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You are here: BAILII >> Databases >> European Court of Human Rights >> IDROCALCE S.R.L. v. ITALY - 12088/86 [1992] ECHR 23 (27 February 1992) URL: http://www.bailii.org/eu/cases/ECHR/1992/23.html Cite as: [1992] ECHR 23

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In the case of Idrocalce S.r.l. 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 29 October 1991 and

24 January 1992,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 8/1991/260/331. 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.

_______________

PROCEDURE

1. The case was referred to the Court on 8 March 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. 12088/86) against the Italian Republic lodged with

the Commission under Article 25 (art. 25) by an Italian company,

Idrocalce S.r.l., on 1 April 1986.

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 company

stated that it wished to take part in the proceedings and designated

the lawyer who would represent it (Rule 30).

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, 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,

Lorenzi, Bernardini and Gritti and Tumminelli* should be heard by

the same Chamber.

_______________

* Cases nos. 3/1991/255/326 to 7/1991/259/330; 9/1991/261/332 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; 61/1991/313/384

_______________

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 hearing, 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"), the Delegate of

the Commission and the applicant's lawyer on the organisation of the

proceedings (Rules 37 para. 1 and 38). Pursuant to the order made

in consequence, the Registrar received the memorials of the

applicant and the Government on 16 July 1991. By a letter received

on 22 August, the Secretary to the Commission informed the Registrar

that the Delegate would submit oral observations.

6. On 28 August the Commission produced the file on the

proceedings before it, as requested by the Registrar on the

President's instructions.

7. In accordance with the decision of the President - who had

given the applicant leave to use the Italian language

(Rule 27 para. 3) -, the hearing took place in public in the Human

Rights Building, Strasbourg, on 29 October. The Court had held a

preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr G. Raimondi, magistrato,

seconded to the Diplomatic Legal

Service of the Ministry of Foreign Affairs, Co-Agent,

Mr G. Manzo, magistrato, seconded to the

Ministry of Justice,

Mrs A. Passannanti, magistrato, seconded to the

Ministry of Justice, Counsel;

(b) for the Commission

Mr J.A. Frowein, Delegate;

(c) for the applicant

Mr G. Larato, avvocato, Counsel.

The Court heard addresses by Mr Raimondi and Mrs Passannanti for the

Government, by Mr Frowein for the Commission and by Mr Larato for

the applicant company, as well as their answers to its question.

8. On 10 October the Government had filed their observations on

the applicant's claims for just satisfaction (Article 50 of the

Convention) (art. 50); on 5 November the Commission lodged its

observations on those claims.

AS TO THE FACTS

9. The applicant is a limited company in the process of

liquidation. The facts established by the Commission pursuant to

Article 31 para. 1 (art. 31-1) of the Convention are as follows

(paragraphs 16-26 of its report):

"16. By a writ served on 26 September and 2 October 1980, the

applicant company took proceedings before the Taranto District Court

against Mr N., its debtor, and against the E. company, for a

declaration that the latter owed N. the sum of 30,000,000 Italian

lire. The purpose of its action was to have deducted from that sum

the amount which it claimed to be owed by Mr N.

17. At the same time the applicant company issued a writ against

the Istituto Nazionale della Previdenza Sociale (INPS) which was

concerned in the case as Mr N.'s creditor.

18. The investigation commenced at the hearing of

6 November 1980. Mr N. and the E. company did not appear and were

found in default. Three further hearings took place on 19 February,

23 April and 9 July 1981, on which date the applicant and the INPS

made their final submissions and the case was referred to the

appropriate chamber of the court.

19. After hearing the applicant and the INPS at the sitting on

26 March 1982, the court chamber deemed it necessary to examine

witnesses (whom the applicant had reserved the right to identify at

a later stage) in order to establish whether Mr N. was owed money by

the E. company. By order of 30 April 1982 the case was remitted to

the investigating judge.

20. The sole witness finally identified was summoned to the

hearing of 24 June 1982 and then to that of 18 November 1982 but did

not appear. On 17 February 1983 the investigating judge ordered the

interruption of the proceedings on account of Mr N.'s bankruptcy.

21. On 21 February 1983 the applicant reopened the proceedings

which resumed at the hearing of 28 April 1983. On 14 July

and 1 December 1983 the proceedings in the case were adjourned at

the request of the INPS as the applicant and the other parties had

not appeared in court. At the hearing on 1 March 1984 the applicant

and the INPS made their final submissions and the case was referred

to the appropriate chamber of the court.

22. Having heard submissions by the applicant and the INPS at

the hearing of 2 November 1984, the chamber found that the interview

which it had ordered on 30 April 1982 had not been carried out and

by order of 16 November 1984 remitted the case for a second time to

the investigating judge.

23. The witness to be examined was summoned to the hearing

of 14 Februarry 1985 but did not appear. The investigating judge

then instructed the police to ensure that the witness attended the

hearing of 16 May 1985. However, the instruction was not carried

out and the hearing did not take place until 3 October 1985. By

then the case was ready for decision; the applicant and the INPS

accordingly made their final submissions at the hearing on

9 January 1986.

24. The hearing before the appropriate chamber of the court took

place on 30 January 1987 and by decision of 13 February 1987 the

applicant's claim was dismissed on account of Mr N.'s bankruptcy.

The text of the decision was lodged with the court registry

on 11 May 1987.

25. Notice of the applicant's appeal against this decision was

filed with the Lecce Court of Appeal on 31 July and 5 August 1987.

26. Particulars of the conduct of the investigation before the

appellate court have not been given, but it appears that judgment in

the case was reserved at the hearing of 13 April 1989. On

27 April 1989 the Court of Appeal upheld the appealed decision by a

ruling filed with the court registry on 10 June 1989. ... ."

10. According to the information supplied to the European Court

by the applicant, no appeal has been lodged in the Court of

Cassation.

PROCEEDINGS BEFORE THE COMMISSION

11. Idrocalce S.r.l. lodged its application with the Commission

on 1 April 1986. It complained of the length of the civil

proceedings brought by it and relied on Article 6 para. 1 (art. 6-1)

of the Convention.

12. On 11 May 1990 the Commission declared the application

(no. 12088/86) admissible. In its report of 5 December 1990

(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*.

_______________

* Note by the Registrar: for practical reasons this annex will

appear only with the printed version of the judgment (volume 229-F

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

13. At the hearing the Government confirmed the submission put

forward in their memorial, in which they requested the Court to hold

"that there [had] been no violation of the Convention in the present

case".

AS TO THE LAW

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

14. The applicant company claimed that its 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 disputed this view, whereas the Commission accepted

it.

15. The period to be taken into consideration began on

26 September 1980 when the proceedings were instituted against Mr N.

in the Taranto District Court; it ended on 10 June 1990 when the

judgment of the Court of Appeal became final (see the Pugliese (II)

v. Italy judgment of 24 May 1991, Series A no. 206-A, p. 8,

para. 16).

16. 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.

17. The Government invoked the conduct of the applicant company

- which in particular had not requested that its case be dealt with

more rapidly - and Mr N.'s bankruptcy, which led to the interruption

of the proceedings.

18. The Court notes in the first place that this interruption

was barely more than two months (17 February - 28 April 1983). The

applicant, for its part, undoubtedly contributed to the slowness of

which it complained by reserving the right to identify at a later

stage the witnesses cited, by not appearing at the hearing of

1 December 1983 and by waiting from 11 May to 31 July 1987 before

filing an appeal.

However, there were three long periods of stagnation at first

instance, a total of twenty-nine months, between the hearings for

the final submissions to the investigating judge and the trial

hearings before the Taranto District Court (9 July 1981 -

26 March 1982, 1 March - 2 November 1984 and 9 January 1986 -

30 January 1987). In addition, the toing and froing between the

investigating judge and the competent chamber clearly did not assist

the progress of the case.

Furthermore, the sole witness identified by the applicant was heard

only after sixteen months of hesitation (24 June 1982

- 17 February 1983 and 14 February 1985 - 3 October 1985). Yet this

measure was a step in judicial proceedings supervised by a judge who

was responsible for the preparation and the speedy conduct of the

trial (see the Capuano v. Italy judgment of 25 June 1987, Series A

no. 119, p. 13, para. 30). It is true that he asked the carabinieri

to ensure that the person concerned appeared on 16 May 1985, but for

reasons of which the Court is unaware they failed to carry out this

order.

The participants in the Strasbourg proceedings have supplied the

Court with very few details on the conduct of the appeal

proceedings. The Court confines itself to noting that it took one

and a half months for the judgment of the Lecce Court of Appeal to

be filed with the registry (27 April - 10 June 1989); the judgment

of the Taranto District Court had already taken nearly three months

(13 February - 11 May 1987).

19. Accordingly, the Court cannot regard as "reasonable" the

lapse of time in the present case.

There has therefore been a violation of Article 6 para. 1

(art. 6-1).

II. APPLICATION OF ARTICLE 50 (art. 50)

20. 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

21. The applicant claimed in the first place, for damage, a

minimum of 25,000,000 Italian lire.

The Government considered that the company had not established the

existence of a causal connection between the alleged violation and

any pecuniary damage. As to non-pecuniary damage, a finding of a

violation would constitute sufficient just satisfaction for the

purposes of Article 50 (art. 50).

22. The Court shares this view.

B. Costs and expenses

23. Idrocalce S.r.l. also sought 8,040,000 lire for 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 sum claimed in its entirety.

C. Interest

24. 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.

25. 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.

D. Implementation of legislative measures

26. The applicant requested finally that the present judgment

should include a declaration ordering the Italian State to adopt

legislation with a view to implementing all the necessary measures

to ensure an effective protection of the human rights violated in

this case - or at least a firm and explicit warning to this effect.

The Delegate of the Commission did not make any observations on this

point.

The Court points out, like the Government, that under the Convention

it does not have jurisdiction to make such an order to a Contracting

State (see in particular, mutatis mutandis, the Vocaturo v. Italy

judgment of 24 May 1991, Series A no. 206-C, p. 33, para. 21).

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

any non-pecuniary damage, sufficient just satisfaction for the

purposes of Article 50 (art. 50);

3. Holds that the respondent State is to pay to the applicant,

within three months, 8,040,000 (eight million and forty thousand)

Italian lire for costs and expenses;

4. Dismisses the remainder of the applicant's claim.

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