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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> MOTTA v. ITALY - 11557/85 [1991] ECHR 17 (19 February 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/17.html Cite as: [1991] ECHR 17, 14 EHRR 432, (1992) 14 EHRR 432

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In the Motta 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 F. Matscher,

Mr L.-E. Pettiti,

Sir Vincent Evans,

Mr C. Russo,

Mr J. De Meyer,

Mr N. Valticos,

Mr A.N. Loizou,

Mr J.M. Morenilla,

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

Registrar,

Having deliberated in private on 2 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 4/1990/195/255. 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 on 16 February 1990 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. 11557/85) against the Italian Republic lodged with

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

Mr Luciano Motta, on 22 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

(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 he

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

present his own case during the written procedure and obtained

approval for the lawyer appointed by him for the hearing

(Rule 30). On 30 March 1990 the President of the Court authorised

him to use the Italian language (Rule 27 para. 3) and then, on 24

September 1990, granted him legal aid (Rule 4 of the Addendum to

the Rules of Court).

3. On 21 February 1990 the President decided that, pursuant to

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

of justice, this case and the cases of Manzoni, Pugliese (I),

Alimena, Frau, Ficara, Viezzer, Angelucci, Maj, Girolami, Ferraro,

Triggiani, Mori, Colacioppo and Adiletta and Others* should be

heard by the same Chamber.

_______________

* Cases of Manzoni (7/1990/198/258), Pugliese (I) (8/1990/199/259),

Alimena (9/1990/200/260), Frau (10/1990/201/261), Ficara

(11/1990/202/262), Viezzer (12/1990/203/263), Angelucci

(13/1990/204/264), Maj (14/1990/205/265), Girolami

(15/1990/206/266), Ferraro (16/1990/207/267), Triggiani

(17/1990/208/268), Mori (18/1990/209/269), Colacioppo

(19/1990/210/270), Adiletta and Others (20/1990/211/271-273)

_______________

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 26 March 1990, in

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

of the other seven members, namely Mr F. Matscher, Mr L.-E.

Pettiti, Sir Vincent Evans, Mr J. De Meyer, Mr N. Valticos, Mr A.N.

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

and Rule 21 para. 4) (art. 43).

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's lawyer 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 22

June 1990 and the Government's memorial on 31 July. By 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 1 October 1990

(Rule 38).

7. On 31 August 1990 the Commission produced the file on the

proceedings before it, as requested by the Registrar 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, seconded to

the Diplomatic Legal Service of the

Ministry of Foreign Affairs, Co-Agent;

(b) for the Commission

Mr S. Trechsel, Delegate;

(c) for the applicant

Mr S. Motta, praticante procuratore legale, Counsel.

The Court heard addresses by the above-mentioned

representatives, as well as their answers to its questions.

On 23, 25 and 26 October the registry received from the

participants in the proceedings additional information in reply to

the Court's questions and observations on the applicant's claims

for just satisfaction.

AS TO THE FACTS

9. Mr Luciano Motta, who is an Italian national, practises as a

doctor at Carlentini (Syracuse). The facts established by the

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

Convention are as follows (paragraphs 17-25 of its report, see

paragraph 12 below):

"17. The applicant complains of proceedings resulting from

his dealings with the INAM (the national health insurance

institute). Under the Italian health insurance system, the

patient receives direct assistance, i.e. he is not required to

pay the doctor, pharmacist or other provider of medical

services, who is paid by the INAM on submission of a bill.

18. The INAM refused to pay a bill submitted by the

applicant on the ground that he had not performed medical

services he was claiming for.

On 15 June 1979 he therefore applied to Lentini

magistrate's court ('pretore'), sitting as a labour tribunal,

for an order that the INAM pay him for the medical services

provided between September 1978 and January 1979.

19. On 10 July 1979, the INAM opposed the order to pay on

the ground that it had found irregularities concerning the

services provided. In view of the seriousness of the INAM's

allegations, the Court forwarded the file to the Syracuse

public prosecutor's office for a criminal investigation if

appropriate. On 11 September 1979, the public prosecutor's

office sent the file to the investigating judge.

On 8 October 1979, the magistrate's court decided to

suspend the civil proceedings pending the outcome of the

criminal proceedings, in accordance with Article 295 of the

Code of Civil Procedure.

20. On 20 October 1979, the investigating judge of

Syracuse Criminal Court informed the applicant that he was

being investigated on charges of forgery and fraud in

connection with matters which had occurred on 16 July 1979

(the date of the bill for services from September 1978 to

January 1979).

21. On 30 October 1979, the investigating judge questioned

the applicant. On 30 November 1979 he questioned the patients

said to have received the medical services. On 18 January

1980, the INAM submitted a further report to the public

prosecutor.

On 20 March 1980, the INAM entered a claim for damages in

the criminal proceedings.

22. On 6 June 1980, the investigating judge decided to

commit the applicant for trial before Syracuse Criminal Court.

According to the applicant, the trial should have taken place

in the autumn of 1981. In September 1981, he requested in

writing that a date be set for the hearing. On 10 November

1981, he was summoned to appear at a hearing scheduled for 26

January 1982, which had to be postponed to 4 June 1982 because

he had dismissed his defence counsel and the new defence

counsel was not available. As the public prosecutor did not

object, the court agreed to the postponement. On 4 June 1982

the accused and 20 witnesses were examined. As the defence

had asked for various documents to be produced, it was decided

to resume examination of the case on 26 October 1982, on which

date the proceedings were adjourned because the composition of

the division handling the case had changed. The hearing was

set down for 10 December 1982 but postponed at the request of

the State Counsel to 18 March 1983, then adjourned sine die:

the division which had handled the initial stage of the trial

could not be reconvened because one of its members, an

honorary deputy 'pretore', had left the division.

23. On 21 March 1983, the applicant applied again for a

date to be set for a hearing. On 12 April 1983, he was

summoned to appear at a hearing on 13 June 1983. On that date

the court delivered a decision, filed with its registry on 20

June 1983, that the proceedings should be discontinued because

of an amnesty.

24. The applicant appealed. The file was transferred to

Catania Court of Appeal on 8 November 1983.

The applicant twice asked for a date to be set for the

hearing. The President of the Court of Appeal directed that

the hearing be held on 9 February 1984. On that date, the

applicant's lawyer was absent, and as the President of the

Court had not authorised the defendant to conduct his own

defence, the hearing was postponed to 6 April 1984, the date

on which judgment was delivered. The judgment, filed with the

court registry on 18 May 1984, upheld the decision at first

instance.

25. The applicant appealed to the Court of Cassation,

which dismissed the appeal in a judgment of 27 April 1987

filed with the registry on 4 December 1987.

According to an attestation supplied by the applicant,

the civil proceedings have not been resumed (Article 297 of

the Code of Civil Procedure)."

10. At the hearing on 1 October 1990 (see paragraph 8 above) the

applicant confirmed that this was indeed the situation.

PROCEEDINGS BEFORE THE COMMISSION

11. In his application of 22 April 1985 to the Commission

(no. 11557/85) Mr Motta complained of the length of three sets of

proceedings - two civil and one criminal -, of an infringement of

the rights of the defence, of the arbitrary nature of the criminal

proceedings instituted against him and of a violation of his right

to the peaceful enjoyment of his possessions. He relied on Article

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

12. On 14 December 1988 the Commission declared the application

admissible solely as regards the length of two sets of proceedings

and inadmissible for the rest. In its report of 6 November 1989

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

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

(unanimously for the criminal proceedings and fourteen votes to

three for the civil proceedings). 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 195-A

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 on 1 October 1990 the Government confirmed the

submission put forward in their memorial, in which they requested

the Court to hold "that there has 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 the duration of each of the two

sets of proceedings in question had exceeded a "reasonable time"

within the meaning of Article 6 para. 1 (art. 6-1) of the

Convention, according to which:

"In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to

a ... hearing within a reasonable time by [a] ...

tribunal ... "

The Government disputed this view, whereas the Commission

subscribed thereto.

15. For the impugned criminal proceedings, the period to be taken

into consideration began on 20 October 1979, when the investigating

judge advised Mr Motta of the opening of an investigation

concerning him. It ended on 27 April 1987, when the Court of

Cassation dismissed the applicant's appeal (see, inter alia, the

Baggetta judgment of 25 June 1987, Series A no. 119, p. 32,

para. 20).

The civil proceedings instituted by the applicant with a

view to obtaining an injunction began on 15 June 1979. They were

stayed pending the outcome of the criminal proceedings from

8 October 1979 to 4 December 1987 (the date on which the Court of

Cassation's judgment in the criminal proceedings was filed with the

registry) and they have not since been resumed, in any event as far

as the Court is aware.

16. 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.

17. Article 6 para. 1 (art. 6-1) of the Convention guarantees to

everyone the right to a final decision within a reasonable time in

the determination of any criminal charge against him or of his

civil rights and obligations.

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 regards the criminal proceedings, the Court notes that the

case was not a complex one. Moreover the applicant caused hardly

any delay in its examination and indeed on four occasions applied

for dates to be set for the hearings (see paragraph 9 above, under

nos. 22, 23 and 24). The proceedings at first instance took three

years and eight months from 20 October 1979 to 20 June 1983.

Subsequently, three years elapsed from the delivery of the Court of

Appeal's judgment on 6 April 1984 to the delivery of that of the

Court of Cassation on 27 April 1987 and a further seven months

before the latter judgment was filed with the registry, thereby

enabling the civil proceedings to be resumed. In these

circumstances the Court cannot regard as "reasonable" in the

instant case a lapse of time of more than seven and a half years.

The civil proceedings were prevented from pursuing their

course by the slowness of the criminal proceedings.

There has therefore been, in both cases, a violation of

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

II. APPLICATION OF ARTICLE 50 (art. 50)

18. 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."

A. Damage

19. Mr Motta sought 1,464,000,000 Italian lire for pecuniary and

non-pecuniary damage. He cited, inter alia, his alleged loss of

earnings and the protracted uncertainty in which he claimed to have

lived until the conclusion of the proceedings in question.

20. The Commission considered that the length of the criminal

proceedings had caused the applicant pecuniary damage at least in

the amount of the disputed fees, the reimbursement of which he had

ultimately forgone; the appropriate costs and interest should in

its view be added to this sum. Mr Motta was also entitled to

compensation for the non-pecuniary damage arising from the failure

to conduct the proceedings within a reasonable time.

As regards the civil proceedings, however, the Commission was

of the view that a finding of a violation would constitute

sufficient satisfaction.

21. In the Government's opinion no pecuniary damage could be

established. At the most there might be slight non-pecuniary

damage for which it would be appropriate, if a violation were to be

found, to award a modest sum.

22. The evidence does not show that the applicant suffered

pecuniary damage deriving from the violation of Article 6

para. 1 (art. 6-1). On the other hand, he must have sustained a

degree of non-pecuniary damage for which the Court, making an

assessment on an equitable basis, awards him 10,000,000 lire.

B. Costs and expenses

23. The applicant claimed a total of 239,600,000 lire for costs

and expenses incurred in the national courts and subsequently in

Strasbourg. He presented his own case before the Commission,

received legal aid for the proceedings before the Court and used a

lawyer only at the oral stage of those proceedings.

24. Having regard to the information available to it, the

observations submitted and its case-law in this field, the Court,

making an assessment on an equitable basis, awards him 2,000,000

lire for such of his costs and expenses as are not covered by legal

aid.

FOR THESE REASONS, THE COURT UNANIMOUSLY

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

(art. 6-1) of the Convention;

2. Holds that the respondent State is to pay to Mr Motta

10,000,000 (ten million) Italian lire for non-pecuniary damage

and 2,000,000 (two million) lire for costs and expenses;

3. Dismisses 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

19 February 1991.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar