In the case of Terranova v. Italy (1),
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 Rules of Court B (2), as a Chamber composed of the
following judges:
Mr R. Bernhardt, President,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr C. Russo,
Mr A. Spielmann,
Mr A.N. Loizou,
Sir John Freeland,
Mr J. Makarczyk,
Mr D. Gotchev,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 28 September and
21 November 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
1. The case is numbered 28/1995/534/620. 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.
2. Rules of Court B, which came into force on 2 October 1994, apply
to all cases concerning the States bound by Protocol No. 9 (P9).
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PROCEDURE
1. The case was referred to the Court by the Italian Government
("the Government") on 7 March 1995, 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. 17156/90) against the
Italian Republic lodged with the European Commission of Human Rights
("the Commission") under Article 25 (art. 25) by an Italian national,
Mr Giuseppe Terranova, on 11 June 1990. The applicant, who was
initially designated by the letters G.T., subsequently consented to the
disclosure of his identity.
The Government's application 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 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) of the Convention.
2. In response to the enquiry made in accordance with Rule 35
para. 3 (d) of Rules of Court B, the applicant stated that he did not
wish to take part in the proceedings.
3. On 5 May 1995 the President of the Court decided, under Rule 21
para. 7 and in the interests of the proper administration of justice,
that a single Chamber should be constituted to consider the instant
case and the case of Ciricosta and Viola v. Italy (1).
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1. Case no. 5/1995/511/594.
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4. The Chamber to be constituted for that purpose included ex
officio Mr C. Russo, the elected judge of Italian nationality
(Article 43 (art. 43) of the Convention), and Mr R. Bernhardt, the
Vice-President of the Court (Rule 21 para. 4 (b)). On the same day,
in the presence of the Registrar, Mr R. Ryssdal, the President of the
Court, drew by lot the names of the other seven members, namely
Mr F. Gölcüklü, Mr F. Matscher, Mr A. Spielmann, Mr A.N. Loizou,
Sir John Freeland, Mr J. Makarczyk and Mr D. Gotchev (Article 43 in
fine of the Convention and Rule 21 para. 5) (art. 43).
5. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the Government and
the Delegate of the Commission on the organisation of the proceedings
(Rules 39 para. 1 and 40). Pursuant to the order made in consequence,
the Registrar received the Government's memorial on 28 July 1995. The
Delegate of the Commission replied on 23 August 1995.
6. On 29 June 1995 the Chamber had decided to dispense with a
hearing in the case, having satisfied itself that the conditions for
this derogation from the usual procedure had been met (Rules 27 and
40).
7. On 19 July 1995 the Government filed their observations on the
claims for just satisfaction that the applicant had communicated to the
Registrar on 31 May 1995 (Article 50 (art. 50) of the Convention and
Rule 52 para. 1 read in conjunction with Rule 1 (i)).
8. On 21 July 1995 the Commission produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
AS TO THE FACTS
9. Mr Giuseppe Terranova is a pensioner living in Messina, where he
was formerly a municipal employee.
10. On 25 April 1985 he applied to the Court of Audit (Third Ordinary
Division) in Rome seeking judicial review of a Treasury order whereby
he had been granted an enhanced pension but was required to repay half
of a sum he had previously received as compensation for invalidity
occasioned during the performance of his official duties. The
application was registered on 3 May 1985. On 20 November 1985 the
applicant asked for a date to be fixed for the hearing.
On 24 January 1986 the Third Ordinary Division received the
applicant's administrative file from the Treasury, in accordance with
its request of 20 May 1985.
11. On 11 July 1986, in the course of proceedings concerning a
non-military pension, the Sicily Judicial Division of the Court of
Audit raised an objection of unconstitutionality concerning Article 3
of Legislative Decree no. 655 of 6 May 1948, which had set up Divisions
of the Court of Audit in Sicily.
On 25 February 1988 the Constitutional Court declared the above
provision unconstitutional, inasmuch as it did not give the Sicily
Judicial Division jurisdiction over, among other matters, disputes
between the administrative authorities and employees of the State or
the region resident in Sicily.
In pursuance of that judgment, the applicant's case file was sent
to the Sicily Judicial Division in Palermo on 17 October 1988.
12. On 26 October 1992 the President of the Division set the case
down for hearing on 2 March 1993. On that date the court ruled that
it lacked jurisdiction ratione materiae and declared the application
inadmissible. The judgment was deposited with the registry on
15 June 1993.
13. The applicant did not recommence the proceedings in the Regional
Administrative Court.
PROCEEDINGS BEFORE THE COMMISSION
14. Mr Terranova applied to the Commission on 11 June 1990. He
complained that his case had not been heard within a reasonable time
as required by Article 6 para. 1 (art. 6-1) of the Convention.
15. The Commission (First Chamber) declared the application
(no. 17156/90) admissible on 6 September 1994. In its report of
7 December 1994 (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 (1).
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1. Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 337-B 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. In their memorial the Government asked the Court to hold that
there had been no violation of Article 6 para. 1 (art. 6-1) of the
Convention.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
17. The applicant complained of the length of the proceedings brought
by him in the Court of Audit. He alleged a violation of 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 ..."
18. The Government contested this allegation, whereas the Commission
upheld it.
19. The period to be taken into consideration began on 3 May 1985,
when Mr Terranova's application was registered by the Court of Audit
registry, and ended on 15 June 1993, when the judgment dismissing the
application was deposited in the registry (see, as the most recent
authority, the Paccione v. Italy judgment of 27 April 1995, Series A
no. 315-A, p. 8, para. 17).
Contrary to the Government's submission, the period of
approximately twenty months taken by the Constitutional Court to rule
on an objection of unconstitutionality should not be deducted.
Although that court's decision of 25 February 1988 (see paragraph 11
above) affected the proceedings, inasmuch as the file was transferred
to the Judicial Division of the Court of Audit in Palermo, which had
acquired jurisdiction (see paragraph 11 above), the proceedings in the
Court of Audit in Rome were never stayed during the period referred to
(see, mutatis mutandis, the Giancarlo Lombardo v. Italy judgment of
26 November 1992, Series A no. 249-C, p. 43, para. 18). The period to
be examined thus lasted just over eight years and one month.
20. The reasonableness of the length of proceedings must be assessed
in the light of the particular circumstances of the case and having
regard to the criteria laid down in the Court's case-law, in particular
the complexity of the case and the conduct of the applicant and of the
relevant authorities (see, among other authorities, the Vernillo v.
France judgment of 20 February 1991, Series A no. 198, p. 12,
para. 30).
21. The Government submitted that the facts of the case disproved any
assertion that the relevant authorities were responsible for the
allegedly excessive length of the proceedings. By "decentralising" the
Court of Audit, as a result of the Constitutional Court's judgment,
they had acted in accordance with the Court's case-law, in particular
the Buchholz v. Germany judgment of 6 May 1981 (Series A no. 42).
Lastly, it had to be taken into account that the case was heard
by three separate courts, albeit at different levels and with different
jurisdictions, and that the applicant did not ask for a date to be
fixed for the hearing until 20 November 1985.
22. Like the Delegate of the Commission, the Court notes that the
Third Ordinary Division of the Court of Audit in Rome, in which the
case was brought on 3 May 1985, waited until 17 October 1988 before
sending the file to the Judicial Division of the same court in Palermo
(see paragraph 11 above) and that the Palermo Judicial Division waited
until 26 October 1992 before fixing the date of the hearing. Moreover,
there was a delay of more than three months before the inadmissibility
decision was made public by being deposited in the registry.
In addition, the Court notes that, contrary to the Government's
assertion, only two divisions of the same court - albeit sitting in two
different cities - had to deal with the action brought by Mr Terranova
against the Treasury.
With regard to the applicant's conduct, the Court considers that
even if he had asked before 20 November 1985 for a date to be fixed for
the hearing, the Court of Audit would not have been able to accede to
this request, as it had not received his administrative file by then.
23. In conclusion, a period of approximately eight years and one
month cannot be considered reasonable, regard being had to the fact
that the case was not complex and to what was at stake for the
applicant, namely repayment of half of the sum received in
compensation. There has therefore been a breach of Article 6 para. 1
(art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
24. Article 50 (art. 50) of the Convention provides:
"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."
25. Mr Terranova claimed 50,000,000 Italian lire (ITL), a sum which
included the retirement bonus, with an adjustment to account for
inflation and interest at the statutory rate, compensation for
non-pecuniary damage and reimbursement of his expenditure on postage.
26. Like the Delegate of the Commission and the Government, the Court
considers that the applicant has not proved that he sustained any
pecuniary damage at all.
Like the Delegate, the Court considers that the applicant did
sustain non-pecuniary damage. However, the finding that there has been
a breach of the Convention is not in itself sufficient to make good
that damage, as the Government submitted. The Court accordingly
decides, on an equitable basis, to award the applicant ITL 20,000,000
under this head and to cover his costs.
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 the respondent State is to pay the applicant, within
three months, 20,000,000 (twenty million) Italian lire in respect
of non-pecuniary damage and costs;
3. Dismisses the remainder of the claims for just satisfaction.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 4 December 1995.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar
Full & Egal Universal Law Academy