SCORDINO AND OTHERS v. ITALY (No. 1)

...

THE FACTS

The applicants are four Italian nationals, Giovanni, Elena, Maria and Giuliana Scordino, who were born in 1959, 1949, 1951 and 1953 respectively and live in Reggio di Calabria. Having originally been designated by the initials G.S. and Others, the applicants subsequently agreed to the disclosure of their names. They were represented before the Court by Mr N. Paoletti, a lawyer practising in Rome.

A hearing was held on 27 March 2003 at which the applicants were also represented by Ms A. Mari, Counsel. The respondent Government were represented by Mr F. Crisafulli, Deputy Co-Agent.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  The expropriation of the land

In 1992 the applicants inherited from Mr A. Scordino several plots of land in Reggio di Calabria, entered in the land register as folio 111, parcels 105, 107, 109 and 662.

On 25 March 1970 Reggio di Calabria District Council adopted a general development plan, which was approved by the Calabria Regional Council on 17 March 1975.

The land in issue in the instant case, an area of 1,786 sq. m designated as parcel 109, was classified as building land; an expropriation permit was issued under the development plan with a view to the construction of housing on the land.

In 1980 Reggio di Calabria District Council decided that a cooperative society, Edilizia Aquila, would carry out building work on the land in question. In a decision of 13 March 1981 the administrative authorities granted the cooperative permission to occupy the land.

On 30 March 1982, pursuant to Law no. 385/1980, Reggio di Calabria District Council offered an advance on the compensation payable for the expropriation, the amount having been determined in accordance with Law no. 865/1971. The sum offered, 606,560 lire (ITL), was calculated according to the rules in force for agricultural land, using a value of ITL 340 per square metre as a basis, with the proviso that the final amount of compensation would be determined once a law had been enacted laying down new compensation criteria for building land.

The offer was refused by Mr A. Scordino.

On 21 March 1983 the Regional Council issued an expropriation order in respect of the land.

On 13 June 1983 the District Council made a second offer for an advance, this time amounting to ITL 785,000. The offer was not accepted.

In judgment no. 223, delivered in 1983, the Constitutional Court declared Law no. 385/1980 unconstitutional on the ground that it made the award of compensation subject to the enactment of a future law.

As a result of that judgment, Law no. 2359/1865, which provided that compensation for expropriation should correspond to the market value of the land in question, came back into force.

On 10 August 1984 Mr A. Scordino served formal notice on the District Council to determine the final amount of compensation in accordance with Law no. 2359/1865. On 16 November 1989 he learned that Reggio di Calabria District Council had assessed the final amount at ITL 88,414,940 (ITL 50,000 per square metre) in an order of 6 October 1989.

2.  Proceedings for the award of compensation for the expropriation

On 25 May 1990, contesting the amount of compensation he had been awarded, Mr A. Scordino brought proceedings against the District Council and the cooperative in the Reggio di Calabria Court of Appeal.

He argued that the amount determined by the District Council was ridiculously low in relation to the market value of the land and requested, among other things, to have the compensation calculated in accordance with Law no. 2359/1865. He also sought compensation for the period during which the land had been occupied before the expropriation order had been issued, and for the area of land (1,500 sq. m) that had become unusable as a result of the building work.

Preparation of the case for hearing began on 7 January 1991.

The cooperative gave notice of its intention to defend and raised an objection, arguing that it could not be considered a party to the proceedings.

On 4 February 1991, as the District Council had still not given notice of its intention to defend, the Reggio di Calabria Court of Appeal declared it to be in default and ordered an expert assessment of the land. In an order of 13 February 1991 an expert was appointed and was given three months in which to submit his report.

On 6 May 1991 the District Council gave notice of its intention to defend and raised an objection, arguing that it could not be considered a party to the proceedings. The expert agreed to his terms of reference and was sworn in.

On 4 December 1991 the expert submitted a report.

On 8 August 1992 Law no. 359/1992 came into force. Section 5 bis of the Law laid down new criteria for calculating compensation for the expropriation of building land. The Law was expressly applicable to pending proceedings.

Following Mr A. Scordino’s death on 30 November 1992, the applicants joined the proceedings on 18 September 1993.

On 4 October 1993 the Reggio di Calabria Court of Appeal appointed another expert and instructed him to assess the compensation for the expropriation according to the new criteria laid down in section 5 bis of Law no. 359/1992.

The expert submitted his report on 24 March 1994, concluding that the land’s market value on the date of the expropriation had been ITL 165,755 per square metre. In accordance with the new criteria laid down in section 5 bis of Law no. 359/1992, the compensation due was ITL 82,890 per square metre.

At the hearing on 11 April 1994 the parties asked for time to submit comments on the expert’s report. Counsel for the applicants produced a separate expert opinion and observed that the expert appointed by the court had omitted to calculate the compensation for the 1,500 sq. m of land that were not covered by the expropriation order but had become unusable as a result of the building work.

A hearing was held on 6 June 1994 at which observations were submitted in reply. The next hearing, scheduled for 4 July 1994, was adjourned by the court of its own motion until 3 October 1994 and then until 10 November 1994.

In an order of 29 December 1994 the court ordered a further expert assessment and adjourned the proceedings until 6 March 1995. However, the hearing was subsequently adjourned on several occasions as the investigating judge was unavailable. At the applicants’ request, the investigating judge was replaced on 29 February 1996 and the parties made their submissions at a hearing on 20 March 1996.

In a judgment of 17 July 1996 the Reggio di Calabria Court of Appeal held that the applicants were entitled to compensation calculated according to section 5 bis of Law no. 359/1992, both for the land that had been formally expropriated and for the land that had become unusable as a result of the building work. It also held that the compensation thus determined should not be subject to the further 40% statutory deduction applicable where the owner of the expropriated land had not signed an agreement for its transfer (cessione volontaria), seeing that in the applicants’ case the land had already been expropriated when the Law had come into force.

In conclusion, the Court of Appeal ordered the District Council and the cooperative to pay the applicants:

(a)  ITL 148,041,540 (ITL 82,890 per square metre for 1,786 sq. m of land) in compensation for the expropriation;

(b)  ITL 91,774,043 (ITL 75,012.50 per square metre for 1,223.45 sq. m) in compensation for the part of the land that had become unusable and was to be regarded as having been de facto expropriated; and

(c)  compensation for the period during which the land had been occupied prior to its expropriation.

Those amounts were to be index-linked and interest was payable on them until the date of settlement.

On 20 December 1996 the cooperative appealed on points of law, arguing that it could not be considered a party to the proceedings. On 20 and 31 January 1997 respectively the applicants and the District Council likewise appealed.

On 30 June 1997 the cooperative applied for a stay of execution of the Court of Appeal’s judgment. That application was rejected on 8 August 1997.

In a judgment of 3 August 1998, deposited with the registry on 7 December 1998, the Court of Cassation allowed the cooperative’s appeal, acknowledging that it could not take part in the proceedings as it had not formally been a party to the expropriation, although it had benefited from it. It upheld the remainder of the Reggio di Calabria Court of Appeal’s judgment.

The date on which the applicants actually received the compensation is not known.

In accordance with Law no. 413/1991, the compensation was paid after tax had been deducted at the source at a rate of 20%.

3.  The Pinto Act claim

On 18 April 2001 the applicants applied to the Reggio di Calabria Court of Appeal, claiming compensation under the Pinto Act for the length of the proceedings.

They sought redress for non-pecuniary and pecuniary damage.

In a decision of 1 July 2001 the Reggio di Calabria Court of Appeal awarded the applicants an aggregate sum of 2,450 euros (EUR) for non-pecuniary damage only and ordered the parties to pay their own costs.

In a letter of 4 December 2002 the applicants stated that, having regard to the Court of Cassation’s relevant case-law, they did not intend to appeal on points of law. They appended the two judgments of the Court of Cassation summarised below in “Relevant domestic law and practice”.

B.  Relevant domestic law and practice

1.  As regards the complaint concerning the length of proceedings

The relevant parts of Article 111 of the Constitution provide:

“1.  Jurisdiction shall be exercised through fair proceedings, conducted in accordance with the law.

2.  All proceedings shall be conducted in compliance with the principles of adversarial process and equality of arms before a neutral and impartial court. The right to be tried within a reasonable time shall be guaranteed by law.”

The relevant provisions of the Pinto Act (Law no. 89/2001) are worded as follows:

Section 2

(Entitlement to just satisfaction)

“(1)  Anyone sustaining pecuniary or non-pecuniary damage as a result of a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, on account of a failure to comply with the ‘reasonable time’ requirement in Article 6 § 1 of the Convention, shall be entitled to just satisfaction.

(2)  In determining whether there has been a violation, the court shall have regard to the complexity of the case and, in the light thereof, the conduct of the parties and of the judge deciding procedural issues, and also the conduct of any authority required to participate in or contribute to the resolution of the case.

(3)  The court shall assess the quantum of damage in accordance with Article 2056 of the Civil Code and shall apply the following rules:

(a)  only damage attributable to the period beyond the reasonable time referred to in subsection 1 may be taken into account;

(b)  in addition to the payment of a sum of money, reparation for non-pecuniary damage shall be made by giving suitable publicity to the finding of a violation.”

Section 3

(Procedure)

“...

(2)  The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by Article 125 of the Code of Civil Procedure.

...

(6)  The Court shall deliver a decision within four months after the application is lodged. An appeal shall lie to the Court of Cassation. The decision shall be enforceable immediately.

...”

The Italian Court of Cassation has jurisdiction to deal only with points of law. In civil matters, Article 360 of the Code of Civil Procedure lists the circumstances in which appeals on points of law are possible.

In cases relating to the Pinto Act, the Court of Cassation has to date delivered and published approximately one hundred judgments, copies of which have been sent to the Registry of the Court.

In Adamo and Others v. Ministry of Justice (judgment of 10 June 2002), the appellants had applied to the Rome Court of Appeal claiming compensation under the Pinto Act for the excessive length of proceedings (in a labour dispute). The Rome Court of Appeal had dismissed their claim on the ground that they had not proved that they had sustained damage. In the Court of Cassation the appellants argued that they were entitled to redress for non-pecuniary damage, in the light of the Strasbourg Court’s case-law.

The Court of Cassation held that a claimant was not automatically considered to have sustained damage where there had been a finding of a violation of the right to a hearing within a reasonable time; in other words, to use the Court of Cassation’s own expression, the damage was not in re ipsa. In that connection, the Court of Cassation stated that the right to a hearing within a “reasonable time” was not a fundamental human right guaranteed by an immediately applicable constitutional provision, but merely a right laid down in an ordinary law (the Pinto Act). That right could not even come under the “right to a fair hearing”, which was protected by the Constitution but did not give rise to individual safeguards since it was an outline provision. Consequently, where a court held that the length of proceedings had been excessive it could award compensation only where it had been proved that damage had actually been sustained. The Court of Cassation accordingly dismissed the appeal on the ground that no proof of non-pecuniary damage had been made out.

In Ministry of Justice v. Maccarone (judgment of 10 June 2002), the claimant had been awarded ITL 8,000,000 (EUR 4,132) by the Perugia Court of Appeal. The ministry had contested that decision, arguing, in particular, that where a court held that the length of proceedings had been excessive, non-pecuniary damage was not in re ipsa and the court then had to assess the evidence of the alleged damage.

The Court of Cassation allowed the appeal, quashed the decision complained of and remitted the case to the Court of Appeal. In so doing, it reiterated that a violation of the right to a hearing within a reasonable time was not in itself a source of damage and that it was necessary to ascertain whether any damage had been sustained by the claimant. The Court of Cassation considered that the right to a hearing within a reasonable time was not a fundamental right since it was laid down solely in an ordinary law. Consequently, the existence of any damage, in particular non-pecuniary damage, had to be proved by the claimant. Such proof could in practice follow from inferences or presumptions on the basis of what was known about the effects of the length of proceedings on those concerned.

It is clear from a comparative examination of the Court of Cassation’s judgments available to date that the principles established in the two cases cited above have been applied consistently.

There are no cases in which the Court of Cassation has entertained a complaint to the effect that the amount awarded by the Court of Appeal was insufficient in relation to the alleged damage or inadequate in the light of the Strasbourg institutions’ case-law. The Court of Cassation has treated such complaints either as factual issues outside its jurisdiction or as issues arising on the basis of provisions that are not directly applicable.

2.  As regards the expropriation

Section 39 of Law no. 2359/1865 provided that where land was expropriated, the compensation to be paid should correspond to its market value at the time of the expropriation.

Article 42 of the Constitution, as interpreted by the Constitutional Court (see, among other authorities, judgment no. 138 of 6 December 1977), guarantees the payment of compensation for expropriation, in an amount lower than the market value of the land.

Law no. 865/1971 laid down new criteria: compensation for any land, whether it was agricultural or building land, should be paid as though it were agricultural land.

In judgment no. 5/1980 the Constitutional Court declared Law no. 865/1971 unconstitutional on the ground that it afforded the same treatment to two very different situations by providing for the same form of compensation for building and agricultural land.

In order to remedy the situation, Parliament enacted Law no. 385 of 29 July 1980, which reaffirmed, but this time on a provisional basis, the criteria that had been declared unconstitutional. The Law provided that compensation should be paid in the form of an advance, to be supplemented by a payment calculated on the basis of a subsequent law that would lay down specific compensation criteria for building land.

In judgment no. 223/1983 the Constitutional Court declared Law no. 385/1980 unconstitutional on the ground that it made the award of compensation subject to the enactment of a future law.

As a result of that judgment, Law no. 2359/1865 came back into force. Consequently, the compensation payable for building land was to correspond to the land’s market value (see, for example, Court of Cassation, Section I, judgment no. 13479 of 13 December 1991, and Section I, judgment no. 2180 of 22 February 1992).

Legislative Decree no. 333 of 11 July 1992, which became Law no. 359 of 8 August 1992, introduced (in section 5 bis) a “temporary, exceptional and urgent” measure aimed at stabilising public finances, to remain valid until structural measures were adopted.

Section 5 bis provides that the compensation payable for the expropriation of building land is to be calculated using the following formula: market value of the land plus the total of annual ground rent multiplied by the last ten years, divided by two, minus a 40% deduction.

In such cases, the compensation corresponds to 30% of the market value. That amount is subject to tax, deducted at source at a rate of 20% (in accordance with section 11 of Law no. 413/1991).

The 40% deduction can be avoided if the basis for the expropriation is not an expropriation order but a “voluntary agreement” for the transfer of the land or, as in the instant case, if the expropriation took place before section 5 bis came into force (see the Constitutional Court’s judgment no. 283 of 16 June 1993).

In such cases, the resulting compensation corresponds to 50% of the market value. Again, that amount is subject to tax at a rate of 20% (see above).

The Constitutional Court has held section 5 bis of Law no. 359/1992 and its retrospective application to be compatible with the Constitution (judgment no. 283 of 16 June 1993; judgment no. 442 of 16 December 1993) on account of the urgent and temporary nature of the Law.

COMPLAINTS

1.  Relying on Article 6 § 1 of the Convention, the applicants complained of the length of the proceedings.

2.  The applicants also complained of an infringement of their right to the peaceful enjoyment of their possessions in that compensation had been paid to them a long time after the confiscation of their land and had not been sufficient, having been calculated on the basis of section 5 bis of Law no. 359/1992. They alleged a violation of Article 1 of Protocol No. 1.

3.  The applicants complained under Article 6 § 1 of the Convention that the enactment of section 5 bis of Law no. 359/1992 and its application in their case had amounted to interference by the legislature in breach of their right to a fair hearing.

THE LAW

1.  The applicants complained of the length of the proceedings. They relied on Article 6 § 1 of the Convention, the relevant parts of which provide:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

1.  The Government’s objections

The Government raised two objections.

Firstly, they submitted that the applicants had not exhausted domestic remedies as they had not appealed to the Court of Cassation against the Reggio di Calabria Court of Appeal’s decision.

The Government put forward several arguments to show that an appeal to the Court of Cassation was an effective remedy. Firstly, they observed that the Court of Cassation’s jurisdiction to consider appeals lodged under the Pinto Act was the same as in all other cases in which appeals were lodged with it in the ordinary manner under Article 360 of the Code of Civil Procedure. Although it was accordingly true that the amount of compensation as such could not form the subject of an appeal on points of law, the applicants could nonetheless have argued in the Court of Cassation that the Court of Appeal’s decision had not been logical or had been based on inconsistent reasoning, or they could have contested the amount awarded at first instance by arguing that the criteria used had not complied with the law. The Government further pointed out that the Court of Cassation was empowered to quash a decision and to refer the case to a new trial court.

The Government submitted that the applicants had contested the effectiveness of the remedy without adducing any evidence and that their allegations were based solely on two Court of Cassation judgments.

In that connection, they observed that the Court of Cassation’s case-law in such matters was fairly extensive but had not yet become settled, in the absence of a judgment by the full court.

As to the Court of Cassation’s application of the criteria established in the Strasbourg institutions’ case-law, the Government considered that that was a non-issue as it concerned “alleged criteria”. In that connection, the Government noted that the Court’s case-law did not lay down “criteria” for calculating just satisfaction, because the word “criteria” could be used only if the basis for the calculation was explicitly defined and clearly identifiable and could be expressed as a mathematical formula. In addition, the Government observed that the Court awarded just satisfaction on an optional basis as it could decide not to make an award where the finding of a violation was considered sufficient, and that it ruled on such awards “on an equitable basis”, without giving detailed reasons.

In conclusion, the Government submitted that there were no grounds for complaining of a failure to observe “criteria” which, firstly, did not exist and, secondly, could not exist because the very nature of the assessment for which they were to serve as a basis was not suited to their use.

The Government also argued that the question of the status of the Convention in the Italian legal system was irrelevant. In that connection, they observed that a domestic remedy was effective if the violations alleged by an applicant could be made good in substance. There was no need for the standards laid down in the Convention and in the Strasbourg institutions’ case-law to be applied strictly.

As to the issue of quantum, the Government submitted that the Court of Cassation could have determined whether the amount of compensation obtained by the applicants had been adequate. On that point, they observed that the two Court of Cassation judgments cited by the applicants were consistent with the now settled line of case-law that the existence of non-pecuniary damage did not follow automatically from a finding that the length of proceedings had been unreasonable. The Government accepted that the possibility of obtaining compensation was conditional on the applicant’s adducing proof of the damage, or at least sufficient evidence to give rise to a presumption on the part of the court. In that connection, the Government pointed out that in certain judgments the Court of Cassation had dismissed complaints concerning, for example, the inadequacy of an award of compensation, on the ground that they were too vague and based on mere allegations.

In conclusion, the Government considered that the applicants should have appealed to the Court of Cassation, and asked the Court to dismiss their complaint for failure to exhaust domestic remedies.

The Government raised a second objection, arguing that the applicants did not have standing as victims.

They observed in that connection that in making an award to the applicants, the Reggio di Calabria Court of Appeal had not only acknowledged that there had been a violation of their right to a hearing within a reasonable time but had also made good the damage sustained. In the Government’s submission, the amount of compensation awarded was not open to question by the Court, since the national court had made its assessment on an equitable basis, acting within its margin of appreciation in ruling on the award of just satisfaction.

The Government observed that Article 41 of the Convention did not oblige the Court to award just satisfaction. In their submission, the Court was therefore at liberty not to make an award, without having to give any reasons for its decision, since its assessment was made on an equitable basis; moreover, an applicant who was not satisfied with the amount awarded did not have the possibility of applying to the Grand Chamber.

2.  The applicants’ arguments

The applicants maintained that an appeal to the Court of Cassation was not a remedy that had to be used, having regard to that court’s relevant case-law, of which they cited two examples (see “Relevant domestic law and practice” above).

They argued that it had not been open to them to submit complaints as to the amount of compensation and the extent of the alleged damage.

The applicants maintained that they were still “victims” within the meaning of Article 34 of the Convention, in spite of the Reggio di Calabria Court of Appeal’s decision, since the decision had not afforded redress for the violation of the Convention found by that court. The Court of Appeal had awarded the applicants an insufficient amount of compensation, owing to the fact that the national courts did not consider the right to a hearing within a reasonable time to be a fundamental right and that the Convention was not regarded as applicable.

3.  The Court’s assessment

The Court must first determine whether the applicants have exhausted the remedies available to them in Italian law, as required by Article 35 § 1 of the Convention. The question in their case is whether they were required to appeal to the Court of Cassation against the Court of Appeal’s decision on a matter coming under the Pinto Act.

The Court points out that in recent cases concerning claims lodged with courts of appeal (see Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX, and Di Cola and Others v. Italy (dec.), no. 44897/98, 11 October 2001) it held that the remedy introduced by the Pinto Act was accessible and that there was no reason to question its effectiveness. Furthermore, the Court took the view that, having regard to the nature of the Pinto Act and the context in which it was passed, there were grounds for departing from the general principle that the exhaustion requirement should be assessed with reference to the time at which the application was lodged.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated into national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 65).

Although there is no formal obligation on Contracting States to incorporate the Convention in their domestic legal system (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 48, § 86, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 113, ECHR 2002-VI), it follows from the principle of subsidiarity outlined above that the national courts must, where possible, interpret and apply domestic law in accordance with the Convention. While it is primarily for the national authorities to interpret and apply domestic law, the Court is in any event required to verify whether the way in which domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention (see Carbonara and Ventura v. Italy, no. 24638/94, § 68, ECHR 2000-VI, and Streletz, Kessler and Krenz v. Germany GC, nos. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001-II), of which the Court’s case-law is an integral part.

In this connection, the Court notes, lastly, that by substituting the words “shall secure” for the words “undertake to secure” in the text of Article 1, the drafters of the Convention also intended to make it clear that the rights and freedoms set out in Section I would be directly secured to anyone within the jurisdiction of the Contracting States (Document H (61) 4, pp. 664-703, 733 and 927). That intention finds a particularly faithful reflection in those instances where the Convention has been incorporated into domestic law (see De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no. 12, p. 43, § 82; Swedish Engine Drivers’ Union v. Sweden, judgment of 6 February 1976, Series A no. 20, p. 18, § 50; and Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 90-91, § 239). Nevertheless, the Convention, which lives through the Court’s case-law, is now directly applicable in practically all the States Parties.

Under Article 35 normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. However, there is no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the “generally recognised rules of international law” there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal. The rule is also inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective (see Akdivar and Others, cited above, p. 1210, §§ 66-67).

The Court would emphasise that the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicant (ibid., p. 1211, § 69).

The Court has carried out a comparative analysis of the one hundred Court of Cassation judgments available to date. It has noted that the principles set forth in the two cases cited by the applicants (see “Relevant domestic law and practice” above) have been consistently applied: in other words, the right to a hearing within a reasonable time has not been regarded as a fundamental right and the Convention and the Strasbourg case-law are not directly applicable in relation to just satisfaction.

The Court has not found any instances in which the Court of Cassation has entertained a complaint to the effect that the amount awarded by the Court of Appeal was insufficient in relation to the alleged damage or inadequate in the light of the Strasbourg institutions’ case-law. Such complaints have been dismissed by the Court of Cassation, being treated either as factual issues outside its jurisdiction or as issues arising on the basis of provisions that are not directly applicable.

The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, p. 18, § 36, and Waite and Kennedy v. Germany GC, no. 26083/94, § 50, ECHR 1999-I). It accordingly safeguards everyone’s right to a “hearing within a reasonable time”.

The right to a hearing within a “reasonable time”, as protected by Article 6 § 1 of the Convention, is a fundamental right and an imperative for all proceedings to which Article 6 applies; in so providing, the Convention underlines the importance of administering justice without delays which might jeopardise its effectiveness and credibility (see Pélissier and Sassi v. France GC, no. 25444/94, § 74, ECHR 1999-II).

Having regard to the foregoing, the Court concludes that there would have been no point in the applicants’ appealing to the Court of Cassation as their complaint concerned the amount of compensation and thus fell within the categories referred to above. Furthermore, the applicants risked being ordered to pay costs.

In conclusion, the Court considers that in the instant case the applicants were not required to appeal to the Court of Cassation for the purpose of exhausting domestic remedies. Accordingly, the Government’s first objection must be dismissed.

That conclusion does not, however, call into question the obligation to lodge a claim for compensation under the Pinto Act with the Court of Appeal and the Court of Cassation, provided that it is clear from the case-law of the national courts that they apply the Act in keeping with the spirit of the Convention and, consequently, that the remedy is effective.

The Court must next examine the Government’s second objection, based on Article 34 of the Convention. The issue of whether a person may still claim to be the victim of an alleged violation of the Convention essentially entails on the part of the Court an ex post facto examination of his or her situation. In this connection, the question whether he or she has received reparation for damage caused – comparable to just satisfaction as provided for under Article 41 of the Convention – is an important issue. It is the Court’s settled case-law that where the national authorities have found a violation and their decision constitutes appropriate and sufficient redress, the party concerned can no longer claim to be a victim within the meaning of Article 34 of the Convention.

The Court accordingly considers that an applicant’s status as a victim may depend on compensation being awarded at domestic level on the basis of the facts about which he or she complains before the Court (see Andersen v. Denmark, no. 12860/87, and Frederiksen and Others v. Denmark, no. 12719/87, Commission decisions of 3 May 1988; Normann v. Denmark (dec.), no. 44704/98, 14 June 2001; and Jensen and Rasmussen v. Denmark (dec.), no. 52620/99, 20 March 2003) and on whether the domestic authorities have acknowledged, either expressly or in substance, the breach of the Convention. Only when those two conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, p. 32, §§ 69 et seq., and Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001-X).

The Court further reiterates that Article 34 of the Convention requires applicants to be personally affected by the measure of which they complain, and that the provision cannot be used to bring an actio popularis before the Court. Moreover, the conditions for lodging an application are not necessarily the same as national criteria relating to locus standi (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 138, ECHR 2000-VIII).

In the instant case the Reggio di Calabria Court of Appeal acknowledged in its decision of 1 July 2001 that the length of the proceedings instituted by the applicants had been excessive and awarded them an overall sum of EUR 2,450 – that is, approximately EUR 600 each.

The Court considers that the Court of Appeal’s acknowledgment of the excessive length of the proceedings satisfies in substance the first condition laid down in the Court’s case-law: acceptance by the authorities that there has been an infringement of a right protected by the Convention.

As regards the second condition, namely whether the authorities have provided appropriate redress for the wrong suffered by the applicants, the Court notes that the applicants argued before it that the amount awarded by the Court of Appeal could not be regarded as sufficient to make good the alleged damage and breach.

The Court notes that it has held in numerous Italian length-of-proceedings cases that appropriate relief for the damage sustained should always take the form of financial compensation. In that context, in cases similar to the present one – for example, De Pilla v. Italy (no. 49372/99, 25 October 2001) and Tartaglia v. Italy (no. 48402/99, 23 October 2001) – the amounts awarded by the Court have been significantly higher. In those two cases it awarded ITL 10,000,000 (approximately EUR 5,000) and ITL 14,000,000 (approximately EUR 7,000) respectively.

It cannot be disputed that the assessment of the length of proceedings and the effects thereof, particularly as regards non-pecuniary damage, does not lend itself to precise quantification and must by its very nature be carried out on an equitable basis. The Court consequently accepts that judicial or other authorities may calculate compensation in a length-of-proceedings case in a manner not entailing strict and formalistic application of the criteria adopted by the Court. However, in the present case the amount awarded to the applicants by the Reggio di Calabria Court of Appeal does not bear a reasonable relationship to the amounts awarded by the Court in the similar cases cited above, those amounts being more than ten times higher than the amount awarded to the applicants by the Court of Appeal.

Although the margin of appreciation enjoyed by the national courts should be observed, those courts must also comply with the Court’s case-law by awarding corresponding amounts.

Having regard to the evidence before it, the Court considers that there is no justification for such a discrepancy between the Strasbourg case-law and the application of the Pinto Act in the instant case. Consequently, the sum awarded to the applicants cannot be regarded as adequate and hence capable of making good the alleged violation.

It follows that the applicants can claim to be victims within the meaning of Article 34 of the Convention and that the Government’s second objection should be dismissed.

4.  The merits

The Government observed that the length of the proceedings could not be considered excessive, in view of the objective difficulties that had arisen during their conduct, such as the new law on expropriation, the death of Mr A. Scordino and the lack of judges. The Government observed in that connection that the case had been dealt with by three successive investigating judges.

The applicants disputed the Government’s submissions.

The Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of fact and law which cannot be resolved at this stage in the examination of the application, but require examination on the merits. It follows that this part of the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2.  The applicants complained of an infringement of their right to the peaceful enjoyment of their possessions in that compensation had been paid to them a long time after the confiscation of their land and had not been sufficient, having been calculated on the basis of section 5 bis of Law no. 359/1992, applied retrospectively. They alleged a violation of Article 1 of Protocol No. 1, which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The applicants also complained that the enactment of Law no. 359/1992 and its application in their case had amounted to interference by the legislature in breach of Article 6 of the Convention, the relevant parts of which provide:

“1.  In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

The Government argued that the application of section 5 bis of Law no. 359/1992 in the instant case did not raise any issues under Article 1 of Protocol No. 1 and Article 6 of the Convention.

They observed in that connection that in the calculation of compensation for expropriation, a balance had to be struck between private interests and the general interest. Accordingly, the amount of compensation deemed adequate could be lower than the market value of the land in question, as, indeed, the Constitutional Court had acknowledged (judgments nos. 283 of 16 June 1993, 80 of 7 March 1996, and 148 of 30 April 1999).

Relying on the Court’s judgments in The Holy Monasteries v. Greece (judgment of 9 December 1994, Series A no. 301-A), Lithgow and Others v. the United Kingdom (judgment of 8 July 1986, Series A no. 102), and James and Others v. the United Kingdom (judgment of 21 February 1986, Series A no. 98), the Government submitted that the present case should be examined in the light of the principle that public-interest grounds (such as economic reform or policies designed to promote social justice) could militate in favour of awarding compensation below the full market value.

In the Government’s submission, that reflected a political desire to establish a system going beyond traditional nineteenth-century liberalism. The fundamental issue was whether the gap between the market value and the compensation paid was reasonable and justified.

The Government acknowledged that the provision in issue, section 5 bis, had been guided by budgetary considerations. They nonetheless remarked that, in view of its temporary nature, the provision had been declared constitutional by the Constitutional Court.

The Government observed that the land’s market value had not been excluded from the calculation used to determine the compensation payable, but had been adjusted by another criterion, the ground rent calculated on the value entered in the land register.

They submitted in conclusion that the system applied in the instant case for calculating the compensation payable for the expropriation was not unreasonable and had not upset the necessary fair balance.

As to the time that had elapsed between the expropriation and the payment of compensation, the Government noted that the proceedings in the Reggio di Calabria Court of Appeal had not been instituted until 1990 and contended that the applicants could have brought a civil action from 1983 onwards. That effectively meant that they themselves had contributed to the delay in payment of the compensation.

In addition, the Government observed that the damage caused by the passing of time had been made good by the payment of interest.

The Government further maintained that the retrospective application of section 5 bis of Law no. 359/1992 was compatible with the Convention. They pointed out in that connection that, in accordance with the Convention institutions’ case-law and Italian law, the principle that laws should not have retrospective effect was not absolute. In the instant case, the law in issue had been enacted against a background in which the criterion of market value for the calculation of compensation for expropriation had already been revised twice by the Italian parliament. After the Constitutional Court had abrogated those laws and the criterion of market value as laid down in Law no. 2359/1865 had been deemed applicable again in accordance with the Court of Cassation’s case-law, the law in issue had filled the legal vacuum created by the Constitutional Court’s judgments. The enactment of Law no. 359/1992 had therefore responded to that need.

The Government submitted, lastly, that from 1993 onwards the compensation received by the applicants could have been 40% higher if they had accepted the offer made to them by the authorities. In conclusion, the Government submitted that the applicants’ complaint was ill-founded.

The applicants observed that the compensation they had been paid for the expropriation corresponded to half the market value of the land and that that amount had subsequently been decreased by a further 20% once tax had been deducted at source pursuant to Law no. 413/1991. As a result, the amount they had actually received represented 40% of the value of their property.

In the applicants’ submission, the compensation thus received could not be regarded as bearing a reasonable relationship to the value of the property. They therefore considered that they had borne a disproportionate burden.

The applicants pointed out that Reggio di Calabria District Council had not made them an offer of compensation until 1989, six years after the expropriation order, and that the possibility of lodging an objection with the Court of Appeal had been open to them from that date only.

The applicants also asserted that their land had been expropriated in order to allow a cooperative society to build accommodation there for private individuals, who, in accordance with domestic law (section 20 of Law no. 179/1992), would be free to sell their homes at market value five years later. The expropriation of the applicants’ land had therefore benefited private individuals.

Next, the applicants observed that section 5 bis had been declared constitutional by the Constitutional Court because it was a temporary measure designed to deal with a specific situation. The provision had, however, been in force for more than ten years.

In addition, the applicants pointed out that the subsequent 40% deduction prescribed in section 5 bis for persons who did not accept an offer of compensation had not been applied in their case.

The applicants further observed that the amount they had been awarded had resulted from the retrospective application of two laws enacted long after their land had been expropriated. They accordingly considered that to be a further reason for finding a violation of Article 1 of Protocol No. 1.

Lastly, the applicants argued that the enactment and application of section 5 bis of Law no. 359/1992 had been incompatible with Article 6 of the Convention because there had been interference by the legislature in breach of the requirement of lawfulness. They submitted in that connection that the law in issue had not served a vital public interest and had been designed purely to settle pending proceedings in a manner advantageous to the respondent authorities.

The Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of fact and law which cannot be resolved at this stage in the examination of the application, but require examination on the merits. It follows that this part of the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

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