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You are here: BAILII >> Databases >> European Court of Human Rights >> DIANA v. ITALY - 11898/85 [1992] ECHR 19 (27 February 1992) URL: http://www.bailii.org/eu/cases/ECHR/1992/19.html Cite as: [1992] ECHR 19

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In the case of Diana 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 30 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 3/1991/255/326. 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. 11898/85) against the Italian Republic lodged with

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

Mr Giovanni Diana, on 3 October 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 and designated the lawyer

who would represent him (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 Ridi,

Casciaroli, Manieri, Mastrantonio, Idrocalce S.r.l., 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. 4/1991/256/327 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 deliberations held on 30 October,

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). In accordance with the order

made in consequence, the Registrar received the memorial of the

applicant - whom the President had authorised to use the Italian

language (Rule 27 para. 3) - and the Government's memorial on

16 July 1991. By a letter received on 22 August, the Secretary to

the Commission informed the Registrar that the Delegate did not

consider it necessary to reply thereto.

6. On 28 June 1991 the Chamber had decided to dispense with a

hearing, having found that the conditions for such derogation from

the usual procedure were satisfied (Rules 26 and 38).

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

proceedings before it, as requested by the Registrar on the

President's instructions.

8. On 14 October and 5 November, respectively, the Government

and the Commission filed their observations on the applicant's

claims for just satisfaction (Article 50 of the Convention)

(art. 50).

AS TO THE FACTS

9. Mr Giovanni Diana is an Italian national and resides at

Rocchetta Di Cairo (Savona). The facts established by the

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

Convention are as follows (paragraphs 16-25 of its report):

"16. By summons served on 12 and 14 April 1978, the applicant

brought an action against Mr Z. and Mrs V. before the Savona

District Court to establish that he had lawfully altered the

conditions governing the use of a right of way to which his property

was subject.

17. On 5 June 1981 the action was joined with two other actions

introduced in late November/early December 1979 and March 1981 to

determine respectively the extent of the right of way in question

and the abuses committed by Mr Z. and Mrs V. in using their right

of way.

18. In the interval, seven hearings had been held

on 26 May 1978, 6 October 1978, 19 January 1979, 19 April 1980,

30 May 1980, 31 October 1980 and 12 December 1980.

19. On 3 July 1981 the investigating judge ordered the parties

to appear in person by summoning them to the hearing of

17 November 1981, on which date he ordered an inspection of the

premises. This was carried out on 30 April 1982.

20. On 12 November 1982 the investigating judge summoned the

parties to appear at the hearing of 21 December 1982, when he

ordered a further inspection with a view to securing a friendly

settlement of the case.

21. The hearing was initially set down for 26 March 1983, but

was postponed to 16 April 1983 at the parties' request made

on 25 March 1983. On the appointed day the investigating judge,

considering that a friendly settlement of the case could not be

reached, cancelled the inspection in compliance with the applicant's

request.

22. Two further hearings took place on 3 and 17 June 1983, after

which the investigating judge was transferred. The next hearing

before the new judge was not held until 23 November 1984.

23. After the hearings of 1 and 29 March 1985, the investigating

judge invited the parties to make their final submissions at the

hearing of 12 July 1985, on which date he referred the case to the

appropriate chamber of the District Court.

24. The hearing before the court chamber took place

on 8 May 1987. The judgment, which found for the applicant, was

adopted on 28 May and filed with the registry on 12 August 1987.

25. On 23 October 1987 Mr Z. and Mrs V. appealed against the

decision of the Savona District Court. At the hearing of

28 April 1988 the parties made their final submissions and the case

was referred to the appropriate chamber of the Genoa Court of

Appeal, before which a hearing apparently took place

on 17 March 1989. On 5 October 1989 the appeal was dismissed.

The text of the decision was lodged with the registry

on 30 October 1989.

26. ... ."

10. According to the information supplied to the European Court

by the applicant, the Court of Appeal's judgment became final on

29 January 1990.

PROCEEDINGS BEFORE THE COMMISSION

11. Mr Diana lodged his application with the Commission on

3 October 1985. He complained of the length of the civil

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

(art. 6-1) of the Convention.

12. On 11 May 1990 the Commission declared the application

(no. 11898/85) admissible. In its report of 15 January 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 229-A

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

Commission's report is obtainable from the registry.

_______________

AS TO THE LAW

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

13. The applicant claimed that his 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.

14. The period to be taken into consideration began on

12 April 1978 when the proceedings against Mr Z. were instituted in

the Savona District Court. It ended, at the latest, on

29 January 1990 when the Court of Appeal's judgment became final.

15. 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.

16. The Government invoked the complexity of the facts and the

legal issues, as well as the excessive workload of the relevant

courts. In addition, the applicant had not requested that his case

be examined more rapidly.

Mr Diana maintained that such a step would have been ineffective and

complained of the lack of staff at the Savona District Court.

17. The case was indeed one of some complexity, which was

increased on 5 June 1981 following its joinder with two other cases.

The investigation lasted more than seven years, during which the

investigating judge held numerous hearings. Several of them

concerned the attempt to secure an out-of-court settlement and the

parties caused the adjournment of those of 25 March and

16 April 1983, for which circumstances the State cannot be held

responsible. At that point the investigating judge was transferred

and the proceedings remained dormant until he was replaced,

approximately seventeen months later (17 June 1983

- 23 November 1984).

Furthermore there was a long period of stagnation of nearly

twenty-one months before the competent chamber of the District Court

(12 July 1985 - 8 May 1987).

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, inter alia, the

Vocaturo v. Italy judgment of 24 May 1991, Series A no. 206-C,

p. 32, para. 17).

It is true that the proceedings were thereafter conducted at an

acceptable pace; thus the District Court's judgment was filed with

the registry two and a half months after its delivery, and the Court

of Appeal's judgment twenty-five days after it had been given.

18. However, 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)

19. 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

20. Mr Diana claimed in the first place 100,000,000 Italian lire

in respect of pecuniary damage and compensation for non-pecuniary

damage, for which he did not give any figure.

In the Government's contention, he did not sustain any pecuniary

damage; as to non-pecuniary damage, a finding of a violation would

in itself provide sufficient just satisfaction for the purposes of

Article 50 (art. 50).

21. There is no evidence that the violation found caused the

applicant pecuniary damage. On the other hand, he must have

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

making an assessment on an equitable basis, awards him

2,000,000 lire.

B. Costs and expenses

22. Mr Diana also sought 10,000,000 Italian lire in respect of

costs incurred before the Convention organs.

Having regard to the evidence at its disposal and its case-law in

this field, the Court awards 2,000,000 lire under this head.

C. Interest

23. 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.

24. 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.

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 the respondent State is to pay to the applicant,

within three months, 2,000,000 (two 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 27 February 1992.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar