In the case of Tumminelli 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 30 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 61/1991/313/384. 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.
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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
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 13362/87) against the Italian Republic lodged with
the Commission under Article 25 (art. 25) by an Italian national,
Mr Salvatore Tumminelli, on 29 October 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. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he
did not wish to take part in the proceedings.
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, Serrentino, Cormio and Lorenzi, Bernardini and Gritti* 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; 51/1991/303/374; 58/1991/310/381; 59/1991/311/382
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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 the same day, 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 deliberations held
on 30 October, 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") 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 August, the Secretary to the Commission
informed the Registrar that the Delegate did not consider it
necessary to reply thereto.
6. On 28 June the Chamber had decided to dispense with a
hearing, having found that the conditions for such derogation from
the usual procedure were satisfied (Rules 26 and 38).
7. On 28 August the Commission produced the file on the
proceedings before it, as requested by the Registrar on the
President's instructions.
8. On 5 November the Commission lodged its observations on the
claims for just satisfaction which the applicant had communicated to
the Registrar on 28 June (Article 50 of the Convention; Rules 50 and
1(k), taken together) (art. 50) and on which the Government had
already commented in their memorial.
AS TO THE FACTS
9. Mr Salvatore Tumminelli is an Italian national and resides
at Caltanissetta. He is a surveyor. 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 29 May 1979 the applicant, who is a surveyor,
applied to the presiding judge of the Caltanissetta District
Court for a payment order against a Mr M., who he alleged
owed him the sum of 1,324,000 Italian lire for professional
services. On 31 May 1979 the presiding judge issued an
order to pay (decreto d'ingiunzione') against Mr M. who on
3 July 1979 contested the order and thus instituted ordinary
civil proceedings against the applicant.
18. The investigation opened at the hearing of
22 November 1979, followed by that of 24 April 1980, when
Mr M. requested an adjournment. The investigating judge
fixed the following hearing for 26 June 1980, but was
subsequently transferred. The hearing did not take place
until 5 February 1981 and was held before the presiding
judge of the District Court, replacing the investigating
judge. The presiding judge gave no decision on the parties'
requests for investigative measures and merely adjourned the
hearing to 25 June 1981.
19. However, the hearing was not held until
4 February 1982, before the new investigating judge. On
8 February 1982 the investigating judge set down a hearing
for 8 July 1982 for the examination of certain witnesses
cited by the parties. On that date, two witnesses cited by
the applicant and one witness cited by Mr M. were heard.
The investigation of the case was adjourned to 24 March 1983
so that a second witness cited by Mr M. could be examined.
However, the witness failed to appear because he had not
been duly summoned.
20. The hearing was accordingly postponed to
29 September 1983 but did not take place until 11 April
1985, when the parties again requested the examination of
the witness. The witness, though duly summoned, did not
appear on 11 July 1985 or indeed at the hearing of
17 October 1985. On 6 February 1986 the investigating judge
imposed a fine on the witness and ordered him to be brought
by the police to the hearing on 6 March 1986.
21. However, that hearing did not take place because the
investigating judge had been transferred. Following his
replacement, a hearing was fixed for 12 January 1988 before
the new investigating judge, but the applicant was not duly
notified and did not appear. The hearing was therefore
adjourned to 20 September 1988, when the investigating judge
set down the hearing for the examination of the witness for
23 February 1989. However, the witness was prevented by
illness from attending that hearing, which was postponed to
29 June 1989, with further adjournments by court order to
21 December 1989, 29 January 1991 and 5 November 1991."
10. According to the information provided to the European Court
by the Government, on that last date the examination of the case was
adjourned until 19 March 1992.
PROCEEDINGS BEFORE THE COMMISSION
11. Mr Tumminelli lodged his application with the Commission on
29 October 1987. 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. 13362/87) admissible. In its report of 5 March 1991
(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 231-H
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
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
13. 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 contested this view, whereas the Commission
accepted it.
14. The period to be taken into consideration began on
31 May 1979, the date of the payment order (see the Pugliese (II) v.
Italy judgment of 24 May 1991, Series A no. 206-A, p. 8, para. 16),
and it has not yet ended.
15. 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.
16. The Government invoked a witness's failure to appear and the
transfers of investigating judges. In addition, the applicant had
not requested that the latter be replaced more quickly, or that
sanctions be taken against the witness, or again that he be
compelled to appear.
17. The case is however a simple one. Furthermore there were
long periods, ranging from about three months (11 April 1985 -
11 July 1985 and 11 July 1985 - 17 October 1985) to more than two
years and nine months (8 July 1982 - 11 April 1985), between the
various hearings before the competent judge. With one single
exception, that requested by Mr M. on 24 April 1980, the numerous
adjournments were not ordered at the parties' request, but were
decided because of a delay in appointing the successor of a
transferred judge on two occasions, because of the failure to
communicate to the applicant the date of one of the hearings
(12 January 1988) and because of the defective summons, the failure
to appear or the non-availability, as the case may be, of one of the
witnesses (24 March 1983, 11 July 1985, 17 October 1985 and
23 February 1989).
On this latter point, it should be stressed that the
decision to have recourse to the testimony of a witness was taken in
the context of judicial proceedings supervised by a judge (see,
mutatis mutandis, the Capuano v. Italy judgment of 25 June 1987,
Series A no. 119, p. 13, para. 30). More generally, Article 6 para. 1
(art. 6-1) imposes on the Contracting States the duty to organise their
legal systems in such a way that their courts can meet each of its
requirements (see, inter alia, the Vocaturo v. Italy judgment of
24 May 1991, Series A no. 206-C, p. 32, para. 17).
Like the Commission, the Court also attaches importance to
two periods of inactivity for which the State was essentially
responsible, between 24 April 1980 and 5 February 1981 and then from
that date until 4 February 1982; in particular, it emphasises for
its part too that no investigative measure appears to have been
taken since 8 July 1982.
18. In those circumstances, it cannot regard as "reasonable" in
this instance a lapse of time of more than twelve years for
proceedings which are still at the stage of the investigation.
There has therefore been a violation of Article 6 para. 1
(art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
19. 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
20. The applicant claimed in the first place 10,000,000 Italian
lire for damage.
In the Government's contention, he failed to establish that
he had sustained pecuniary damage. As to any non-pecuniary damage,
a finding of a violation would provide sufficient just satisfaction.
The Commission considered that, in addition to reparation
for non-pecuniary damage, Mr Tumminelli was entitled to compensation
for any pecuniary damage sustained by him if he succeeded in
establishing its existence and that of a causal connection with the
violation found.
21. The evidence does not show that these conditions have been
satisfied. The applicant may on the other hand have suffered a
degree of non-pecuniary damage, but, in the circumstances of the
case, the Court finds that the conclusion which appears in
paragraph 18 of this judgment constitutes in this respect adequate
satisfaction for the purposes of Article 50 (art. 50).
B. Costs and expenses
22. The applicant also claimed 1,996,500 lire in respect of
costs and expenses incurred before the Convention organs.
Having regard to the evidence at its disposal and to its
case-law in this field, the Court awards the amount claimed in its
entirety.
C. Interest
23. 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.
24. 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 this judgment constitutes in itself, as regards
the non-pecuniary damage sustained, sufficient just
satisfaction for the purposes of Article 50 (art. 50);
3 Holds that the respondent State is to pay Mr Tumminelli,
within three months, 1,996,500 (one million nine hundred and
ninety-six thousand five hundred) Italian lire for costs and
expenses;
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
27 February 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy