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You are here: BAILII >> Databases >> European Court of Human Rights >> CAPUANO v. ITALY - 9381/81 [1987] ECHR 10 (25 June 1987) URL: http://www.bailii.org/eu/cases/ECHR/1987/10.html Cite as: [1987] ECHR 10

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In the Capuano case*,

_______________

* Note by the Registrar: The case is numbered 7/1986/105/153. The

second figure indicates the year in which the case was referred to the

Court and the first figure its place on the list of cases referred in

that year; the last two figures indicate, respectively, the case's

order on the list of cases and of originating applications (to the

Commission) referred to the Court since its creation.

_______________

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,

Mrs. D. Bindschedler-Robert,

Mr. F. Matscher,

Mr. L.-E. Pettiti,

Mr. C. Russo,

Mr. J. Gersing,

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

Registrar,

Having deliberated in private on 31 January and 19 May 1987,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The present case was brought before the Court by the European

Commission of Human Rights ("the Commission") on 28 January 1986,

within the three-month period laid down in Article 32 § 1 and

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

an application (no. 9381/81) against the Italian Republic lodged with

the Commission under Article 25 (art. 25) by Mrs. Gloria Capuano,

who is an Italian national, on 21 December 1980.

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

art. 48) and to the Italian declaration recognising the compulsory

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

request was to obtain a decision from the Court as to whether or not

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

one of its obligations under Article 6 § 1 (art. 6-1).

2. In response to the enquiry made in accordance with

Rule 33 § 3 (d) of the Rules of Court, the applicant stated that she

wished to take part in the proceedings pending before the Court and

designated the lawyer who would represent her (Rule 30).

3. On 17 March 1986, the President of the Court decided that one

and the same Chamber of seven judges should consider the Capuano,

Baggetta and Milasi cases (Rule 21 § 6). The Chamber included, as ex

officio members, 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 § 3 (b)).

On 19 March 1986, the President of the Court drew by lot, in the

presence of the Registrar, the names of the other five members, namely

Mr. J. Cremona, Mrs. D. Bindschedler-Robert, Mr. F. Matscher,

Mr. L.-E. Pettiti and Mr. J. Gersing (Article 43 in fine of the

Convention and Rule 21 § 4) (art. 43).

4. On 25 March 1986, the President of the Court granted the

applicant leave to use the Italian language (Rule 27 § 3). On 8 May,

he granted her free legal aid (Rule 4 of the Addendum to the Rules of

Court).

5. Mr. Ryssdal who had assumed the office of President of the

Chamber (Rule 21 § 5) consulted, through the Registrar, the Agent of

the Italian Government ("the Government"), the Commission's Delegate

and the applicant's lawyer on the need for a written procedure

(Rule 37 § 1). On 2 April, he decided that the said Agent and lawyer

should each have until 2 June 1986 to submit memorials and that the

Delegate should be entitled to reply within two months.

The applicant's memorial arrived on 28 May 1986 and the Government's

on 4 June. On 21 July, the Deputy Secretary to the Commission

indicated that the Delegate would not be submitting one.

On 16 September, the Registrar received the Government's observations

on the applicant's claims under Article 50 (art. 50) of the Convention.

6. On 17, 19 and 20 November, the Federation of Italian Lawyers'

Unions, the Italian Association of Young Barristers and the Rome

Lawyers' Association sought leave to submit written comments

(Rule 37 § 2). On 29 November, the President granted leave, on

certain conditions, to the last-mentioned of these organisations,

whose memorial reached the registry on 30 December 1986.

7. On 28 November 1986, after consulting, through the Registrar,

the Agent of the Government, the Commission's Delegate and the

applicant's lawyer, the President directed that the oral proceedings

should open on 26 January 1987 (Rule 38).

8. The hearings were held in public in the Human Rights Building,

Strasbourg, on the appointed day. The Court had held a preparatory

meeting immediately beforehand.

There appeared before the Court:

- for the Government

Mr. L. Ferrari Bravo, Head of the Diplomatic Legal Service of the

Ministry of Foreign Affairs, Agent,

Mr. D. Striani, avvocato,

Mr. G. Grasso, avvocato, Counsel;

- for the Commission

Mr. A. Weitzel, Delegate;

- for the applicant

Mr. A. Sinagra, avvocato, Counsel.

The Court heard addresses by Mr. Ferrari Bravo, Mr. Striani and

Mr. Grasso for the Government, by Mr. Weitzel for the Commission and

by Mr. Sinagra for Mrs. Capuano, as well as their replies to its

questions. The Government and the applicant produced documents at the

hearing.

On 19 February and 23 March 1987, the registry received additional

replies from the Government and the applicant.

AS TO THE FACTS

9. Mrs. Gloria Capuano lives in Rome. On 24 July 1971, she

purchased a small flat with a terrace at Villamare de Vibonati

(Potenza) for her holidays. It was part of a sea-front building that

was due to be renovated as shown in a plan appended to the contract of

sale. The declared price was 700,000 LIT. In the same contract she

covenanted to grant the vendor, Mr. P. (who at the time was the sole

owner of the building), and his heirs and other beneficiaries a right

of way over the terrace, which provided a secondary means of direct

access to the beach.

During the renovations, Mr. P. created four flats, which he sold.

He did not adhere to the original plan, however; in particular, he

removed the building's main access to the beach, so that

Mrs. Capuano's terrace became the sole means of access.

10. The applicant considered that the works that had been carried

out increased the burden of the easement and she instituted legal

proceedings.

She applied first to the Sapri (Potenza) Magistrate's Court (pretore),

where she laid an information against the vendor that he had acted

without the authorisations required by law. She could not, however,

sue for civil damages in the criminal proceedings: since the alleged

offences related to non-compliance with administrative formalities,

she could not personally claim to be the victim. On 9 March 1974, the

Magistrate's Court imposed a fine on Mr. P.

11. Having been unable to obtain compensation, Mrs. Capuano

started proceedings in the civil courts. On 10, 13 and

15 November 1976, she summoned Mr. P. and the four people who had

bought the flats to appear on 10 January 1977 at the Lagonegro

(Potenza) District Court. She sought an order that the works which

had resulted in the unreasonable increase in the burden of the

easement on her property should be demolished.

12. The preliminary hearing began on the appointed day. Counsel

for the applicant, however, applied for an adjournment so that a

summons could be served on one of the four purchasers who lived in

Rome but whom the bailiff had not been able to find as his exact

address was unknown.

The trial was postponed to 19 April 1977, when it had to be further

adjourned in accordance with Article 301 of the Code of Civil

Procedure, as the applicant's counsel had died and the court had not

yet been informed of the appointment of the new lawyer instructed by

Mrs. Capuano on 13 April 1977. On 1 June, the applicant's counsel

asked for the trial to be resumed, and the case was set down for

hearing on 20 September. When that day arrived, he applied for an

adjournment in order to be able to submit evidence.

At the following hearing, on 29 November 1977, he applied for an

opinion to be sought from an expert (Articles 61-64 and 191-201 of the

Code of Civil Procedure), saying that he would indicate later the

questions to be put to the expert. The hearing was postponed to

24 January 1978, but did not take place until 31 January, because of a

further adjournment due to municipal elections. Mrs. Capuano's lawyer

specified the matters he thought should be dealt with by the expert,

and after discussion between counsel for the two sides the judge

appointed an expert and directed that he should be sworn in and given

his terms of reference on 14 March 1978.

13. On the appointed day, the judge gave the expert sixty days to

submit his report and directed that the hearing for discussion of the

report should take place on 23 May 1978.

The expert went to inspect the premises on 24 April 1978, but although

the interested parties were present, the inspection had to be

postponed until 17 May as it proved impossible to gain access to the

whole building.

The hearing fixed for 23 May 1978 could not be held owing to the

unavoidable absence of the judge, and it began a few days later; but

counsel for the applicant applied for an adjournment, as the expert

had still not filed his report. This did not arrive until

5 January 1979, with the result that the hearings set down for 4 July,

31 October and 14 December 1978 likewise had to be postponed.

14. In the meantime, on 12 July, a new judge had been appointed to

prepare the case for trial.

The hearing set down for 6 February 1979 did not take place. At the

following hearing, on 12 June 1979, the defendants challenged the

report and asked for time to produce an opinion by an expert of their

own. Mrs. Capuano, for her part, asked the judge to give the expert

fresh instructions - that he should indicate the work needed in order

to remedy the changes made by Mr. P. On 9 October 1979, counsel for

Mrs. Capuano reiterated this request, while the defendants asked for

time to study it and give their view.

At the hearing on 13 November 1979, counsel for one of the defendants

filed the opinion of a privately retained expert and asked for an

inspection of the premises. Mrs. Capuano's lawyer objected, and the

judge reserved his decision.

On 18 December 1979, the judge postponed consideration of the case

until 12 February 1980, as the parties had requested. On that date,

the applicant's counsel in turn submitted the opinion of a privately

retained expert.

15. On 1 April 1980, the judge ordered that the supplementary

expert opinion should be taken, further reserved his decision as to an

inspection of the premises, and directed that the expert should be

asked to appear on 6 May 1980. On that date, the judge gave him his

terms of reference. The expert asked for sixty days to complete his

work. Examination of the case was accordingly postponed until

15 July 1980.

The hearings set down for 15 July, 21 October and 16 December 1980 had

to be postponed, as the expert had not submitted his report. On the

judge's instructions, the registry asked on three occasions for the

report to be filed - on 17 December 1980 in time for 10 February 1981,

on 12 February within the next twenty days, and on 14 April for

19 May 1981 - but to no avail, and each time a postponement resulted.

In the meantime, the judge responsible for preparing the case for

trial was transferred to other duties, and no further action was taken

in the case until 23 February 1982, when consideration of the case had

to be postponed until 4 May.

16. Eventually, however, the expert submitted his report,

dated 25 March 1982. At the hearing on 4 May, counsel for

Mrs. Capuano asked the court to determine the merits of the case. The

opposing side asked for time to reply. On 29 June, counsel for the

applicant again asked the judge to give a decision, but one of the

defendants asked for an inspection of the premises and reserved the

right to submit an opinion by a privately retained expert.

On 19 October, he was granted time to file an opinion, which he did on

14 December. Thereupon, counsel for the applicant likewise asked for

time to reply, and the case was postponed until 18 January 1983.

On that date, the judge ordered an inspection of the premises. He

revoked his decision, however, on 2 February 1983 and set 1 March as

the date for hearing the expert. As Mrs. Capuano was not told of this

change of date, she travelled to Villamare de Vibonati unnecessarily.

17. On 1 March, the judge responsible for preparing the case heard

the expert and postponed hearing argument by counsel to 29 March. At

this last hearing the parties duly made their submissions to the

court, which declared the case ready for decision.

The judgment was delivered on 14 July 1983 and filed with the registry

on 20 July. Mr. P. lodged an appeal, and two other defendants and the

applicant cross-appealed.

18. Mr. P. summoned the other parties to appear at the Potenza

Court of Appeal on 6 March 1984. Thereupon, the judge responsible for

preparing the case for trial postponed consideration of it to

8 May 1984, and then to a later date as notice of the appeal had not

been served on one of the parties concerned.

At the following hearing, on 9 October, counsel for Mr. P. and for

Mrs. Capuano both requested that a date should be set for a hearing so

that they could make their submissions; another lawyer asked for time

to study new documents produced by the applicant. Hearings took place

on 27 November 1984 and 25 January 1985. The judge responsible for

preparing the case brought it before the court, which decided

on 23 April that further inquirieswere necessary, despite objections

by counsel for Mrs. Capuano.

Witnesses were due to be heard on 19 November 1985, but the

applicant's counsel fell ill. At the hearing on 10 December, one of

the witnesses failed to appear and counsel for Mr. P. asked for

evidence to be taken from other witnesses. At the hearing

on 18 February 1986, one witness was again absent, and the court

ordered the police to bring the person concerned before the court on

29 April, when he did indeed appear.

After initially being set down for 17 June 1986 and then 19 November,

the hearing finally took place on 29 April 1987; the parties had

exchanged pleadings on 3 February. According to the information

before the European Court, the Court of Appeal has not yet given

judgment.

PROCEEDINGS BEFORE THE COMMISSION

19. Mrs. Capuano applied to the Commission on 21 December 1980

(application no. 9381/81). She complained that she had been refused

leave to sue for civil damages in the criminal proceedings taken

against the vendor in respect of an offence against planning

legislation. She also complained of the slowness of the civil

proceedings she had instituted against the vendor.

20. On 3 October 1983, the Commission declared the application

admissible as to the latter complaint, and inadmissible as to the

former. In its report of 15 October 1985 (made under Article 31 of the

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

had been a breach of Article 6 § 1 (art. 6-1). The full text of

the Commission's opinion is reproduced as an annex to this judgment.

AS TO THE LAW

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

21. According to the applicant, the hearing of her civil action

had taken longer than the "reasonable time" envisaged in Article 6 § 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 contested this allegation, whereas the Commission

accepted it.

A. Period to be considered

22. There was no dispute as to the period to be considered. It

began on 10 January 1977, when the defendants were due to appear

before the court, Italian law leaving it to the plaintiff to indicate

the date for the initial hearing of the summons. It has not yet

ended, since the proceedings are still pending.

What is involved is therefore a lapse of time that already exceeds ten

years and four months (10 January 1977 - 19 May 1987).

B. Reasonableness of the length of the proceedings

23. The reasonableness of the length of proceedings has to be

assessed according to the circumstances of the case and having regard

to the criteria laid down in the Court's case-law (see, amongst other

authorities, the Zimmermann and Steiner judgment of 13 July 1983,

Series A no. 66, p. 11, § 24).

24. The Government emphasised that in Italy the procedure in civil

cases was governed by the "principle of determination" (principio

dispositivo), which means that the initiative and the power of

advancing matters rest with the parties. They cited by way of example

Articles 99, 115 and 306 of the Code of Civil Procedure.

This contention was disputed by the applicant's lawyer. According to

him, it was only the setting of the starting-point of a civil action

which was left to the parties, and not the conduct of the whole trial.

He maintained that this was demonstrated by Article 175 of the Code of

Civil Procedure and Article 81 of the rules on the application of that

Code.

25. The Convention admittedly does not prevent the Contracting

States from basing their civil procedure on the aforesaid principle,

but the principle does not dispense the courts from ensuring

compliance with Article 6 (art. 6) as to the "reasonable time" requirement

(see, mutatis mutandis, the Guincho judgment of 10 July 1984, Series A

no. 81, p. 14, § 32). Indeed, under Article 175 of the Italian Code

of Civil Procedure the judge responsible for preparing the case for

trial shall take all possible steps to secure that the proceedings are

conducted with the utmost speed and fairness.

1. Complexity of the case

26. The Court considers, as did the applicant and the Commission,

that the case was not complex either as regards the facts or as

regards the relevant law.

2. Conduct of the applicant

27. The Commission attributed to Mrs. Capuano a delay of about one

year; it concluded that, apart from this, she had shown "due

diligence".

The applicant asserted that she could not be held responsible for the

delay due to the death of her counsel, for the delay of some four

months (1 June - 20 September 1977) in connection with the resumption

of the trial or for the lapse of time between 20 September and

29 November 1977 (see paragraph 12 above).

For the Government, on the other hand, Mrs. Capuano's conduct was the

cause not only of the aforesaid delays but also of many others. This

was especially true of the adjournments requested by her counsel in

order to provide further particulars of the evidence to be submitted

on her behalf and of the postponements of hearings sought by agreement

between the parties or, alternatively, by the defendants without any

objection on the part of the applicant's counsel.

28. To a large extent the Court shares the Commission's view.

Whilst Mrs. Capuano cannot be held responsible for the delay due to

her lawyer's death, the same does not apply to certain other factors

that contributed to the slowness of the proceedings. For example,

although her new counsel was instructed by her on 13 April 1977, he

waited for more than two months before asking for the trial to be

resumed (see paragraph 12 above). Subsequently, on 20 September 1977,

he applied for an adjournment in order to be able to submit evidence

and then, on 29 November, asked for an opinion to be sought from an

expert, but without indicating the questions to be put to him (ibid.);

this occasioned a further delay of some four months.

On the other hand, the Court, unlike the Commission, cannot attribute

to the applicant the postponements granted on 9 October 1979 and

19 May 1981 (see paragraphs 14 and 15 above): the first postponement

had been asked for by counsel for one of the defendants and the second

was ordered because, for reasons which are not apparent from the file,

the hearing initially scheduled was not held.

Similarly, the criticisms levelled by the Government against

Mrs. Capuano concerning various other periods are not relevant to the

extent that those periods related to applications for postponement

made by defendants.

In conclusion, the applicant was responsible to a certain degree for

the prolongation of the proceedings (see the Pretto and Others

judgment of 8 December 1983, Series A no. 71, p. 15, § 34).

3. Conduct of the judicial authorities

29. According to the Commission, the conduct of the judicial

authorities gave rise to continual delays. In the Court's view, a

distinction has to be drawn between the first-instance proceedings

(10 December 1977 - 20 July 1983: see paragraphs 11-17 above) and the

appeal proceedings (21 July 1983 - 19 May 1987: see paragraphs 18 and

22 above).

(a) First-instance proceedings

30. The proceedings before the Lagonegro District Court lasted for

six years, eight months and ten days. Since the case was not complex,

a period of this order appears at first sight to be incompatible with

the Contracting States' duty under Article 6 (art. 6) to ensure a hearing

within a reasonable time; it thus calls for close scrutiny. The Court

notes that a substantial part of the period - two years, eleven months

and three days - elapsed whilst the two expert opinions were under

preparation.

According to the Government, the court concerned bore no

responsibility in this latter respect: it was true that each of the

opinions was filed late, but the only step which a judge could take

against an expert who did not carry out his task with due diligence

was to impose a small fine.

The Court does not share this view. In the present case, the expert

was acting in the context of judicial proceedings supervised by the

judge; the latter remained responsible for the preparation of the case

and for the speedy conduct of the trial. As for the sanction which he

could impose on the expert, it has to be recalled that in ratifying

the Convention Italy undertook the obligation of organising its legal

system so as to ensure compliance with the requirements of

Article 6 § 1 (art. 6-1), including that of trial within a "reasonable

time" (see the above-mentioned Guincho judgment, Series A no. 81,

p. 16, § 38).

31. The Government submitted that the applicant should have insisted

that the expert be replaced. On this, the Court agrees with the

Commission. There is nothing to suggest that his replacement would

have eliminated the delays in preparing the opinions. In addition,

Mrs. Capuano was under no duty to request the judge to take such a

step (see, mutatis mutandis, the above-mentioned Guincho judgment,

Series A no. 81, p. 15, § 34); besides, the decision rested with him

and he could also have taken it on his own initiative (see Article 196

of the Code of Civil Procedure).

The Government also criticised the applicant for not having lodged a

complaint against the expert with the public prosecutor's office,

pursuant to Article 328 of the Criminal Code. However, such a course,

far from expediting the procedure, would probably have lengthened it.

32. Having regard to the limits on the role of the parties to the

proceedings, the principal responsibility for the delay due to the

expert opinions rests ultimately with the State. It is true that the

judge set a time-limit of sixty days for the preparation of each of

the opinions; he also called on three occasions for the second of them

to be filed, but he did so only after the time-limit had expired and

shortly before he was himself transferred to other duties (see

paragraph 15 above). And no less than nine months went by before he

was replaced; during that time the case was dormant, with the result

that no one checked how the expert's work was progressing.

33. As regards the periods between the filing of the first opinion

and the decision to order the taking of another (5 January 1979

- 1 April 1980) and between the filing of the second opinion and the

filing of the judgment (25 March 1982 - 20 July 1983), the Court notes

that the postponements, with the exception of two requested by

Mrs. Capuano, were either sought by the defendants or ordered by the

judge of his own motion. It also notes that the applicant's counsel

twice requested the District Court to give judgment (4 May and

29 June 1982 - see paragraph 16 above).

(b) Appeal proceedings

34. The appeal proceedings were set in motion some four years ago

and no judgment on the merits has yet been delivered. This lapse of

time, which in itself appears excessive, followed earlier proceedings

which had already lasted too long. In these circumstances, the Court

sees no need to scrutinise the various phases of the appeal

proceedings and, in particular, to express an opinion on the

expediency of the decision, taken by the Potenza Court of Appeal in

the exercise of its discretion, that further inquiries were necessary.

(c) Conclusion

35. To sum up, even though she was responsible for some of the

delays that occurred, Mrs. Capuano's case has not been heard within a

reasonable time; there has accordingly been a violation of

Article 6 § 1 (art. 6-1).

II. APPLICATION OF ARTICLE 50 (art. 50)

36. Article 50 (art. 50) of the Convention reads as follows:

"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."

In her memorial of 28 May 1986, Mrs. Capuano claimed just satisfaction

of one hundred million lire under various heads; these did not include

the costs and expenses incurred before the Convention institutions.

At the hearing, her counsel stated that she left the matter to the

Court's discretion; however, he requested it to have regard not only

to the legal costs borne in Italy but also to the prejudice resulting

from the deterioration of the flat in question and the physical and

mental stress allegedly occasioned by the length - almost eleven years

already - of the proceedings.

The Government emphasised what they saw as a lack of proportion

between the amount claimed and the value of the property (see

paragraph 9 above). They added that some of the alleged losses could

not be taken into account under Article 50 (art. 50) and that others,

which anyway had not been proved, had not been caused by the violation

complained of.

The Commission was of the opinion that the applicant was entitled to

compensation in a significant amount for non-pecuniary damage; it left

it to the Court to assess the pecuniary damage.

37. In the Court's view, the only basis for an award of just

satisfaction for pecuniary damage in the present case lies in the fact

that the "reasonable time" envisaged in Article 6 § 1 (art. 6-1)

was exceeded (see, for example, the Lechner and Hess judgment of

23 April 1987, Series A no. 118, p. 22, § 64). This increased

Mrs. Capuano's costs and expenses in Italy, and she may in addition

have suffered other financial losses; these points have to be taken

into account.

The applicant also undoubtedly sustained non-pecuniary damage, in that

she was left in prolonged uncertainty and anxiety as to the outcome

and repercussions of the proceedings (ibid.).

These various factors do not lend themselves in the present case to

precise quantification. Taking them together and, as required by

Article 50 (art. 50), on an equitable basis, the Court awards

Mrs. Capuano compensation of eight million lire.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 6 § 1

(art. 6-1);

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

sum of eight million lire (8,000,000 LIT) by way of just satisfaction;

3. Rejects 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 25 June 1987.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar