European Court of Human Rights

There appeared before the Court:

- for the Government:

       Mr. A. Squillante, Section President

                            at the Consiglio di Stato, Head of the Diplomatic Legal       

                            Service at the Ministry of Foreign Affairs,                  Agent,

       Mr. V. Librando, Judge

                            at the Court of Cassation, Ministry of Justice,         Counsel;

- for the Commission:

       Mr. S. Trechsel,

       Mr. A. Weitzel,                                                                      Delegates.

The Court heard addresses by Mr. Squillante for the Government and by Mr. Trechsel and Mr. Weitzel for the Commission, as well as their replies to its questions. However, the Agent of the Government was not in a position to supply on the spot one of the items of information requested (see paragraph 13 below); he was also unable to do so subsequently, as he informed the Registrar by letters of 29 April and 15 July 1983.

AS TO THE FACTS

In 1971, the owner entered into a preliminary contract with a certain Mr. S. for the sale of the property at a price of 27 million Lire. In accordance with section 8 of the Agricultural Land Development Act (Act no. 590 of 26 May 1965 - "Disposizioni per lo sviluppo della proprietà coltivatrice"), he informed Mr. Pretto of the conclusion of this contract.

Mr. Pretto gave notice of his intention to exercise the right of pre-emption ("diritto di prelazione") conferred on him by the same Act. Nevertheless, by deed dated 9 June 1971, the owner sold the land to the brother-in-law of Mr. S. for the price that had been agreed with the latter.

The defendant pleaded that the action was inadmissible since Mr. Pretto had not made an unconditional offer of the price mentioned in the contract. He also claimed that the plaintiff could in any event no longer avail himself of his right of pre-emption as he had not paid the said amount within the three-month period laid down by section 8 of Act no. 590.

On a date which it has not been possible to trace (see paragraph 8 in fine above), the President of the 3rd Civil Chamber of the Court of Cassation directed that the hearings be held on 18 February 1976. The applicants claimed that previously Mr. Pretto had twice asked for the case to be dealt with, but that for reasons beyond their control they were unable to prove this.

On 12 February, Mr. Pretto filed a supplementary memorial; under Article 378 of the Code of Civil Procedure, he was permitted to do so up to the fifth day before the hearings.

On 18 February, the 3rd Civil Chamber postponed the hearings: as section 8 of Act no. 590 had given rise to conflicting judicial decisions, it considered it preferable to await the ruling of the plenary Court of Cassation on other appeals bearing on the same point.

The plenary Court was to have sat on the following day, but in fact did not give judgment until 10 June 1976. On 19 October, the 3rd Civil Chamber applied that decision and dismissed Mr. Pretto’s appeal; it confirmed the Venice Court of Appeal’s interpretation of section 8 of Act no. 590. The full text of the judgment was made public by being deposited in the Court of Cassation’s registry on 5 February 1977. Article 133 of the Code of Civil Procedure, which save for some rare exceptions applies to all civil court judgments, whether rendered at first instance, on appeal or on cassation, in fact provides (translation from the Italian):

"The judgment (sentenza) shall be made public by being deposited in the registry of the court which delivered it. The Registrar shall record at the bottom of the judgment that it has been deposited, adding the date and his signature; within the next five days, he shall advise the parties (parti che si sono costituite) of the deposit by means of a written notice which shall contain the operative provisions of the judgment."

Under Article 120 of Royal Decree no. 1368 of 18 December 1941 (rules on the application of the Code of Civil Procedure and transitional provisions), the deposit has to be effected within thirty days of the examination of the case.

PROCEEDINGS BEFORE THE COMMISSION

(a) In the present case the 3rd Civil Chamber of the Court of Cassation had not constituted an independent and impartial tribunal since it had followed an opinion expressed by the plenary Court of Cassation in a judgment which was in the process of being published; moreover, the very existence of the plenary Court was contrary to this provision of the Convention.

(b) The said Chamber had violated the rights of the defence by basing its decision on a judgment which had not yet been published and could not have been known to the applicant’s lawyer.

(c) The principle of equality of arms had been infringed, since the public prosecutor’s office attached to the Court of Cassation had assisted that Court in its private deliberations (Article 380 of the Code of Civil Procedure, as in force at the time).

(d) The Court of Appeal had violated the right to a fair trial by denying Mr. Pretto the right to seek a judicial determination of the exact price he had to pay in order to exercise validly his right to obtain a re-sale.

(e) By not pronouncing their judgments publicly, the Court of Appeal and the Court of Cassation had failed to satisfy a further requirement of Article 6 § 1 (art. 6-1).

(f) Finally, the length of the proceedings had exceeded a "reasonable time".

In its report of 14 December 1981 (Article 31 of the Convention) (art. 31), the Commission expressed the opinion:

- by eight votes to seven, that the length of the proceedings in question had not exceeded a "reasonable time";

- by twelve votes to three, that there had also been no breach of Article 6 § 1 (art. 6-1) as regards the requirement that judgment be pronounced publicly.

FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

AS TO THE LAW

"In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ... . Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

The Government contended, on the contrary, that the absence of public pronouncement of the judgment did not contravene the Convention and that the "reasonable time" had not been exceeded. The majority of the Commission was of the same opinion, whereas three of its members agreed with the applicants on the first point and seven on the second.

I.  ABSENCE OF PUBLIC PRONOUNCEMENT

At first sight, Article 6 § 1 (art. 6-1) of the European Convention would thus appear to be stricter in this respect than Article 14 § 1 of the 1966 International Covenant on Civil and Political Rights, which provides that the judgment "shall be made public", "sera public".

The Court therefore does not feel bound to adopt a literal interpretation. It considers that in each case the form of publicity to be given to the "judgment" under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6 § 1 (art. 6-1).

That role was confined to reviewing in law the decision of the Venice Court of Appeal. The Court of Cassation could not itself determine the suit, but only, on this occasion, dismiss the applicant’s appeal or, alternatively, quash the previous judgment and refer the case back to the trial court. After holding public hearings, the Court of Cassation adopted the former course. The Venice Court of Appeal’s judgment thus became final; its consequences for Mr. Pretto were in no way changed.

The latter judgment, for its part, had been made public by being deposited on 12 December 1974 in the court registry. The applicant alleged that in this respect also there had been a violation of the Convention, but the Commission declared the complaint inadmissible on the ground of failure to exhaust domestic remedies. The Court therefore does not have jurisdiction to decide whether, in the case of the Venice Court, such a deposit is in conformity with the requirements of Article 6 (art. 6). An affirmative reply to this question would also be valid for the Court of Cassation’s judgment, whereas the same could not be said of a possible negative reply: on the contrary, even in the latter eventuality, the deposit of the judgment in the registry of the Court of Cassation would satisfy the requirements of Article 6 (art. 6), having regard to the differences between the respective roles of the two courts.

Furthermore, the Court of Cassation took its decision after holding public hearings and, although the judgment dismissing the appeal on points of law was not delivered in open court, anyone may consult or obtain a copy of it on application to the court registry (see paragraph 15 above).

In the opinion of the Court, the object pursued by Article 6 § 1 (art. 6-1) in this context - namely, to ensure scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial - is, at any rate as regards cassation proceedings, no less achieved by a deposit in the court registry, making the full text of the judgment available to everyone, than by a reading in open court of a decision dismissing an appeal or quashing a previous judgment, such reading sometimes being limited to the operative provisions.

II.  COMPLIANCE WITH THE REASONABLE-TIME REQUIREMENT

The Government contended on the other hand that the "reasonable time" referred to in Article 6 § 1 (art. 6-1) had not been exceeded. The Commission agreed in substance with this contention.

1. Length of the proceedings

The closing date, for its part, was 5 February 1977, the day when the judgment of 19 October 1976 was deposited in the registry of the Court of Cassation (see paragraph 13 above).

To sum up, the period to be taken into consideration runs from 1 August 1973 until 5 February 1977, that is three years, six months and five days.

2. Reasonableness of the length of the proceedings

(a) Complexity of the case

The Court is of the same view: what was involved was the application of a relatively recent statute which did not contain any specific provisions on the legal point in issue, namely whether the conditions to be satisfied in order to exercise the right of pre-emption also applied to the right to obtain a re-sale; in addition, the decided authorities - still scarce at that time - disclosed contradictory approaches. It was thus reasonable that, with a view to eliminating this divergence of approach and to ensuring certainty of the law, the 3rd Civil Chamber of the Court of Cassation should have deferred its decision until judgment was given by the plenary Court, even though there was a possibility that this would lead to a prolongation of the proceedings (see paragraph 13 above).

(b) Conduct of Mr. Pretto

The Government disagreed. They pointed out that during the appeal proceedings the parties’ lawyers, including Mr. Pretto’s, had on three occasions requested that the hearings be postponed; that they had always lodged the various documents in the case just when the prescribed time-limits were on the point of expiring; that Mr. Pretto, for example, had filed a supplementary memorial barely six days before the hearings due to be held on 18 February 1976 (see paragraph 13 above); and finally that under Italian law the institution and conduct of civil litigation are matters left to the initiative of the parties, without any intervention on the part of the court.

The Court sees no cause to doubt their statement, which was not contested by the Government. It also notes that Mr. Pretto was entitled to make full use of the time-limits available under Italian law and that he was never out of time.

Although no blame can be attached to him, the applicant was nevertheless responsible to a certain degree for the prolongation of the proceedings (see the Eckle judgment of 15 July 1982, Series A no. 51, p. 36, § 82). In this respect, he cannot level any reproach against the respondent State.

(c) Conduct of the judicial authorities

(a) from 1 August 1973 (entry into effect of Italy’s recognition of the right of individual petition) to 12 December 1974 (deposit of the Venice Court of Appeal’s judgment in its registry);

(b) from 12 February 1975 (filing of Mr. Pretto’s appeal on points of law) to 3 May 1975 (lodging of his reply to the respondent’s cross-appeal);

(c) from 3 May 1975 to 18 February 1976 (hearing devoted to an examination of the appeals, and decision by the 3rd Civil Chamber to defer judgment);

(d) from 18 February to 19 October 1976 (adoption of the judgment);

(e) from 19 October 1976 to 5 February 1977 (deposit of the judgment in the Court of Cassation’s registry).

The period from 12 December 1974 to 12 February 1975 does not fall to be taken into account since it corresponds to the time-limit available to the parties for appealing on points of law.

According to the Government, the length of the proceedings had not been shown to be inordinate and was in any event the result of the complexity of the case, the conduct of the parties, the procedural complications at the cassation stage (filing of a cross-appeal and of a reply thereto, see paragraph 13 above) and the expediency, as far as the 3rd Civil Chamber was concerned, of deferring judgment until the plenary Court of Cassation had given its ruling on a similar case. The Government added that account should not be taken of the time-limits available to the parties for lodging cross-appeals and replies thereto, that is to say the period from 12 February to 3 May 1975.

FOR THESE REASONS, THE COURT

1. Holds unanimously that the absence of public pronouncement of the Court of Cassation’s judgment did not contravene Article 6 § 1 (art. 6-1);

2. Holds by fourteen votes to one that there has also been no breach of Article 6 § 1 (art. 6-1) as regards compliance with the "reasonable time" requirement.

Done in English and in French, the French text being authentic, at the Human Rights Building, Strasbourg, this eighth day of December, one thousand nine hundred and eighty-three.

Gérard WIARDA

President

Marc-André EISSEN

Registrar

The following separate opinions are annexed to the present judgment, in accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 50 § 2 of the Rules of Court :

- concurring opinion of Mr. Ganshof van der Meersch;

- dissenting opinion of Mr. Pinheiro Farinha.

G. W.

M.-A. E.