In the case of Torri 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. Ryssdal, President,
Mr R. Macdonald,
Mr C. Russo,
Mr J. De Meyer,
Mrs E. Palm,
Mr M.A. Lopes Rocha,
Mr D. Gotchev,
Mr B. Repik,
Mr U. Lohmus,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 22 February and 31 May 1997,
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 66/1996/685/875. 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).
________________
PROCEDURE
1. The case was referred to the Court by the Italian Government
("the Government") on 7 May 1996, 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. 26433/95) against the
Italian Republic lodged with the European Commission of Human Rights
("the Commission") under Article 25 (art. 25) by an Italian national,
Mr Angelo Torri, on 8 September 1993.
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 of the Convention (art. 6-1).
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. 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. 4 (b)). On 10 June 1996, in the presence of the Registrar, the
President drew by lot the names of the other seven members, namely
Mr R. Macdonald, Mr J. De Meyer, Mrs E. Palm, Mr M.A. Lopes Rocha,
Mr D. Gotchev, Mr B. Repik and Mr U. Lohmus (Article 43 in fine of the
Convention and Rule 21 para. 5) (art. 43).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal, 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 applicant's claims for just satisfaction on
4 October 1996 and the Government's memorial on 16 December 1996.
5. On 13 December 1996 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
19 February 1997. 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,
Mrs M.T. Saragnano, magistrato, on secondment
to the Ministry of Justice, Counsel;
(b) for the Commission
Mr C.L. Rozakis, Delegate.
The Court heard addresses by those appearing before it.
At the hearing the Government filed a number of documents.
AS TO THE FACTS
A. The criminal trial
7. On 17 November 1978 the applicant's son died as a result of a
road accident. On 9 July 1979 the applicant made a civil party
application seeking leave to join criminal proceedings that had been
brought in the Rome District Court (Criminal Division) against the
person responsible for the accident in order to secure his conviction
and obtain damages.
8. In a judgment of 17 November 1982 that was deposited with the
registry on 26 November 1982 the accused was sentenced to four months'
imprisonment and ordered to pay the applicant damages. In its decision
the court stated that the quantum would have to be determined by
further proceedings and awarded Mr Torri an interim payment of
four million Italian lire.
On 22 March 1985 this sentence was upheld by the
Rome Court of Appeal. In a judgment of 4 April 1986, deposited with
the registry on 27 September 1986, the Court of Cassation dismissed an
appeal on points of law lodged by the convicted defendant.
B. The civil proceedings
9. On 29 March 1991 the applicant brought proceedings against the
convicted defendant and his insurance company in the
Rome District Court (Civil Division) seeking compensation for pecuniary
and non-pecuniary damage.
10. The preparation of the case for trial began on 29 May 1991 and
ended, three hearings later, on 3 March 1993, when the parties filed
their final pleadings. The hearing for oral argument before the
relevant division was set down for 11 January 1995.
11. In a judgment deposited with the registry on 3 June 1995 the
District Court allowed the applicant's claim.
12. On a date that has not been specified the insurance company
appealed against the above decision to the Rome Court of Appeal. On
7 July 1996 the case was adjourned until June 1997.
PROCEEDINGS BEFORE THE COMMISSION
13. Mr Torri applied to the Commission on 8 September 1993. He
complained of the length of criminal proceedings which he had joined
as a civil party followed by proceedings for damages, and relied on
Article 6 para. 1 of the Convention (art. 6-1).
14. The Commission (First Chamber) declared the application
(no. 26433/95) admissible on 24 October 1995. In its report of
23 January 1996 (Article 31) (art. 31) it expressed the unanimous
opinion that there had been a violation of Article 6 (art. 6). The
full text of the Commission's opinion is reproduced as an annex to this
judgment (1).
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Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1997-IV), 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
15. The Government asked the Court, as their principal submission,
to declare the application inadmissible in so far as it concerned the
criminal proceedings. In the alternative, they asked the Court to hold
that there had been no breach of Article 6 para. 1 of the Convention
(art. 6-1).
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION
(art. 6-1)
16. Mr Torri complained of the overall length of two consecutive sets
of proceedings, namely criminal proceedings which he had joined as a
civil party and proceedings for damages he had brought himself. He
relied on Article 6 para. 1 of the Convention (art. 6-1), which
provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal ..."
A. The Government's preliminary objection
17. As they had done before the Commission, the Government objected
that the application was out of time in so far as it concerned the
length of the first set of proceedings. The Court of Cassation's
judgment of 4 April 1986 (see paragraph 8 above) constituted the final
decision within the meaning of Article 26 in fine of the Convention
(art. 26). The proceedings for damages could not therefore be regarded
as a second stage of the proceedings in issue because the
six-month time-limit laid down in Article 26 (art. 26) in fine had
begun to run when the judgment in question was deposited with the
registry, on 27 September 1986, and the applicant had not observed that
time-limit as he had lodged his application on 8 September 1993.
18. The Commission took the view that in order to assess the
"reasonableness" of the time taken to hear the case the two sets of
proceedings had to be regarded as one, with the second set of
proceedings being treated as a prolongation of the first for the
purpose of determining the applicant's civil right.
19. The Court reiterates in the first place that if the national law
of a State makes provision for proceedings consisting of two stages -
the first where the court rules on, inter alia, the existence of an
entitlement to damages and the second when it fixes the amount - it is
reasonable to consider that, for the purposes of Article 6 para. 1 of
the Convention (art. 6-1), a civil right is not "determined" until the
amount has been decided. The determination of a right entails deciding
not only on the existence of that right but also on its scope or the
manner in which it may be exercised (see, among other authorities,
mutatis mutandis, the Silva Pontes v. Portugal judgment of
23 March 1994, Series A no. 286-A, p. 13, para. 30), which obviously
includes the assessment of damages.
20. In the present case the Rome District Court, when sentencing the
defendant in its judgment of 17 November 1982, stated that the quantum
of the damages to be paid to Mr Torri would have to be determined by
further proceedings (see paragraph 8 above), which obliged him to
institute civil proceedings for that purpose.
According to the information supplied to the Court by the
applicant, on 7 July 1996 the Rome Court of Appeal adjourned the case
until June 1997 (see paragraph 12 above).
When the Rome District Court decided on 3 March 1993 to set down
the hearing for oral argument for 11 January 1995 - more than one year
and ten months after the filing of final pleadings (see paragraph 10
above) - Mr Torri referred his case, on 8 September 1993, to the
Commission.
21. The Court considers that the action for damages is closely linked
to the criminal proceedings which the applicant joined as a
civil party. It emphasises that at the date of adoption of the
present judgment it has received no information about adoption of the
final domestic decision for the purposes of Article 26 in fine of the
Convention (art. 26).
The objection must accordingly be dismissed.
B. Merits of the complaint
22. It remains to be ascertained whether a reasonable time was
exceeded. The Commission answered this question in the affirmative,
the Government in the negative.
23. The Court observes that the period to be taken into consideration
began on 9 July 1979, when Mr Torri lodged his civil party application,
and has not yet ended, since the civil proceedings are still pending
following an appeal.
24. 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, most recently, mutatis mutandis, the Zappia
v. Italy judgment of 26 September 1996, Reports of Judgments and
Decisions 1996-IV, p. 1412, para. 23).
25. The Government pleaded Mr Torri's conduct, pointing out that he
had waited until March 1991 before bringing the action for damages.
They submit that there was a "failure of communication between the
applicant and his lawyer" about the fact that notice of the date for
the hearing in the Court of Cassation had been served. Without
questioning the applicant's good faith, the Government nevertheless
submitted that this conduct was dilatory and incompatible with a
complaint to the Convention institutions on account of the alleged
protraction of the domestic proceedings.
26. The applicant asserted that the period of nearly five years
mentioned by the Government was attributable only to the deficiencies
of the judicial system, since the registry of the Court of Cassation
had omitted to serve him notice of the date for the hearing for
oral argument and of the fact that the judgment of 4 April 1986 had
been deposited. He had learned of the outcome of the
criminal proceedings only from consulting the Court of Cassation's
general list.
27. The Delegate of the Commission considered the length of the
two sets of proceedings excessive. He expressed the opinion that the
applicant's inertia had not played a part in prolonging consideration
of the case as such by the criminal and civil courts.
28. The Court notes at the outset that the criminal proceedings
lasted just over seven years and two months. Four years and six months
then went by before the commencement of the civil action, even though
Mr Torri's lawyer, as the documents filed by the Government at the
hearing on 19 February 1997 attest, had been served with a copy of the
notice of an appeal on points of law (on 19 November 1985) and notified
of the date of the hearing for oral argument (on 13 February 1986).
29. In the civil proceedings, which had commenced on 29 March 1991,
four years elapsed before the Rome District Court's judgment was
deposited with the registry (on 3 June 1995). Moreover, on 7 July 1996
the Court of Appeal adjourned the case until June 1997
(see paragraph 12 above).
In the Court's view these last two periods are too long and in
themselves exceed the "reasonable time" required by Article 6 of the
Convention (art. 6), without it being necessary to consider the length
of the criminal proceedings and the question of the applicant's
conduct, especially as there was no particular complexity to the case.
There has therefore been a breach of that provision (art. 6-1).
II. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
30. Article 50 of the Convention (art. 50) 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."
A. Damage, costs and expenses
31. The applicant claimed 150,000,000 Italian lire (ITL), that sum
being intended to cover both pecuniary and non-pecuniary damage and the
costs and expenses relating to both sets of proceedings in the
Italian courts. He produced evidence that he had paid ITL 15,398,000,
covering both the criminal and the civil proceedings, but submitted
that he was no longer able to prove all the other expenses he had
incurred in view of the length of the period in issue.
32. The Government submitted that if the Court were to find that
there had been a breach of the Convention, that decision would
constitute sufficient just satisfaction.
33. The Delegate of the Commission considered that the applicant had
not established that he had sustained pecuniary damage or that he had
had to pay lawyers' fees on account of the length of the
domestic proceedings. As regards costs and expenses for the
proceedings before the Strasbourg institutions and non-pecuniary
damage, he left it to the Court's discretion to fix an amount for the
first item and suggested that it award ITL 22,000,000 for the second.
34. The Court agrees with the Delegate on the question of pecuniary
damage. For the remainder of the claims, making an assessment on an
equitable basis and having regard to all the information in its
possession and its case-law on this question, it decides to award
Mr Torri ITL 15,000,000 for non-pecuniary damage and ITL 10,000,000 for
costs and expenses.
B. Default interest
35. According to the information available to the Court, the
statutory rate of interest applicable in Italy at the date of adoption
of the present judgment is 5% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's preliminary objection;
2. Holds that there has been a breach of Article 6 para. 1 of the
Convention (art. 6-1);
3. Holds
(a) that the respondent State is to pay the applicant, within
three months, 15,000,000 (fifteen million) Italian lire for
non-pecuniary damage, and 10,000,000 (ten million) lire for costs
and expenses;
(b) that simple interest at an annual rate of 5% shall be payable
from the expiry of the above-mentioned three months until
settlement;
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 1 July 1997.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
Full & Egal Universal Law Academy