In the case of Serrentino 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 51/1991/303/374. 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 19 April 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. 12295/86) against the Italian Republic lodged with
the Commission under Article 25 (art. 25) by an Italian national,
Mr Ignazio Serrentino, on 22 July 1986.
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 he
wished to take part in the proceedings and designated the lawyer who
would represent him (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, Pierazzini, Tusa, Cooperativa Parco
Cuma, 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 44/1991/296/367;
50/1991/302/373; 58/1991/310/381; 59/1991/311/382; 61/1991/313/384
_______________
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 23 April 1991, 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 applicant's memorial on
21 June 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 decision of the President - who had
given the applicant leave to use the Italian language
(Rule 27 para. 3) -, 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 M. Miccoli, avvocato, Counsel.
The Court heard addresses by Mr Raimondi and Mrs Passannanti
for the Government, by Mr Frowein for the Commission and by
Mr Miccoli for the applicant, as well as their answers to its
question.
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. Mr Ignazio Serrentino is an Italian national and resides at
Reggio Calabria. He is unemployed. The facts established by the
Commission pursuant to Article 31 para. 1 (art. 31-1) of the Convention
are as follows (paragraphs 17-26 of its report):
"17. On 10 October 1983 the applicant was involved in a
road accident and seriously injured.
18. By summons served on 11 September 1984, the
applicant took proceedings for damages before the Reggio
Calabria District Court against the owner and the driver of
the car which had knocked him down, and also against the X
insurance company.
19. The investigation opened at the hearing of
17 December 1984, followed by the hearing of
18 February 1985. On that date the parties requested
certain investigative steps, on which the investigating
judge ruled by order of 7 March 1985. The next hearing,
fixed for 3 June 1985, did not take place until
18 November 1985 when the investigating judge instructed an
expert to assess within sixty days the damage sustained by the
applicant.
20. The medical opinion was lodged with the registry on
20 January 1986. Its findings were that the accident had
caused the applicant 507 days' total incapacity for work and
295 days' partial incapacity, as well as permanently
impairing his fitness for work by 25%.
21. The hearings of 17 March and 12 May 1986 were
adjourned at the parties' request.
22. At the hearing of 7 July 1986, the parties made
their final submissions and the investigating judge referred
the case to the competent chamber of the court, fixing the
hearing for 25 November 1988. On 8 July 1986 the applicant,
pleading his insecure financial circumstances, requested an
earlier hearing date.
23. In accordance with this request, the hearing before
the court chamber took place on 12 December 1986. On
30 January 1987 the court declared the defendants jointly
and severally liable to pay the applicant damages of
64,467,590 Italian lire plus the statutory interest which
had accrued since 10 October 1983, and awarded costs against
them. The text of the judgment was lodged with the registry
on 27 March 1987.
24. On 29 May 1987 the X insurance company appealed
against the judgment. On 8 June 1987 the applicant also
filed an appeal, claiming higher compensation. The first
hearing before the investigating judge for the appeal
procedure took place on 22 October 1987. Four more hearings
took place on 14 January 1988 (when the parties requested an
adjournment in order to file their final submissions),
25 February 1988, 14 April 1988 (adjourned at the appellant
company's request, the applicant's counsel not being
present) and 26 May 1988. On that date, the case was
referred to the competent chamber of the Reggio Calabria
Court of Appeal.
25. At the hearing on 1 December 1988, the parties
requested an adjournment. The next hearing took place on
13 April 1989. By order of 20 April 1989, the Court of
Appeal found that notice of the appeal by the X insurance
company had not been given to the owner of the vehicle as a
party whose participation was required to settle the dispute
(litisconsorte necessario). The case was therefore referred
back to the investigating judge for the appeal procedure.
26. Four hearings before the said investigating judge
took place on 12 October 1989, 25 January 1990,
22 March 1990 and 28 June 1990, on which date the parties made
their final submissions. On 15 November 1990 the Appeal Court,
basing its decision on criteria differing to some extent
from those adopted by the lower court, assessed the damage
sustained by the applicant at 159,000,000 lire. The text of
the decision was lodged with the registry on 6 December 1990.
27. ... ."
10. According to the information supplied to the European Court
by the applicant, one of the defendants has appealed to the Court of
Cassation and the date of the hearing has not yet been fixed.
PROCEEDINGS BEFORE THE COMMISSION
11. Mr Serrentino lodged his application with the Commission on
22 July 1986. He complained of the length of the civil proceedings
brought by him and relied on Article 6 para. 1 (art. 6-1) of the
Convention.
12. On 11 May 1990 the Commission declared the application
(no. 12295/86) admissible. In its report of 6 March 1991
(Article 31) (art. 31), it expressed the opinion by nine votes to
one that there had been a violation of Article 6 para. 1 (art. 6-1).
The full text of the Commission's opinion and of the dissenting
opinion contained in the report 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-F
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 his 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
11 September 1984 when the proceedings were instituted against the
person responsible for the accident and his insurance company. It
has not yet ended as the Court of Cassation 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. He had
failed to display the diligence required in a civil trial.
18. In the Court's view the case is not a complex one. Despite
that, as the Commission and the applicant rightly pointed out, there
have been several periods of inactivity in the proceedings to date:
no investigative measures were taken for more than eight months
(7 March - 18 November 1985); more than five months elapsed before
the first hearing in the competent chamber of the Reggio Calabria
District Court (7 July - 12 December 1986); and the text of the
judgment was not filed with the registry for nearly two months
(30 January - 27 March 1987).
It is true that the parties were themselves responsible, at
first instance and then on appeal, for several delays resulting in a
total delay of about eleven months (see paragraph 9 above, nos. 21,
24 and 25), but at the applicant's request the District Court
brought forward the date of one hearing from 25 November 1988 to
12 December 1986, nearly two years (ibid., no. 23).
It should be noted finally that it took the Reggio Calabria
Court of Appeal almost two years to find that the appeal filed by
the X insurance company had not been notified to the owner of the
car in question (29 May 1987 - 20 April 1989). Yet under the
Italian Code of Civil Procedure the judicial authorities are
responsible for ensuring that such steps are properly carried out.
19. In these circumstances and in view of what was at stake for
the applicant, the Court cannot regard as "reasonable" in this
instance a lapse of time which already amounts to more than seven
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. Mr Serrentino claimed in the first place one thousand
million Italian lire for damage.
22. There is no evidence that the violation found caused the
applicant pecuniary damage. On the other hand, he suffered non-
pecuniary damage for which the Court, making an assessment on an
equitable basis, awards him 10,000,000 lire.
B. Costs and expenses
23. The applicant also sought 4,710,000 lire for the costs which
he 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 him the sum claimed in its
entirety.
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, 10,000,000 (ten million) Italian lire
for non-pecuniary damage and 4,710,000 (four million seven
hundred and ten 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