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You are here: BAILII >> Databases >> European Court of Human Rights >> LESTINI v. ITALY - 12859/87 [1992] ECHR 5 (26 February 1992) URL: http://www.bailii.org/eu/cases/ECHR/1992/5.html Cite as: [1992] ECHR 5

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In the case of Lestini 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 Thór Vilhjálmsson,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr B. Walsh,

Mr C. Russo,

Mr A. Spielmann,

Mr N. Valticos,

Mr S.K. Martens,

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

Registrar,

Having deliberated in private on 28 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 54/1991/306/377. 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 19 April 1991 by the

European Commission of Human Rights ("the Commission"), within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 12859/87) against the Italian Republic lodged with

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

Mrs Fernanda Lestini, on 10 April 1987.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby Italy recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether the

facts of the case disclosed a breach by the respondent State of its

obligations under Article 6 para. 1 (art. 6-1).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that

she wished to take part in the proceedings and designated the lawyer

who would represent her (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 Gilberti,

Nonnis, Trotto, Nibbio, Borgese, Biondi, Macaluso, Monaco,

Cattivera, Seri, Manunza, Gori, Casadio, Testa, Covitti, Zonetti,

Simonetti and Dal Sasso* should be heard by the same Chamber.

_______________

* Cases nos. 19/1991/271/342; 23/1991/275/346; 26/1991/278/349;

28/1991/280/351 to 32/1991/284/355; 34/1991/286/357;

35/1991/287/358; 37/1991/289/360; 45/1991/297/368; 52/1991/304/375;

53/1991/305/376; 55/1991/307/378 to 57/1991/309/380; 60/1991/312/383

_______________

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 Thór Vilhjálmsson,

Mr F. Matscher, Mr J. Pinheiro Farinha, Mr L.-E. Pettiti,

Mr B. Walsh, Mr N. Valticos and Mr S.K. Martens (Article 43 in fine

of the Convention and Rule 21 para. 4) (art. 43).

Subsequently, Mr A. Spielmann, substitute judge, replaced

Mr Pinheiro Farinha, who had resigned and whose successor at the

Court had taken up his duties before the hearing (Rules 2 para. 3

and 22 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 Government's memorial on

17 July 1991 and the applicant's memorial on 25 July. By a letter

received on 22 September, the Secretary to the Commission informed

the Registrar that the Delegate would submit oral observations.

6. On 29 August the Commission had 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 28 October 1991. 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. Angelozzi, avvocato, Counsel,

Mr M. de Stefano, avvocato, Adviser.

The Court heard addresses by Mr Raimondi and Mr Manzo for the

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

Mr de Stefano for the applicant, as well as their answers to its

questions.

8. On 14 October the Government had lodged their observations

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

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

observations on those claims.

AS TO THE FACTS

9. Mrs Fernanda Lestini is an Italian national and resides at

Albano Laziale (Rome). She is unemployed. The facts established by

the Commission pursuant to Article 31 para. 1 (art. 31-1) of the

Convention are as follows (paragraphs 17-20 of its report):

"17. On 11 March 1985 the applicant took proceedings against the

Istituto Nazionale della Previdenza Sociale (INPS) before the Rome

magistrate's court (pretore) in order to establish her disability

pension right.

18. The investigation opened at the hearing of 19 June 1985,

when the magistrate's court ordered a medical opinion. The expert

appointed was sworn in at the hearing of 3 July 1985 and lodged the

opinion on 5 November 1985. The hearing of 27 November 1985 ended

with the dismissal of the applicant's claim by the magistrate's

court. The text of the decision was lodged with the registry

on 13 December 1985.

19. On 23 September 1986 the applicant appealed against that

decision and on 29 September 1986 the presiding judge of the Rome

District Court fixed the hearing before the competent court chamber

for 25 October 1988. On that date the applicant requested an

adjournment and the hearing was postponed to 2 May 1989.

20. A hearing was held on 17 April 1990, when the court

deliberated. At the close of the hearing, the District Court

delivered judgment. The text of the judgment was lodged with the

registry on 13 December 1990.

21. ... ."

10. According to the information supplied to the European Court

by the applicant, the District Court's judgment became final on

13 December 1991, there having been no appeal to the Court of

Cassation.

PROCEEDINGS BEFORE THE COMMISSION

11. Mrs Lestini lodged her application with the Commission on

10 April 1987. She complained of the length of the civil

proceedings brought by her and relied on Article 6 para. 1

(art. 6-1) of the Convention.

12. On 11 May 1990 the Commission declared the application

(no. 12859/87) admissible. In its report of 5 March 1991

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

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

full text of the Commission's opinion is reproduced as an annex to

this judgment*.

_______________

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

appear only with the printed version of the judgment (volume 228-E

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 claimed that her 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

11 March 1985 when the proceedings were instituted against the INPS

in the magistrate's court. It ended on 13 December 1991 when the

Rome District Court's judgment 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 referred to the complexity of the facts and

to Mrs Lestini's conduct. She had caused several adjournments. In

addition, they invoked the excessive workload of the competent

courts and the latter's duty in principle to deal with cases in the

order in which they were registered.

According to the applicant, the case was a simple one and her

requests to have the hearings adjourned were prompted by the need to

prove that she had duly paid her contributions.

18. The Court stresses that special diligence is necessary in

employment disputes, which include pensions disputes (see, inter

alia, mutatis mutandis, the Vocaturo v. Italy judgment of

24 May 1991, Series A no. 206-C, p. 32, para. 17). Italy moreover

acknowledged this by amending, in 1973, the special procedure laid

down in this field and by introducing, in 1990, emergency measures

intended to speed up the conduct of such proceedings.

The Government pleaded the backlog of cases in the relevant courts,

but Article 6 para. 1 (art. 6-1) imposes on the Contracting States

the duty to organise their legal systems in such a way that their

courts can meet each of its requirements (see the same judgment,

ibid.).

This case did not give rise to any complex question of fact or law.

Moreover the proceedings were conducted at a normal pace in the

magistrate's court and the State cannot be held responsible for the

period of more than ten months which elapsed between the filing of

the decision of 27 November 1985 and the lodging of the applicant's

appeal on 23 September 1986; nor is it answerable for the year which

went by before the judgment of 17 April 1990 became final.

On the other hand, the appeal proceedings remained dormant for more

than twenty-five months. On 29 September 1986 the President of the

Rome District Court set down the first hearing before the competent

chamber for 25 October 1988 and it does not appear from the evidence

that any investigative mesures were taken prior to that hearing. No

doubt Mrs Lestini subsequently requested one or several

adjournments; the only one mentioned in the Commission's report led

to a delay of over six months (25 October 1988 - 2 May 1989).

Nevertheless it is hard to understand why it should have taken

nearly eight months (17 April - 13 December 1990) for the text of

the District Court's judgment to be filed with the registry.

19. Accordingly and in view of what was at stake in the

proceedings for the applicant, 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 8,000,000 Italian

lire for damage.

In the Government's contention, she sustained no pecuniary damage.

As to non-pecuniary damage, a finding of a violation would

constitute sufficient just satisfaction.

22. There is no evidence that the violation found caused

Mrs Lestini pecuniary damage. On the other hand, she must have

suffered a degree of non-pecuniary damage for which the Court,

making an assessment on an equitable basis, awards her

3,000,000 lire.

B. Costs and expenses

23. The applicant also sought 3,000,000 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 her 2,000,000 lire under this head.

C. Interest

24. Mrs Lestini requested finally that interest be paid on the

sums awarded, at the statutory rate in force in her country and in

respect of the period running from the delivery of the present

judgment to the payment of such sums by the national authorities.

The Commission invited the Court to fix for the Government

- who did not give their opinion - a compulsory time-limit for

executing the 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.

FOR THESE REASONS, THE COURT

1. Holds by six votes to three that there has been a violation

of Article 6 para. 1 (art. 6-1);

2. Holds unanimously that the respondent State is to pay to the

applicant, within three months, 3,000,000 (three million) Italian

lire for non-pecuniary damage and 2,000,000 (two million) lire for

costs and expenses;

3. 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 February 1992.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the Convention

and Rule 53 para. 2 of the Rules of Court, the dissenting opinion of

Mr Thór Vilhjálmsson, Mr Russo and Mr Valticos is annexed to the

present judgment.

Initialled: R. R.

Initialled; M.-A. E.

DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON, RUSSO AND VALTICOS

(Translation)

We are unable to agree with the majority in this case because we do

not consider that the sum of the delays for which the State can be

held responsible amounts to an unreasonable time in this instance.