Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> FOTI AND OTHERS v. ITALY (ARTICLE 50) - 7604/76;7719/76;7781/77;... [1983] ECHR 12 (21 November 1983)
URL: http://www.bailii.org/eu/cases/ECHR/1983/12.html
Cite as: (1991) 13 EHRR 568, [1983] ECHR 12
[New search] [Contents list] [Help]
In the case of Foti and others,
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:
_______________
(*) Note by the registry: In the version of the Rules applicable when
proceedings were instituted. A revised version of the Rules entered
into force on 1 January 1983, but only in respect of cases referred to
the Court after that date.
_______________
Mr. G. WIARDA, President,
Mr. R. RYSSDAL,
Mr. W. GANSHOF VAN DER MEERSCH,
Mrs. D. BINDSCHEDLER-ROBERT,
Mr. J. PINHEIRO FARINHA,
Mr. C. RUSSO,
Mr. R. BERNHARDT,
and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy
Registrar,
Having deliberated in private on 25 October 1983,
Delivers the following judgment, which was adopted on that date, on
the application in the present case of Article 50 (art. 50) of the
Convention:
PROCEDURE AND FACTS
1. The present case was referred to the Court on 20 May 1981 by
the European Commission of Human Rights ("the Commission"). The case
originated in four applications (nos. 7604/76, 7719/76, 7781/77 and
7913/77) against the Italian Republic lodged with the Commission in
1976 and 1977 by four Italian nationals, Mr. Benito Foti,
Mr. Felice Lentini, Mr. Demetrio Cenerini and Mr. Giovanni Gulli.
2. By judgment of 10 December 1982, the Court held that there had
been a breach of Article 6 § 1 (art. 6-1) of the Convention, in that
the applicants' cases (in French: "causes") had not been heard within
a reasonable time (Series A no. 56, paragraphs 50-77 of the reasons
and point 3 of the operative provisions, pp. 18-24).
The only outstanding matter to be settled is the question of the
application of Article 50 (art. 50) in the present case. Accordingly,
as regards the facts, the Court will confine itself here to giving the
pertinent details; for further particulars, reference should be made
to paragraphs 10 to 30 of the above-mentioned judgment (ibid.,
pp. 7-11).
3. At the hearings on 21 April 1982, counsel for the applicants
had stated that, should the Court find a violation of the Convention,
their clients would be claiming just satisfaction under Article 50
(art. 50); counsel had given certain general indications as to the
nature of the satisfaction sought. The Italian Government ("the
Government") had not taken a stand on this issue.
In its judgment of 10 December 1982, the Court reserved the question.
The Commission was invited to submit to the Court, within the coming
two months, its written observations and, in particular, to notify the
Court of any friendly settlement at which the Government and the
applicants might have arrived (paragraphs 79-80 of the reasons and
point 5 of the operative provisions, ibid., pp. 24-25).
4. This time-limit was extended by the President of the Court on
3 February, 25 March and 19 May 1983.
On 16 June, the Secretary to the Commission informed the Registrar
that a friendly settlement had been arrived at between the Government
and the applicants other than Mr. Cenerini.
5. By Order of 20 June 1983, the President directed that the
Agent of the Government should have until 20 July 1983 to submit his
observations.
6. On 7 and 29 July respectively, the Secretary to the Commission
transmitted to the Registrar copies of two settlement agreements
signed on 7 June 1983 by a Government representative and by Mr. Foti
and Mr. Lentini. Under these agreements, the Government was to pay to
each of those applicants the sum of six million Lire, part of which
was destined for their lawyers (one million for Mr. Foti's and two
million for Mr. Lentini's); for their part, the applicants and their
counsel declared that they had no further claims.
7. By letter of 18 July 1983, the Secretary to the Commission
indicated that Mr. Cenerini was claiming one hundred million Lire as
compensation for the loss of his employment: the applicant, who had
been working on a temporary basis for the postal authorities, alleged
that the proceedings pending against him had prevented his being
appointed as a postman on the established staff and that he had been
unable to apply for subsequent vacancies as the qualifications had
changed in the meantime.
8. As regards Mr. Gulli, the Secretariat of the Commission
transmitted to the Registrar, on 4 and 22 August and 9 September 1983,
copies of three letters from the applicant's representative and of a
communication from the mayor of Reggio Calabria. These disclosed that
the Reggio Calabria municipality had offered Mr. Gulli, with effect
from November 1973, a job as a street-sweeper and that he accordingly
considered that he had received satisfaction, "albeit only partial".
However, he sought payment to his lawyer, Mr. Corigliano, of the sum
of fifteen million Lire for fees and expenses, from which the latter
would pay two million Lire to a colleague who had assisted him as an
expert in labour law.
9. Comments by the Government on the situation of the four
applicants were received at the registry on 4 October 1983.
10. Mr. R. Ryssdal and Mr. W. Ganshof van der Meersch, substitute
judges, replaced Mr. D. Evrigenis and Sir Vincent Evans, who were
prevented from taking part in the further consideration of the case
(Rules 22 § 1 and 24 § 1 of the Rules of Court).
11. Having consulted, through the Registrar, the Agent of the
Government and the Delegate of the Commission, the Court decided on
25 October 1983 that there was no call to hold hearings.
AS TO THE LAW
12. 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."
I. Mr. Foti and Mr. Lentini
13. Since its judgment of 10 December 1982, the Court has been
informed of agreements reached between the Italian Republic and
Mr. Foti and Mr. Lentini. As required by Rule 50 § 5 of its Rules,
the Court has verified the "equitable nature" of these agreements and,
having regard to the absence of objection on the part of the
Commission's Delegate, it entertains no doubts on the matter.
Accordingly, striking the case out of the list proves to be justified
as regards these two applicants (see, mutatis mutandis, Rule 47 § 2 of
the Rules of Court).
II. Mr. Gulli
14. In the case of Mr. Gulli, the evidence before the Court
includes copies of two letters, one from Mr. Corigliano, dated
21 July 1983 and countersigned by his client on the following day, and
the other from the mayor of Reggio Calabria, dated 9 August 1983 and
informing Mr. Gulli that he would be engaged (see paragraph 8 above).
Having regard to these documents and to the absence of objection on
the part of the Commission's Delegate, the Court finds that the
partial agreement thus reached is of an "equitable nature", within the
meaning of Rule 50 § 5 of the Rules of Court.
15. There remain the fees and expenses, amounting to fifteen
million Lire, claimed for the applicant's lawyer (see paragraph 8
above).
In the view of the Commission's Delegate, this claim "seemed at first
sight excessive". The Government stated that they shared this
opinion, especially as the applicant had been granted free legal aid.
16. It is true that Mr. Gulli did have the benefit of legal aid
before the Commission and then, after the reference of the case to the
Court, in his relations with the Delegate (addendum to the
Commission's Rules of Procedure). He may nevertheless have incurred
liability to pay to his lawyer an amount greater than that received by
way of legal aid. Indeed, this was not denied by the Government.
What the Government in fact contested was not the principle of the
claim but rather its quantum; moreover, they have agreed to make
Mr. Foti and Mr. Lentini a payment destined for their respective
lawyers (see paragraph 6 above), even though these applicants also had
been granted legal aid in Strasbourg. However, in the absence of
further details and supporting vouchers, the Court shares the
Commission's view that the amount claimed for Mr. Corigliano is
excessive.
In the light of these various considerations, Mr. Gulli should be
awarded, in respect of lawyer's fees and expenses, a sum assessed on
an equitable basis at one million Lire.
III. Mr. Cenerini
17. Mr. Cenerini sought one hundred million Lire as compensation
for the loss of his employment (see paragraph 7 above).
In the opinion of the Commission's Delegate, the fact that the
applicant was not appointed as a member of the postal authorities'
permanent staff was "the result of a number of factors and was only
partly due to the length of the criminal proceedings against him";
accordingly, the amount claimed "seemed too high".
The Government, for their part, expressed the hope that Mr. Cenerini
would be able to find work; however, they considered that in
comparison with the settlements arrived at in the cases of the three
other applicants, his claim was excessive.
18. The Court notes that Mr. Cenerini has adduced hardly any
evidence in support of his claim and, notably, has not specified how
it has been calculated; this being so, the evaluation of the alleged
loss is problematical.
The applicant is nonetheless entitled to compensation for damage
resulting from the fact that the "reasonable time" referred to in
Article 6 § 1 (art. 6-1) of the Convention was exceeded. Taking due
account of the views stated by the Delegate of the Commission and the
Agent of the Government, the Court will make an assessment on an
equitable basis, as is required by Article 50 (art. 50). It considers
that Mr. Cenerini should be awarded satisfaction in the sum of
ten million Lire.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to strike the case out of its list as regards Mr. Foti and
Mr. Lentini;
2. Takes formal note of the partial settlement reached in the case of
Mr. Gulli;
3. Holds that the Italian Republic is to pay:
(a) to Mr. Gulli, in respect of lawyer's fees and expenses, the sum
of one million (1,000,000) Lire;
(b) to Mr. Cenerini, for damage suffered, the sum of ten million
(10,000,000) Lire;
4. Rejects the remainder of Mr. Gulli's and Mr. Cenerini's claims.
Done in English and in French, the French text being authentic, at the
Human Rights Building, Strasbourg, this twenty-first day of November,
one thousand nine hundred and eighty-three.
Signed: Gérard WIARDA
President
Signed: Marc-André EISSEN
Registrar