In the case of Scopelliti 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 R. Bernhardt,
Mr C. Russo,
Mr I. Foighel,
Mr F. Bigi,
Mr A.B. Baka,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr J. Makarczyk,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 24 May and 27 October 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
* The case is numbered 41/1992/386/464. 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 by the Italian Government
("the Government") on 28 October 1992, 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. 15511/89) against
the Italian Republic lodged with the European Commission of Human
Rights ("the Commission") under Article 25 (art. 25) by an Italian
national, Mrs Antonia Scopelliti, on 6 April 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).
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 was to represent her (Rule 30). The President of the Court gave
her lawyer leave 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 25 November 1992, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mr N. Valticos, Mr I. Foighel, Mr F. Bigi,
Mr A.B. Baka, Mr M.A. Lopes Rocha, Mr L. Wildhaber and Mr J. Makarczyk
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
Subsequently, Mr R. Bernhardt, substitute judge, replaced Mr Valticos,
who was unable to take part in the further consideration of the case
(Rule 22 paras. 1 and 2 and Rule 24 para. 1).
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
applicant's memorial on 10 February 1993 and a statement of her costs
and expenses on 4 March. The Government filed their memorial on
8 March. The Delegate of the Commission did not submit written
observations.
5. On 1 February 1993 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 May 1993. 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 of the
Ministry of Foreign Affairs, Co-Agent,
Mr L. Salazar, magistrato, on secondment
to the Ministry of Justice, Counsel;
(b) for the Commission
Mr F. Ermacora, Delegate;
(c) for the applicant
Mr M. Miccoli, avvocato, Counsel.
The Court heard addresses by the above-mentioned
representatives, as well as their answers to its questions.
The representatives of the Government and of the applicant
produced various documents at the conclusion of the hearing.
AS TO THE FACTS
7. Mrs Antonia Scopelliti lives in Reggio di Calabria.
8. On 10 December 1980 she instituted proceedings against the
A.N.A.S. (Azienda Nazionale Autonoma Strade - National Highways
Corporation) and the Ministry of Public Works in the Catanzaro District
Court. She sought compensation for damage deriving from the
unauthorised occupation by the A.N.A.S. of approximately 1,000 m2 of
land belonging to her, which had been used to improve a trunk road.
9. The case was entered on the list on 15 December 1980 and a
first hearing was held on 27 January 1981. On that date the
investigating judge ordered an expert report and set the following
hearing down for 17 February 1981. This hearing had to be postponed
- on account of the failure to notify the order to the expert; the
hearing scheduled for 10 March 1981 was also postponed.
10. On 24 March 1981 the expert took the oath and was given ninety
days within which to file his report. He did not comply with this
time-limit, with the result that the proceedings were adjourned on a
number of occasions (7 July 1981, 12 January, 9 March, 20 April, 11 May
and 13 July 1982).
11. The expert submitted his report on a date which has not been
specified, prior to the hearing on 14 December 1982, which was
adjourned, as were those set down for 15 March and 22 April 1983.
12. The case was referred to the competent chamber of the District
Court on 3 May 1983. The A.N.A.S., the defendant, filed its final
submissions on 10 November 1983.
Subsequently the hearings set down for 23 November 1983,
27 June and 7 November 1984, 27 March and 27 November 1985,
26 February, 16 April, 2 July and 3 December 1986 were all adjourned
at the joint request of the parties. According to the applicant, these
delays were the result of the continual changes in the composition of
the competent chamber, but the Government deny this.
13. In the meantime she had sent two letters requesting that her
case be heard more rapidly, one on 24 September 1984 to the President
of the Catanzaro District Court and the other on 22 January 1986 to the
Principal State Counsel at the Catanzaro Court of Appeal.
14. On 6 and 16 February 1987 the applicant filed her final
submissions. On 18 February judgment was reserved.
On 5 October 1987 the Catanzaro District Court gave judgment
allowing the applicant's claims and ordering the A.N.A.S. to pay her
212,517,000 lire. This sum represented 17,460,000 lire for the market
value of the land in question, 100,605,000 lire for the damage caused
to the land adjoining the road and 94,452,000 lire for the prejudice
deriving from the unauthorised occupation and the unavailability of the
property. In addition, she was awarded a total of 5,085,000 lire for
her costs and lawyers' fees. The District Court's decision, which was
lodged with the registry on 14 January 1988, became final on
1 March 1989.
PROCEEDINGS BEFORE THE COMMISSION
15. The applicant lodged her application with the Commission on
6 April 1989. She complained of the length of the civil proceedings
which she had instituted in the Catanzaro District Court and relied on
Article 6 para. 1 (art. 6-1) of the Convention.
16. The Commission declared the application (no. 15511/89)
admissible on 1 April 1991. In its report of 1 July 1992 (made under
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 278 of Series A
of the Publications of the Court), but a copy of the Commission's
report is available from the registry.
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AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
17. Mrs Scopelliti claimed that her case had not been heard within
a "reasonable time" as required under Article 6 para. 1 (art. 6-1) of
the Convention, which is worded as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ..."
The Government denied this allegation, while the Commission
accepted it.
18. The period to be taken into consideration began on
10 December 1980, when the proceedings were instituted against the
A.N.A.S. in the Catanzaro District Court, and ended on 1 March 1989,
the date on which the District Court's judgment became final (see
paragraphs 8 and 14 above). It therefore lasted a little under eight
years and three months.
19. 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.
20. The applicant, together with the Commission, denied that the
case had been complex and considered that the adjournments had been due
to the continual changes in the composition of the relevant chamber of
the District Court.
21. The Government invoked the complexity of the expert report,
which had justified its belated submission; they also cited the conduct
of the parties, who had requested a number of adjournments throughout
the period from 23 November 1983 to 18 February 1987 (see paragraphs
12 and 14 above). They pointed out further that neither of the parties
had sought to have the expert replaced.
22. Three periods may be distinguished. In the first place the
investigation of the case took over two years and three months
(27 January 1981 - 3 May 1983); this period was mainly taken up with
waiting for the expert report. More than three years and two months
(23 November 1983 - 18 February 1987) then elapsed before judgment was
reserved in the case. Lastly, the judgment, which was lodged with the
registry on 14 January 1988, became final thirteen months and fifteen
days later, on 1 March 1989 (see paragraph 14 above).
The respondent State cannot be held responsible for that last
delay, since the parties could have shortened it by notifying the
decision to each other (Articles 325, 326 and 327 of the Code of Civil
Procedure).
23. As regards the first period, the Court accepts that the
drawing-up of the expert report gave rise to some difficulties.
However, it finds it hard to see why it should have been necessary to
wait - at the very least - almost sixteen months for the report (see
paragraphs 10 and 11 above). The Court observes that the expert did
not seek an extension of the ninety days accorded to him, a time-limit
which he had, moreover, himself proposed, and did not appear at the
hearing. In addition, it takes the view, contrary to the opinion put
forward by the Government, that Mrs Scopelliti was under no obligation
to request the investigating judge to replace the expert. In any case
such a step would have entailed further delay and the decision fell to
the relevant judge, who could take it of his own motion in accordance
with Article 196 of the Code of Civil Procedure (see the Capuano v.
Italy judgment of 25 June 1987, Series A no. 119, pp. 13-14, para. 31).
Finally, the Court points out that the expert was working in the
context of judicial proceedings, supervised by a judge, who remained
responsible for the preparation and the speedy conduct of the trial
(see, as the most recent authority, the Billi v. Italy judgment of
26 February 1993, Series A no. 257-G, p. 89, para. 19).
24. As far as the second part of the proceedings is concerned, it
may be seen from the documents in the file, and in particular the
records of the hearings, that the adjournments were requested jointly
by the parties. At the time Mrs Scopelliti did not challenge the
validity of the records. Nevertheless the fact remains that
considerable periods of time elapsed between the majority of the
adjournments (see paragraph 12 above).
25. The Court reiterates that in Italy civil proceedings are
subject to the "principio dispositivo", according to which it is for
the parties to take the initiative with regard to the progress of the
proceedings. However, that principle does not dispense the courts from
ensuring compliance with the requirements of Article 6 (art. 6) as
regards reasonable time (see the Guincho v. Portugal judgment of
10 July 1984, Series A no. 81, p. 14, para. 32, and the Capuano
judgment, cited above, Series A no. 119, p. 11, para. 25). In any
event, Article 175 of the Code of Civil Procedure provides that the
judge responsible for preparing the case for trial "shall take all
possible steps to ensure that the proceedings are conducted with the
utmost speed and fairness" (see the Capuano judgment, cited above,
ibid.).
26. If the proceedings are considered as a whole, the time which
elapsed between 10 December 1980 and 14 January 1988 cannot be regarded
as "reasonable". There has therefore been a violation of
Article 6 para. 1 (art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
27. 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
28. Mrs Scopelliti claimed in the first place 50,000,000 Italian
lire for pecuniary damage and 30,000,000 lire for non-pecuniary damage.
She alleged that the unlawful occupation of her property had
caused her damage deriving, on the one hand, from the fact that her
land had not been at her disposal and, on the other, from the costs and
expenses incurred throughout the domestic proceedings.
29. In the Government's contention, the pecuniary damage sustained
was compensated by the sums awarded to the applicant by the Catanzaro
District Court. As to any non-pecuniary damage, a finding of a
violation would in itself constitute sufficient just satisfaction for
the purposes of Article 50 (art. 50).
30. The Delegate of the Commission did not express a view.
31. In the Court's opinion, there is no evidence of any remaining
pecuniary damage. The applicant may, however, have suffered
non-pecuniary damage, but in the circumstances of the case the finding of
a violation of Article 6 para. 1 (art. 6-1) constitutes adequate
satisfaction in this respect.
B. Costs and expenses
32. Mrs Scopelliti sought in addition 11,546,310 lire for costs
and expenses referable to the proceedings before the Convention
institutions.
The Government and the Delegate of the Commission did not
submit observations on this matter.
33. Having regard to the criteria which it applies in this field,
the Court allows the applicant's claim.
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 finding of this violation constitutes
sufficient just satisfaction for any non-pecuniary damage
sustained;
3. Holds that the respondent State is to pay to the applicant,
within three months, 11,546,310 (eleven million five hundred
and forty-six thousand three hundred and ten) lire for costs
and expenses;
4. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 23 November 1993.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy