September 1987. She complained of the length of the civil
proceedings brought by her and relied on Article 6 para. 1 (art. 6-1) of
the Convention.
12. On 11 May 1990 the Commission declared the application
(no. 13265/87) 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-C
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 the Government confirmed the submission put
forward in their memorial, in which they requested the Court to hold
"that there [had] 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 her 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.
15. The period to be taken into consideration began on
27 December 1983, when the proceedings were instituted against the
defendants in the Tempio Pausania District Court. It has not yet
ended as that court has still to give judgment.
16. 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.
17. The Government invoked the conduct of the applicant - who
had not requested that her case be examined more rapidly - and the
transfer of two investigating judges.
18. The Court recognises that the respondent State is not in
principle answerable for certain adjournments which were requested
by the applicant and not ordered by the judicial authorities of
their own motion.
It notes nevertheless, like the Commission, that there were
two periods of stagnation for which the State was entirely
responsible. These were from 27 December 1983 to 22 May 1986 and
from 22 January 1987 to 9 June 1988, a total of more than three
years and nine months.
The Government pleaded the transfer of the judges, but
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 v.
Italy judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).
In addition, the expert did not submit his report until
15 November 1990, a good ten months after the expiry of the prescribed
time-limit. He was acting in the context of judicial proceedings
supervised by the judge; the latter remained responsible for the
preparation of the case 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).
19. In sum, the Court cannot regard as "reasonable" in this
instance a lapse of time already amounting to more than eight years.
There has therefore been a violation of Article 6 para. 1
(art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
20. 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
21. Mrs Pierazzini claimed in the first place 319,950,000
Italian lire for pecuniary and non-pecuniary damage.
The Commission took the view that, in addition to reparation
for non-pecuniary damage, the applicant was entitled to compensation
for any pecuniary damage sustained by her if she succeeded in
establishing its existence and that of a causal connection with the
violation found.
In the Government's contention, there was no pecuniary
damage because the case was still pending in the national courts; as
to non-pecuniary damage, the finding of a violation would constitute
sufficient just satisfaction for the purposes of Article 50
(art. 50).
22. The Court agrees with the Government on the first point, but
considers that the applicant must have suffered non-pecuniary damage
in respect of which, making an assessment on an equitable basis, it
awards her 15,000,000 lire.
B. Costs and expenses
23. The applicant also sought the reimbursement of 11,500,000
lire for the costs and expenses which she claimed to have incurred
before the Convention organs.
Having regard to the evidence at its disposal and to its
case-law in this field, the Court awards her 8,000,000 lire under
this head.
C. Interest
24. 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.
25. 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 applicant.
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 applicant,
within three months, 15,000,000 (fifteen million) Italian
lire for non-pecuniary damage and 8,000,000 (eight 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
27 February 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy