In the case of Simonetti 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 Thór Vilhjálmsson,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr C. Russo,
Mr A. Spielmann,
Mr N. Valticos,
Mr S.K. Martens,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 28 October and
27 November 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 57/1991/309/380. 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.
*** 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 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 of
the Convention (art. 32-1, art. 47). It originated in an
application (no. 13103/87) against the Italian Republic lodged with
the Commission under Article 25 (art. 25) by an Italian national,
Mr Spartaco Simonetti, on 16 July 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. On 23 April 1991 the President of the Court decided that,
pursuant to Rule 21 para. 6 of the Rules of Court and in the
interests of the proper administration of justice, this case and the
cases of Gilberti, Nonnis, Trotto, Nibbio, Borgese, Biondi,
Macaluso, Monaco, Cattivera, Seri, Manunza, Gori, Casadio, Testa,
Lestini, Covitti, Zonetti and Dal Sasso1 should be heard by the same
Chamber.
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1 Gilberti (19/1991/271/342); Nonnis (23/1991/275/346);
Trotto (26/1991/278/349); Nibbio (28/1991/280/351);
Borgese (29/1991/281/352); Biondi (30/1991/282/353);
Monaco (32/1991/284/355); Cattivera (34/1991/286/357);
Seri (35/1991/287/358); Manunza (37/1991/289/360);
Gori (45/1991/297/368); Casadio (52/1991/304/375);
Testa (53/1991/305/376); Lestini (54/1991/306/377);
Covitti (55/1991/307/378); Zonetti (56/1991/308/379);
Simonetti (57/1991/309/380); Dal Sasso (60/1991/312/383)
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3. 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 Thór Vilhjálmsson,
Mr F. Matscher, Mr J. Pinheiro Farinha, Mr L.-E. Pettiti,
Mr B. Walsh, Mr N. Valticos and Mr S.K. Martens (Article 43 in fine
of the Convention and Rule 21 para. 4) (art. 43).
Subsequently, Mr A. Spielmann, substitute judge, replaced
Mr Pinheiro Farinha, who had resigned and whose successor at the
Court had taken up his duties before the deliberations held on
28 October (Rules 2 para. 3 and 22 para. 1).
4. 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") and the Delegate
of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). In accordance with the order made in
consequence, the Registrar received the Government's memorial on
16 July 1991. By a letter received on 22 September, the Secretary
to the Commission informed the Registrar that the Delegate would
submit his observations at the hearing.
5. On 22 April the Registrar had sent to the applicant the
enquiry provided for in Rule 33 para. 3 (d). After several
telephone conversations, Mr Simonetti's lawyer replied in writing,
on 7 October, that his client had not manifested an interest in the
proceedings pending before the Court.
Accordingly, the President instructed the Registrar to obtain the
opinion of the Government and the Delegate of the Commission
regarding the possibility of striking the case out of the list
(Rule 49 para. 2). Their observations reached the registry
on 16 and 17 October.
6. On 24 October the Chamber decided to dispense with the
hearing fixed for 28 October, having found that the conditions for
such derogation from the usual procedure were satisfied (Rules 26
and 38).
AS TO THE FACTS
7. Mr Spartaco Simonetti is an Italian national and resides at
Velletri (Rome). 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 17-21 of its report):
"17. On 21 January 1984 the applicant took proceedings before the
Rome magistrate's court ('pretore') against the 'Istituto Nazionale
della Previdenza Sociale'(INPS) in order to establish his
entitlement to a disability pension.
18. The investigation opened at the hearing of 6 June 1984, when
the magistrate's court ordered a medical opinion and the expert
appointed was sworn in. The expert was given 20 days as from
15 June 1984 to lodge the opinion. The next hearing was to have
been held on 3 October 1984. However, the opinion was not lodged
with the registry until 1 October 1984. The court therefore ordered
the adjournment of the hearing to 2 May 1985.
19. On that date, as the defendant was absent, the applicant
requested an adjournment in order to consider the expert evidence.
The magistrate's court adjourned the investigation of the case on
the ground that the parties had not been duly notified of the
hearing date. The next hearing took place on 5 June 1985, when the
magistrate's court dismissed the applicant's claim. The text of the
decision was lodged with the registry on 11 June 1985.
20. On 3 June 1986 the applicant lodged an appeal against the
decision, and on 5 June 1986 the presiding judge of the Rome
District Court fixed the hearing before the court's competent
chamber for 4 May 1988. At the applicant's request, the hearing was
adjourned to 4 November 1988, on which date the parties failed to
appear. The case was therefore adjourned to 8 March 1989.
21. A hearing took place on 26 April 1989, when the court
deliberated. At the end of the hearing the appeal was dismissed.
The text of the judgment was lodged with the registry on
20 April 1990.
22. ... ."
8. According to the information supplied by the Government to
the European Court, the District Court's decision has not been the
subject of an appeal to the Court of Cassation.
PROCEEDINGS BEFORE THE COMMISSION
9. In his application of 16 July 1987 to the Commission
(no. 13103/87), Mr Simonetti complained of the length of the civil
proceedings brought by him; he relied on Article 6 para. 1
(art. 6-1) of the Convention.
10. On 11 May 1990 the Commission declared the application
admissible. In its report of 5 March 1991 (Article 31) (art. 31),
it expressed the opinion by ten 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 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 223-M
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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AS TO THE LAW
11. By a letter of 7 October 1991 Mr Angelozzi, counsel for
Mr Simonetti before the Commission, informed the Court that, when he
had contacted his client in good time with a view to his
participation in the proceedings, the latter had shown no interest.
He confirmed this at the hearing on 28 October in the Nibbio,
Borgese, Biondi, Monaco and Lestini v. Italy cases.
The Government were consulted on whether the case should be struck
out of the list pursuant to Rule 49 para. 2 of the Rules of Court
and answered in the affirmative, in view of the applicant's
"expressed intention of withdrawing".
The Delegate of the Commission considered that the information
received from Mr Angelozzi gave insufficient details concerning the
real intentions of the applicant: it was not possible to determine
therefrom whether there was indeed a "fact of a kind to provide a
solution of the matter" (Rule 49 para. 2). Furthermore, the
Delegate questioned whether it was possible to regard Mr Simonetti,
despite his "apparent silence", as having lost "any legal interest
in having the violation of the Convention ... established". In any
event "the absence of a clear and unequivocal manifestation of
intention" precluded, in his view, saying that there had been a
withdrawal, "even an implied one". Moreover the present case was
one of a number of cases which "should be placed in a context that
goes well beyond the interest of each applicant".
12. According to Rule 49 para. 2 of the Rules of Court:
"When the Chamber is informed of a friendly settlement, arrangement
or other fact of a kind to provide a solution of the matter, it may,
after consulting, if necessary, the Parties, the Delegates of the
Commission and the applicant, strike the case out of the list."
Notwithstanding several reminders from the registry over a period of
five and a half months, and therefore well in excess of the usual
period of two weeks prescribed in Rule 33 para. 3 (d), the applicant
showed no interest in the proceedings before the Court. In formal
terms there has not been a withdrawal for the purposes of
paragraph 1 of Rule 49 inasmuch as the applicant does not have the
status of a party to the proceedings, since Protocol No. 9 (P9),
which gives the individual applicant the right, subject to certain
conditions, to bring his case before the Court, has not yet come
into force (see the Owners' Services Ltd v. Italy judgment of
28 June 1991, Series A no. 208-A, p. 8, para. 10). The Court
considers nevertheless that there has been in this case an implied
withdrawal which constitutes a "fact of a kind to provide a solution
of the matter". It may indeed be questioned whether there can still
be said to be any dispute.
In addition, the Court discerns no reason of ordre public (public
policy) for continuing the proceedings (Rule 49 para. 4). In this
connection it points out that in a number of previous cases it had
occasion to review the "reasonableness" of the length of civil
proceedings in various Contracting States, including Italy (see,
with regard to that country, the Pretto and Others judgment of
8 December 1983, the Capuano judgment of 25 June 1987, the Brigandì,
Zanghì and Santilli judgments of 19 February 1991 and the
Pugliese (II), Caleffi and Vocaturo judgments of 24 May 1991,
Series A nos. 71, 119, 194-B-C-D and 206-A-B-C). In so doing it
specified the nature and the extent of the obligations arising in
this context from Article 6 para. 1 (art. 6-1) of the Convention.
Furthermore, a large number of cases which raise similar questions
and in which it is shortly to give judgment are still pending before
it. Finally, according to information provided by the Delegate of
the Commission, 410 applications concerning compliance with the
"reasonable time" requirement, in Italy, are pending before the
Commission.
Accordingly, the case should be struck out of the list. The Court
nevertheless reserves the right to restore the case to the list if a
new situation arises capable of justifying such a course.
FOR THESE REASONS AND WITH THIS RESERVATION, THE COURT UNANIMOUSLY
Decides to strike the case out of the list.
Done in English and in French, and notified in writing under
Rule 55 para. 2, second sub-paragraph, of the Rules of Court on
3 December 1991.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy