In the Santilli 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 J. Cremona,
Mr Thór Vilhjálmsson,
Mrs D. Bindschedler-Robert,
Mr F. Gölcüklü,
Mr C. Russo,
Mr N. Valticos,
Mr S.K. Martens,
Mr J.M. Morenilla,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 4 October 1990 and
24 January 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
* The case is numbered 5/1990/196/256. 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 Protocol No. 8, 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.
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PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 16 February 1990, 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. 11634/85) against Italy lodged with the Commission
under Article 25 (art. 25) by a national of that State, Mr Franco
Santilli, on 4 March 1985.
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) of the Convention and Article 1 of Protocol No. 1
(P1-1).
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). On 19 March 1990 the President
of the Court granted him leave to use the Italian language (Rule 27
para. 3).
3. On 21 February 1990 the President decided, under Rule 21
para. 6 and in the interests of the proper administration of
justice, that a single Chamber should be constituted to consider
the instant case and the Brigandì and Zanghì cases*.
_______________
* Note by the Registrar. Cases nos. 2/1990/193/253 and
3/1990/194/254.
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4. 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 26 March 1990, in the presence of
the Registrar, the President drew by lot the names of the other
seven members, namely Mr J. Cremona, Mr Thór Vilhjálmsson, Mrs D.
Bindschedler-Robert, Mr F. Gölcüklü, Mr R. Bernhardt, Mr S.K.
Martens and Mr J.M. Morenilla (Article 43 in fine of the Convention
and Rule 21 para. 4) (art. 43). Subsequently Mr N. Valticos,
substitute judge, replaced Mr Bernhardt, who was unable to take
part in the consideration of the case (Rules 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 Registrar, consulted the Agent
of the Italian Government ("the Government"), the Delegate of the
Commission and the applicant on the need for a written procedure
(Rule 37 para. 1). In accordance with the order made in
consequence, the Registrar received the applicant's memorial on 17
July 1990 and the Government's memorial on 31 July. In a letter
received on 31 August, the Secretary to the Commission informed the
Registrar that the Delegate would submit his observations at the
hearing.
6. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 29 August
1990 that the oral proceedings should open on 3 October (Rule 38).
7. On 31 August and 3 October the Commission produced the file on
the proceedings before it, as the Registrar had requested on the
President's instructions.
8. The hearing took place in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting beforehand.
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,
Mr G. Manzo, magistrato, on secondment to
the Ministry of Justice, Counsel;
(b) for the Commission
Mr F. Martinez, Delegate;
(c) for the applicant
Mr F. Albanese, avvocato, Counsel.
The Court heard addresses by the above-mentioned
representatives.
AS TO THE FACTS
9. Mr Franco Santilli lives at Tocco Casauria (Pescara), where in
1976 he set up a food-production business. On 24 July 1979 a
credit institution lent him 100,000,000 lire on the condition
subsequent that the sum would be used solely for equipping the
firm. On 11 September the amount was paid into the applicant's
account, but the bank used it to offset the debit balance.
10. On 27 September 1979 Mr Santilli sued his bank in the Pescara
District Court and simultaneously applied for an interim order; he
sought to be able to invest the amount he had borrowed and claimed
compensation for the damage suffered.
I. The proceedings at first instance
11. On 18 October 1979 the presiding judge of the District Court
refused the application for an interim order.
Between 12 December 1979 (when the defendant gave notice of
its intention to defend) and 20 June 1984 (when the court reserved
judgment) the judge responsible for preparing the case for trial
held eleven hearings. Five of these (26 March and 20 November 1980
and 18 March, 1 July and 29 October 1981) were taken up with
argument or the completion of preparatory formalities (filing of
documents, hearing of witnesses and dismissal of an application for
an expert opinion) and three others with hearing addresses
(on 20 January, 25 March and 23 June 1982). As for the final three
(on 9 and 23 March and 21 December 1983), no sooner had they begun
than they were adjourned, in particular because the judge
responsible for preparing the case was absent or had not been
replaced by his successor.
In the main action the District Court found against the
applicant in a judgment of 19 July 1984, which was filed in the
registry on 20 October.
II. The appeal proceedings
12. The applicant's trustee in bankruptcy (curatore fallimentare
- see paragraph 13 below) lodged an appeal on 7 December 1984, and
four hearings took place in the Court of Appeal of Aquila
(on 5 February, 7 May and 15 October 1985 and 15 April 1986). The
first of these was adjourned at the parties' request.
In a judgment dated 6 May 1986 and filed in the registry on
18 June 1986 the Court of Appeal upheld the impugned decision. The
trustee in bankruptcy did not appeal on points of law.
III. The applicant's bankruptcy
13. On 29 February 1980 Mr Santilli had applied for
court-supervised administration of his affairs (amministrazione
controllata) on grounds of the financial difficulties to which the
unavailability of the borrowed money had given rise. The Pescara
District Court had granted his application on 25 March 1980.
Five days later the credit institution invoked the clause in
the contract containing the condition subsequent (see paragraph 9
above) and demanded immediate repayment of the loan.
On 12 June 1982 the District Court granted the applicant a
judicially approved arrangement with his creditors for which he had
applied on 22 May. It adjudged him bankrupt in a judgment of
26 June 1984, which was filed in the registry on 16 July. Under
Italian legislation Mr Santilli lost, in particular, the right to
take legal proceedings in property matters, which right vested in
the trustee in bankruptcy appointed by the District Court.
PROCEEDINGS BEFORE THE COMMISSION
14. In his application of 4 March 1985 to the Commission
(no. 11634/85) Mr Santilli complained of the length of the civil
proceedings instituted by him and of the disregard of his right to
respect for his correspondence and of his entitlement to peaceful
enjoyment of his possessions; he relied on Articles 6 and 8 (art.
6, art. 8) of the Convention and on Article 1 of Protocol No. 1
(P1-1).
15. On 10 March 1989 the Commission declared the application
inadmissible as to the second complaint but admissible as regards
the other two. In its report of 6 November 1989 (made under
Article 31) (art. 31) it expressed the unanimous opinion that there
had been a breach of Article 6 para. 1 (art. 6-1) of the Convention
but not of Article 1 of Protocol No. 1 (P1-1). 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 194-D
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
16. At the hearing on 3 October 1990 the Government confirmed the
final submission in their memorial, in which they requested the
Court to hold "that there had been no violation of the Convention
or of Protocol No. 1 in the instant case".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 para. 1 (art. 6-1)
17. The applicant submitted that his civil action was not tried
within a "reasonable time" as required by Article 6 para. 1
(art. 6-1) of the Convention, which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal ..."
The Government rejected this submission but the Commission
accepted it.
18. The period to be considered began on 27 September 1979, when
the summons was served on the defendant. It ended on 18 June 1986,
when the Court of Appeal's judgment was filed.
19. The participants in the proceedings presented argument as to
the way in which the various criteria employed by the Court in this
context - such as the degree of complexity of the case, the conduct
of the applicant and that of the competent authorities - should
apply in the present case.
20. Under Article 6 para. 1 (art. 6-1) of the Convention everyone
has the right to a final decision, within a reasonable time, on
disputes (contestations) over his civil rights and obligations.
The Contracting States accordingly have the obligation to organise
their legal systems so as to allow the courts to comply with this
requirement (see, as the most recent authority, the Unión
Alimentaria Sanders SA judgment of 7 July 1989, Series A no. 157,
pp. 14-15, para. 38).
The Court points out that, under its case-law on the subject,
the reasonableness of the length of proceedings is to be assessed
in the light of the particular circumstances of the case. In this
instance the circumstances call for an overall assessment (see,
mutatis mutandis, the Obermeier judgment of 28 June 1990, Series A
no. 179, p. 23, para. 72).
The case was somewhat complex. Furthermore, one of the
adjournments was due to the parties. Between the hearings,
however, the trial court allowed periods to elapse that were too
long and was totally inactive for nearly two years (23 June 1982 -
20 June 1984). The Court accordingly cannot regard a lapse of time
of approximately six years and nine months as "reasonable" in the
instant case.
That being so, there has been a breach of Article 6 para. 1
(art. 6-1).
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
(P1-1)
21. The applicant claimed that the length of the proceedings in
question deprived him of the enjoyment of his property (in this
case a bank credit). He relied on Article 1 of Protocol No. 1
(P1-1), which provides:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles
of international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with
the general interest or to secure the payment of taxes or
other contributions or penalties."
Neither the Government nor the Commission shared this view.
22. In view of the circumstances of the case and the conclusion
reached in paragraph 20 above, the Court considers it unnecessary
to determine also the complaint based on Article 1 of
Protocol No. 1 (art. (P1-1).
III. APPLICATION OF ARTICLE 50 (art. 50)
23. 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
24. Mr Santilli sought compensation of 2,527,000,000 Italian lire
in respect of pecuniary damage and 7,500,000,000 lire in respect of
non-pecuniary damage. He cited his bankruptcy and his loss of
professional reputation.
25. In the Government's submission, there could be no question of
pecuniary damage as the applicant had lost his case in the national
proceedings. As to non-pecuniary damage, the mere finding of a
breach of Article 6 para. 1 (art. 6-1) would in itself provide
sufficient just satisfaction.
The Commission left the matter to the Court's discretion.
26. As regards pecuniary damage, the Court agrees with the
Government. But it considers that the applicant did sustain some
non-pecuniary damage and, making an assessment on an equitable
basis, it awards him 10,000,000 lire under this head.
B. Costs and expenses
27. The applicant claimed 6,488,625 lire in respect of fees and
expenses in the proceedings before the Court.
28. On the basis of the information in its possession, the
observations submitted and its own case-law on the subject, the
Court, making an assessment on an equitable basis, awards him
4,000,000 lire for the costs and expenses not covered by legal aid.
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. Holds that it is unnecessary to rule on the complaint based on
Article 1 of Protocol No. 1 (P1-1);
3. Holds that the respondent State is to pay to Mr Santilli
10,000,000 (ten million) Italian lire for non-pecuniary damage
and 4,000,000 (four million) lire for costs and expenses;
4. 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
19 February 1991.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy