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You are here: BAILII >> Databases >> European Court of Human Rights >> ZANGHÌ v. ITALY - 11491/85 [1991] ECHR 22 (19 February 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/22.html Cite as: [1991] ECHR 22

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In the Zanghì case*,

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 J. Cremona,

Mr Thór Vilhjálmsson,

Mrs D. Bindschedler-Robert,

Mr F. Gölcüklü,

Mr C. Russo,

Mr N. Valticos,

Mr S.K. Martens,

Mr J.M. Morenilla,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 4 October 1990 and

24 January 1991,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 3/1990/194/254. 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 Protocol No. 8, which came into force on

1 January 1990.

*** The amendments to the Rules of Court which came into force

on 1 April 1989 are applicable to this case.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 16 February 1990, 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. 11491/85) against Italy lodged with the Commission

under Article 25 (art. 25) by a national of that State, Mr Claudio

Zanghì, on 16 April 1985.

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 and Article 1 of Protocol No. 1 (art. 6-1, P1-1).

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

wished to take part in the proceedings. He was granted leave to

present his own case (Rule 30 para. 1, second sentence).

3. On 21 February 1990 the President of the Court decided, under

Rule 21 para. 6 and in the interests of the proper administration

of justice, that a single Chamber should be constituted to consider

the instant case and the Brigandì and Santilli cases*.

_______________

* Note by the Registrar. Cases nos. 2/1990/193/253 and

5/1990/196/256.

_______________

4. 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. 3 (b)). On 26 March 1990, in the presence of

the Registrar, the President drew by lot the names of the other

seven members, namely Mr J. Cremona, Mr Thór Vilhjálmsson, Mrs D.

Bindschedler-Robert, Mr F. Gölcüklü, Mr R. Bernhardt, Mr S.K.

Martens and Mr J.M. Morenilla (Article 43 in fine of the Convention

and Rule 21 para. 4) (art. 43). Subsequently Mr N. Valticos,

substitute judge, replaced

Mr Bernhardt, who was unable to take part in the consideration of

the case (Rules 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 Registrar, consulted the Agent

of the Italian Government ("the Government"), the Delegate of the

Commission and the applicant on the need for a written procedure

(Rule 37 para. 1). In accordance with the order made in

consequence, the Registrar received the applicant's memorial on 16

July 1990 and the Government's memorial on 31 July. In a letter

received on 31 August, the Secretary to the Commission informed the

Registrar that the Delegate would submit his observations at the

hearing.

6. Having consulted, through the Registrar, those who would be

appearing before the Court, the President directed on 29 August

1990 that the oral proceedings should open on 3 October (Rule 38).

7. On 31 August and 3 October the Commission produced the file on

the proceedings before it, as the Registrar had requested on the

President's instructions.

8. The hearing took place in public in the Human Rights Building,

Strasbourg, on the appointed day. 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,

Mr G. Manzo, magistrato, on secondment to the

Ministry of Justice, Counsel;

(b) for the Commission

Mr F. Martinez, Delegate;

(c) the applicant, Mr C. Zanghì, in person,

assisted by Mr V. Marone, avvocato.

The Court heard addresses by the above-mentioned

representatives.

AS TO THE FACTS

9. Mr Claudio Zanghì, a university professor, lives in Rome.

In 1982, as co-owner of a secondary residence situated inland

from Catania (Sicily), he complained to a neighbour, Mrs D., that

he had suffered damage from works she had had carried out on a

property adjoining his own. In particular, a 3-foot dividing wall

collapsed. Mrs D. rebuilt the wall but to a height of six feet,

thereby depriving Mr Zanghì of a view of the sea.

10. On 3 April 1982 Mr Zanghì brought proceedings in the Catania

District Court. He sought a declaration that there was a right of

view for the benefit of his property, an injunction requiring his

neighbour to restore the situation to what it had been formerly and

damages.

11. Preparation of the case for trial began on 25 May 1982 and

continued until 22 January 1985; the parties then made their final

submissions to the judge in charge of the preparation of the case

(giudice istruttore), who sent the case for trial, the hearing to

take place in the District Court on 29 May 1986.

12. When the day came, one of the judges had been transferred and

the court therefore adjourned the case to 10 March 1988, when

judgment was reserved.

13. The judgment was delivered on 17 March 1988 and filed in the

registry on 9 May; in it the court made the declarations and orders

sought by the applicant, who notified it to the defendant

on 19 July.

14. On 27 September 1988 Mrs D. appealed. Hearings took place on

20 January 1989, 18 May 1989 and 28 May 1990 before the

appeal-court judge responsible for preparing the case (consigliere

istruttore), who then sent the parties to the Court of Appeal to

make their submissions. According to the information supplied to

the European Court, the Court of Appeal has not yet given judgment.

PROCEEDINGS BEFORE THE COMMISSION

15. In his application of 16 April 1985 to the Commission

(no. 11491/85) Mr Zanghì complained of the length of the civil

proceedings he had instituted and of the failure to respect his

entitlement to the peaceful enjoyment of his possessions; he

relied on Article 6 of the Convention and Article 1 of Protocol

No. 1 (art. 6-1, P1-1).

16. The Commission declared the application admissible on

5 December 1988. In its report of 11 December 1989 (made under

Article 31) (art. 31) it expressed the unanimous opinion that there

had been a violation of Article 6 para. 1 (art. 6-1) of the

Convention but not of Article 1 of Protocol No. 1 (P1-1). The full

text of the Commission's opinion and of the separate opinion

contained in the report is reproduced as an annex to this

judgment*.

_______________

* Note by the Registrar. For practical reasons this annex will

appear only with the printed version of the judgment (volume 194-C

of Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

17. At the hearing on 3 October 1990 the Government maintained the

final submission in their memorial, in which they requested the

Court to hold that there had been no violation of the Convention or

of Protocol No. 1 in the instant case.

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 para. 1 (art. 6-1)

18. Mr Zanghì submitted that his civil action was not tried within

a "reasonable time" as required by Article 6 para. 1 (art. 6-1) of

the Convention, which provides:

"In the determination of his civil rights and obligations

..., everyone is entitled to a ... hearing within a reasonable

time by [a] ... tribunal ..."

The Government rejected this submission but the Commission

accepted it.

19. The proceedings, which began on 3 April 1982 when Mrs D. was

summoned before the Catania District Court, remain pending.

20. The participants in the proceedings presented argument as to

the way in which the various criteria employed by the Court in this

context - such as the degree of complexity of the case, the conduct

of the applicant and that of the competent authorities - should

apply in the present case.

21. Under Article 6 para. 1 (art. 6-1) of the Convention everyone

has the right to a final decision, within a reasonable time, on

disputes (contestations) over his civil rights and obligations.

The Contracting States accordingly have the obligation to organise

their legal systems so as to allow the courts to comply with this

requirement (see, as the most recent authority, the Unión

Alimentaria Sanders SA judgment of 7 July 1989, Series A no. 157,

pp. 14-15, para. 38).

The Court points out that, under its case-law on the subject,

the reasonableness of the length of proceedings is to be assessed

in the light of the particular circumstances of the case. In this

instance the circumstances call for an overall assessment (see,

mutatis mutandis, the Obermeier judgment of 28 June 1990, Series A

no. 179, p. 23, para. 72).

As the case was not a complex one, the Court cannot regard as

"reasonable" a lapse of time which has already amounted to nearly

nine years.

There has accordingly been a breach of Article 6 para. 1

(art. 6-1).

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)

22. The applicant claimed that the length of the proceedings in

question deprived him of the enjoyment of his property. He relied

on Article 1 of Protocol No. 1 (P1-1), 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."

Neither the Government nor the Commission shared this view.

23. In view of the circumstances of the case and the conclusion

reached in paragraph 21 above, the Court considers it unnecessary

to determine also the complaint based on Article 1 of Protocol

No. 1 (P1-1).

III. APPLICATION OF ARTICLE 50 (art. 50)

24. Under 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."

Mr Zanghì said he was making no claim for pecuniary

compensation for the breach of Article 6 para. 1 (art. 6-1) and

that out of devotion to the cause of human rights he was not

seeking reimbursement of the fees and expenses paid during the

proceedings before the Convention institutions. On the other hand,

he sought compensation of 7,950,000 Italian lire in respect of the

pecuniary damage resulting from the alleged breach of Article 1 of

Protocol No. 1 (P1-1).

The Commission and the Government expressed no view on the

matter.

25. It is still possible that the national courts, before which

the applicant's action remains pending, may make reparation for the

financial consequences of failing to try the case within a

reasonable time (see, mutatis mutandis, the Brigandì judgment of

today's date, para. 34). That being so, and in the circumstances

of the case, it would appear appropriate, as matters stand, to

dismiss the claim.

26. The applicant also requested the Court to indicate to the

respondent State measures that should be introduced to remedy the

dilatoriness he alleged to be characteristic of the administration

of justice in Italy. The Court recalls that it is for the State to

choose the means to be used in its domestic legal system to redress

the situation that has given rise to the violation of the

Convention (see, mutatis mutandis, the Belilos judgment of

29 April 1988, Series A no. 132, p. 33, para. 78).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a breach of Article 6 para. 1

(art. 6-1) of the Convention;

2. Holds that it is unnecessary to rule on the complaint based

on Article 1 of Protocol No. 1 (P1-1);

3. Dismisses, as matters stand, the claim for just satisfaction.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 19 February

1991.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar