In the case of Zappia 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. Matscher,
Mr C. Russo,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr U. Lohmus,
Mr E. Levits,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 29 March and 29 August 1996,
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 85/1995/591/677. 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 European Commission
of Human Rights ("the Commission") on 18 September 1995, 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. 24295/94) against the Italian Republic lodged with the Commission
under Article 25 (art. 25) by two Italian nationals, Mr Giuseppe Zappia
and his wife Giuseppa, née Vitalone, on 15 May 1993. The applicants,
who were designated before the Commission by the initials G.Z. and
G.V., subsequently consented to the disclosure of their identities.
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 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 applicants stated that
they did not wish to take part in the proceedings.
3. On 29 September 1995 the President of the Court decided that,
in accordance with Rule 21 para. 7 and in the interests of the proper
administration of justice, this case and the case of Di Pede
v. Italy (1) should be heard by the same Chamber. The Chamber to be
constituted for that purpose included ex officio Mr C. Russo, the
elected judge of Italian nationality (Article 43 of the Convention)
(art. 43), 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, the President of the Court, Mr R. Ryssdal, drew by lot the
names of the other seven members, namely Mr B. Walsh, Mr R. Macdonald,
Mr A.N. Loizou, Mr J.M. Morenilla, Mr M.A. Lopes Rocha, Mr L. Wildhaber
and Mr E. Levits (Article 43 in fine of the Convention and
Rule 21 para. 5) (art. 43). Subsequently Mr U. Lohmus and
Mr F. Matscher, substitute judges, replaced Mr Macdonald and Mr Walsh,
who were unable to take part in the further consideration of the case
(Rules 22 para. 1 and 24 para. 1).
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1. 83/1995/589/675.
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4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the
Italian Government ("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 Government filed
their memorial on 17 February 1996. The Registrar had received the
applicants' observations on 20 and 26 October 1995 and their claims for
just satisfaction on 6 February 1996.
5. On 21 February 1996 the Commission 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
28 March 1996. 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;
(b) for the Commission
Mr B. Conforti, Delegate.
The Court heard addresses by the above-mentioned
representatives.
AS TO THE FACTS
I. Circumstances of the case
A. The proceedings on the merits
7. On 27 July 1963 the applicants brought proceedings against
Mr B. in the Reggio di Calabria District Court seeking damages for
breach of a contract of sale relating to a flat under construction.
In a provisionally enforceable judgment of 5 July 1968,
deposited in the registry on 21 September 1968, the District Court
assessed the damage at 5 million Italian lire (ITL) and confirmed the
charging order which the applicants had been granted on 19 June 1964.
This judgment was upheld by the Reggio di Calabria Court of Appeal on
7 June 1969. In a judgment of 12 March 1973, deposited in the registry
on 16 July of the same year, the Court of Cassation dismissed an appeal
on points of law by Mr B.
B. The enforcement proceedings
8. On 28 November 1969 Mr and Mrs Zappia served Mr B. with a
notice to comply, but this produced no effect; a second notice, served
on 21 July 1977, was no more successful. Accordingly, on
5 December 1977, they applied to the judge responsible for enforcement
proceedings to have the property covered by the charging order
(see paragraph 7 above) sold so that they could be paid the sum due
together with interest and the costs of the enforcement proceedings.
9. On 9 May 1980 the judge set down the first hearing for
10 December 1980, but it did not take place until 11 March 1981 because
he had been transferred. Of the next eight hearings (from 13 May 1981
to 24 November 1982) two were adjourned at the request of both parties,
one without a reason being given, one at the defendant's request,
two because the defendant's lawyer was absent, one because the parties
had failed to appear and the last by the court of its own motion.
On 23 March 1983 another creditor intervened in the proceedings.
On 23 May 1984, after three further adjournments, the applicants asked
for the property covered by the charging order to be valued.
On 27 March 1985, after an adjournment ordered by the court of its own
motion, the judge appointed an expert, who was sworn in on
25 September 1985. The hearings listed for 26 February and
25 June 1986 had to be adjourned, as the expert had not filed his
report within the sixty days he had been given. The hearing set down
for 26 November 1986 could not take place because the judge had been
transferred.
10. On 28 December 1988 the applicants asked for a date to be
fixed for the sale. On 9 January 1989 the judge to whom the case had
now been assigned, noting that the property concerned was subject to
other charging orders, ordered the registry to add all the documents
concerning these orders to the file (Article 561 of the
Code of Civil Procedure). As the registry had failed to comply with
this instruction, the hearings listed for 24 May 1989,
18 December 1989, 3 June 1991 and 4 May 1992 had to be adjourned. The
hearing set down for 1 October 1991 had also been adjourned to enable
the parties to examine the expert's report.
On 5 October 1992, noting that the registry had at last
complied with the order of 9 January 1989, the applicants' lawyer asked
for a date to be fixed for the sale. Two hearings later, on
31 December 1992, the judge ordered the same expert to revalue the
property subject to the charging order, the creditors to inform another
creditor of the existence of the charging order and the registry to
take the necessary steps for public notification of the sale of the
property. He then directed the parties to appear at a hearing on
5 July 1993. As the registry had not served this order on the parties,
the hearing in question was adjourned, first until 27 September 1993
and then, for the same reason, until 7 March 1994. The hearing listed
for 7 November 1994 was adjourned because the registry staff were
unable to find the case file. The hearing scheduled for
5 December 1994 was adjourned until 5 June 1995 because the expert's
supplementary report had not yet been filed. The hearing listed for
5 June 1995 was adjourned by the court of its own motion because the
judge had been transferred.
11. According to a certificate issued by the
Reggio di Calabria District Court on 26 January 1996, submitted to the
Court by the applicants on 6 February, the expert has still not
submitted his report.
II. Relevant domestic law
12. In its report of 6 July 1995 the Commission gives a brief
summary of Italian legislation governing enforcement proceedings.
In particular, the Code of Civil Procedure provides:
Article 474
"Enforcement can be effected only where there is a valid
authority to execute in relation to an obligation which is
certain, the quantum of which has been fixed and which has
fallen due.
The following shall constitute valid authority to execute:
(1) Judgments and measures to which the law expressly accords
executory effect;
..."
Article 479
"Save where the law provides otherwise, enforcement must be
preceded by service of the authority to execute and the
notice to comply ..."
Article 567
"Where the period [ten days] laid down in Article 501 has
expired, the creditor who applied for the charging order and
any creditor who has joined the proceedings and is in
possession of authority to execute may apply for the property
charged to be sold ..."
Article 598
"If the proposal [for dividing the proceeds of the sale of
the property] is approved, or if an agreement is reached
between all the parties, this shall be formally minuted in
the case file and the judge responsible for the enforcement
proceedings shall order that the various shares be paid out;
otherwise [the judge shall prepare the case for trial]."
PROCEEDINGS BEFORE THE COMMISSION
13. Mr and Mrs Zappia applied to the Commission on 15 May 1993.
Relying on Article 6 para. 1 of the Convention (art. 6-1), they
complained of the length of civil proceedings followed by enforcement
proceedings.
14. The Commission declared the application (no. 24295/94)
admissible on 2 March 1995. In its report of 6 July 1995 (Article 31)
(art. 31), it expressed the opinion by twenty-six votes to three that
there had been a violation of Article 6 (art. 6). The full text of the
Commission's opinion and of the four separate opinions contained in the
report 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 1996-IV), 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 OF THE CONVENTION
(art. 6-1)
15. The applicants complained of the length of civil proceedings
followed by enforcement proceedings and 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
16. Without contesting the applicability of Article 6 (art. 6) to
the enforcement proceedings, the Government argued, as they had before
the Commission, that in so far as the application concerned the length
of the proceedings on the merits, it was out of time. For the purposes
of Article 26 in fine of the Convention (art. 26), the judgment of
12 March 1973 (see paragraph 7 above) was the final decision. The
enforcement proceedings could not therefore be regarded as a
second stage of the proceedings complained of; on the contrary, they
were new, separate proceedings. The "natural extension" argument put
forward by the Commission disregarded the specific features of the
Italian legal system. There were three aspects which distinguished the
two types of proceedings from each other. Firstly, the authority to
execute, without which no enforcement proceedings could take place, was
not necessarily derived from proceedings on the merits of a claim, but
could be derived from another source, as in the case of debts
(debiti pecuniari). Secondly, the parties to enforcement proceedings
might not be the same as the parties to the proceedings on the merits.
Lastly, the two stages were conducted concurrently where, for example,
a judicial decision was provisionally enforceable.
It followed that the six-month period referred to in
Article 26 (art. 26) in fine had begun with the deposit in the
registry, on 16 July 1973, of the judgment in question, and the
applicants had not complied with the six months' rule since they had
lodged their application on 15 May 1993.
In any event, the proceedings on the merits fell outside the
Court's jurisdiction ratione temporis, since the Italian declaration
accepting the right of individual petition (Article 25 of the
Convention) (art. 25) had come into force on 1 August 1973.
17. The Delegate of the Commission argued that the two sets of
proceedings complained of were indissociable and that any delay
imputable to the applicants between the end of the proceedings on the
merits and the enforcement proceedings had to be assessed in the light
of their conduct during the proceedings.
18. The Court considers that it does not have to express a view
on the difference of opinion as to whether under Italian law
enforcement proceedings are autonomous; it is with reference to the
Convention and not on the basis of national law that the Court must
decide whether, and if so when, the right asserted by Mr and Mrs Zappia
on 27 July 1963 (see paragraph 7 above) actually became effective. It
is that moment which constitutes determination of a civil right, and
therefore a final decision within the meaning of Article 26 (art. 26)
(see the Silva Pontes v. Portugal judgment of 23 March 1994, Series A
no. 286-A, p. 13, para. 29).
19. In the present case, on 12 March 1973, the Court of Cassation
upheld, as the Court of Appeal had already done, the
Reggio di Calabria District Court's judgment of 5 July 1968 in the
applicants' favour (see paragraph 7 above). On 21 July 1977 the
applicants served Mr B. with a notice to comply; then, on 5 December
of the same year, they applied to the judge responsible for enforcement
proceedings seeking payment of the sum due together with interest and
the costs of the enforcement proceedings.
According to the information supplied to the Court by the
applicants on 6 February 1996, by 26 January 1996 the expert had still
not filed the supplementary report (see paragraphs 7-11 above).
Faced with the inertia of the judge responsible for
enforcement proceedings, the applicants lodged an application with the
European Commission of Human Rights on 15 May 1993.
20. The Court considers that the enforcement proceedings must be
regarded as the second stage of the proceedings which began on
27 July 1963 (see, among other authorities, mutatis mutandis, the
previously cited Silva Pontes judgment, p. 14, para. 33) - which in
this case were not covered by the Italian declaration recognising the
right of individual petition (Article 25) (art. 25); it emphasises
that, at the date of adoption of the present judgment, it has not been
informed of any final decision within the meaning of Article 26 in fine
of the Convention (art. 26).
The objection must accordingly be dismissed.
B. Merits of the complaint
21. It remains to be decided whether a reasonable time was
exceeded. The Commission and the applicants maintained that it was.
The Government disagreed.
22. The Court observes that the period to be taken into
consideration did not begin on 27 July 1963, when proceedings were
brought against Mr B. in the Reggio di Calabria District Court, but
only on 1 August 1973 when the Italian declaration under Article 25 of
the Convention (art. 25) took effect (see paragraph 20 above). In
order to determine the reasonableness of the length of time which has
elapsed since that date, regard must be had however to the state of the
case at the time (see, among other authorities, the Billi
v. Italy judgment of 26 February 1993, Series A no. 257-G, p. 89,
para. 16).
The relevant period has not yet ended, as the enforcement
proceedings are still pending.
23. 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 many other authorities,
mutatis mutandis, the Ausiello v. Italy judgment of 21 May 1996,
Reports of Judgments and Decisions 1996-III, p. 722, para. 19).
24. The Government pleaded the conduct of the applicants, who had
waited until July 1977 before commencing the enforcement proceedings
and had subsequently again requested adjournments.
25. Like the Delegate of the Commission, the Court notes, firstly,
that the applicants served Mr B. with a notice to comply only on
21 July 1977 (four years after the end of the proceedings on the
merits) and applied to the judge responsible for enforcement
proceedings on 5 December 1977 (see paragraph 8 above). Secondly, it
observes that the applicants were responsible for three adjournments,
two because they requested them and a third because they did not object
to the defendant's request. However, their conduct alone does not
explain the length of the proceedings complained of.
No fewer than thirteen hearings were adjourned, sometimes on
account of a judge's transfer, sometimes by the court of its own motion
and sometimes because the registry was not functioning correctly
(see paragraphs 9 and 10 above). In addition, the expert's
supplementary report, which was ordered on 31 December 1992 has still
not been filed at the registry. In that connection, the Court points
out that an expert works in the context of judicial proceedings
supervised by a judge, who remains responsible for the preparation and
the speedy conduct of the trial (see, among other authorities, the
Scopelliti v. Italy judgment of 23 November 1993, Series A no. 278,
p. 9, para. 23).
26. Consequently, a period of more than twenty-three years for
proceedings which are still pending and are of no particular complexity
cannot be regarded as reasonable.
There has therefore been a breach of Article 6 para. 1
(art. 6-1).
II. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
27. Under Article 50 of the Convention (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 and costs and expenses
28. The applicants claimed ITL 107,976,000 for pecuniary and
non-pecuniary damage, reimbursement of their costs and lawyers' fees
for the proceedings before the Italian courts and ITL 4,000,000 for the
costs they had incurred before the Convention institutions.
29. The Government submitted that these claims should be
dismissed. With regard to the alleged pecuniary damage, the figure
advanced corresponded to the amount of the debt apparently owed by
Mr B. There was no valid claim for non-pecuniary damage. The costs
would in any case have been incurred by the applicants irrespective of
the length of the proceedings they complained of.
30. The Delegate of the Commission left the matter to the
discretion of the Court, which, making an assessment on an equitable
basis, and having regard to the information in its possession and its
case-law on the question, decides to award Mr and Mrs Zappia
ITL 24,000,000 for damage and costs and expenses.
B. Default interest
31. 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 10% per annum.
FOR THESE REASONS, THE COURT
1. Dismisses by eight votes to one the Government's preliminary
objection;
2. Holds by eight votes to one that there has been a breach of
Article 6 para. 1 of the Convention (art. 6-1);
3. Holds by eight votes to one that the respondent State is to
pay the applicants, within three months,
24,000,000 (twenty-four million) Italian lire for damage,
costs and expenses, and that simple interest at an annual
rate of 10% shall be payable from the expiry of the
above-mentioned three months until settlement;
4. Dismisses unanimously 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 26 September 1996.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 55 para. 2 of Rules of Court B, the dissenting
opinion of Mr Morenilla is annexed to this judgment.
Initialled: R. B.
Initialled: H. P.
DISSENTING OPINION OF JUDGE MORENILLA
(Translation)
1. For the reasons I have set out in my dissenting opinions in
the Silva Pontes v. Portugal (1) and Di Pede v. Italy (2) cases, I
consider that the Government's objection must be allowed, since the
proceedings on the merits ended in 1973 with a final judgment which
constitutes the relevant final decision for the purposes of the
six-month limit under Article 26 of the Convention (art. 26). When
Mr and Mrs Zappia applied to the Commission in 1993 (twenty years
later!) the Commission did not have jurisdiction to deal with the
complaint relating to the length of the declaratory proceedings.
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1. Judgment of 23 March 1994, Series A no. 286-A.
2. Judgment of 26 September 1996, Reports of Judgments and
Decisions 1996-IV.
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2. As regards the complaint concerning the excessive length of
the enforcement proceedings complained of by the applicants, I repeat
that, as these proceedings are separate from the proceedings on the
merits, even though they began on 5 December 1977 the
Strasbourg institutions have jurisdiction to deal with the complaint
under Article 6 of the Convention (art. 6) because they are still
pending.
3. Given that I consider the Court to have jurisdiction to rule
on that complaint, limited - I repeat - to the enforcement proceedings,
I agree with the reasoning and conclusion of the majority to the effect
that there was a violation of Article 6 para. 1 of the Convention
(art. 6-1) in the case. Unlike the position in the above-mentioned
Di Pede case, which concerned enforcement of an obligation to perform
a specific act, governed by Articles 612 and 613 of the
Italian Code of Civil Procedure, the present case concerns proceedings
to enforce payment of a sum specified in the final decision on the
merits, plus interest and the costs of the enforcement proceedings.
Under this procedure the same Italian Code of Civil Procedure
(see paragraph 12 of the judgment) not only requires the plaintiff to
institute proceedings - so that it is for a party to take the
initiative - but also places the courts under an obligation to rule on
the judgment creditor's claims. In the present case the judge dealing
with the enforcement proceedings has still not reached any decision
(see paragraph 25 of the judgment).
4. In my opinion, therefore, the applicants' contribution to the
delays they complained of in the enforcement proceedings does not
justify the judge's inactivity, or indeed negligence, as regards
bringing the proceedings to an end (see paragraph 25 of the judgment).
For that reason, I consider that the length of the enforcement
proceedings has exceeded the reasonable time required by Article 6
para. 1 (art. 6-1) and I voted against the award of any sum whatsoever
to the applicants for damages under Article 50 (art. 50).
Full & Egal Universal Law Academy