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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> CARDARELLI v. ITALY - 12148/86 [1992] ECHR 14 (27 February 1992)
URL: http://www.bailii.org/eu/cases/ECHR/1992/14.html
Cite as: [1992] ECHR 14
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In the case of Cardarelli 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 10/1991/262/333. 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. 12148/86) against the Italian Republic lodged with
the Commission under Article 25 (art. 25) by an Italian national,
Mr Achille Cardarelli, on 9 April 1986.
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, Mr Paolo Soldani Benzi,
avvocato, informed the Registrar, on 10 April 1991, of
Mr Cardarelli's death and of his appointment as trustee of the
applicant's estate; in that capacity and after receiving the
authorisation of the Florence magistrate's court, he stated that he
wanted the proceedings to continue and to take part in them as the
representative of the deceased's estate. For reasons of convenience
Mr Cardarelli will continue to be referred to as "the applicant" in
this judgment.
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 Diana, Ridi,
Casciaroli, Manieri, Mastrantonio, Idrocalce S.r.l., Owners'
Services Ltd, 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. 3/1991/255/326 to 9/1991/261/332; 11/1991/263/334 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
Mr Soldani Benzi - whom the President had authorised to use the
Italian language (Rule 27 para. 3) - on 11 July 1991 and the
Government's memorial on 16 July. 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 10 October and 5 November, respectively, the Government
and the Commission filed their observations on "possible" claims by
the applicant for just satisfaction (Article 50 of the Convention)
(art. 50). In fact Mr Soldani Benzi submitted such claims, which
were in any case expressed in vague terms, only in a letter of
22 December 1991, after the expiry of the time-limit laid down in
Rule 50 para. 1.
AS TO THE FACTS
9. Mr Achille Cardarelli was an Italian national and resided in
Florence until his death. The facts established by the Commission
pursuant to Article 31 para. 1 (art. 31-1) of the Convention are as
follows (paragraphs 16-32 of its report):
"16. By summons served on 23 December 1977 the applicant, as the
owner of a flat damaged by water seepage, took proceedings before
the Florence District Court against Mr M., the owner of the flat
from which the seepage originated. He asked that the cause of the
water damage be remedied and claimed damages.
17. The investigation opened at the hearing of 2 February 1978,
followed by hearings on 18 May 1978 (when the heirs of the person
who had renovated the house intervened in the proceedings)
and 8 March 1979 (initially fixed for 19 October 1978).
18. At the hearing of 27 April 1979, as further seepages had
occurred, the applicant asked the investigating judge to order the
measures required for the protection of his property against any
subsequent damage. He also informed the judge that Mr M.'s counsel
had died, and this caused an interruption of the proceedings.
19. On 2 May 1979, in order to decide on the request for
protective measures, the investigating judge appointed an expert who
was sworn in at the hearing of 31 May 1979. He was given sixty days
to lodge his report. This time-limit was not complied with and so
the examination of the case, after being adjourned to 5 October,
8 November and 6 December 1979, did not resume until the hearing of
10 January 1980.
20. In the meantime, by summons served on 26 October 1979, the
applicant took proceedings against Mr M. before the Florence
District Court for compensation for the damage caused by the new
seepages.
21. On 1 February 1980 the investigating judge, referring to the
findings of the expert's inspection, ordered that the water supply
system be cut off.
22. On 15 February 1980 Mr M. requested that the order be
rescinded as the measure adopted amounted to compelling his tenants
to move out of the premises. On 16 February 1980 the investigating
judge instructed the parties to appear in person at the hearing of
22 February 1980; at the close of the hearing on that date he
summoned the expert to the hearing of 29 February 1980 to receive
further instructions.
23. At the hearing of 10 April 1980, the claim for damages filed
by the applicant on 26 October 1979 was joined to the first claim.
24. After the expert's additional findings had been submitted,
two hearings took place on 15 and 16 May 1980. On 27 May 1980 the
investigating judge amended the order of 1 February 1980 and
prescribed new protective measures. The expert was instructed to
oversee the work and authorised to take any technical action
required to prevent further water seepages.
25. Two more hearings were held on 3 and 17 July 1980. During
the latter, the investigating judge granted a request by the
applicant and gave the expert twelve days to complete the work.
26. However, more seepages occurred and at the hearing
of 18 September 1980 the applicant asked the court to take effective
measures and replace the expert.
27. On 26 September 1980 the investigating judge decided to give
precedence to the applicant's interests and ordered that the water
supply system be cut off within thirty days.
28. The hearings of 5 December 1980 and 20 February 1981 were
followed by a hearing on 5 March 1981, when the investigating judge
fixed a hearing for 9 October 1981 for the examination of the
witnesses identified by the parties. The examination proceeded at
the hearings of 2 April and 24 June 1982. Owing to an error in the
notifications, the next hearing, fixed for 18 November 1982,
was postponed to 28 January 1983. On that date the examination
of the witnesses was completed.
29. At the hearing of 3 March 1983, the parties asked for a
hearing to make their final submissions. The parties began to make
their final submissions on 30 June 1983, continued at the hearing of
27 October 1983 and did not finish until the hearing of
15 December 1983. The investigating judge referred the case to the
competent court chamber to be heard on 10 December 1985.
30. However, the death of the defendant in October 1985 caused
the proceedings to be interrupted again.
31. On 2 March 1986 the proceedings were reopened by the
applicant. Another hearing before the court chamber was fixed for
23 February 1988 but did not take place because the reporting judge
had been transferred to the Court of Appeal in October 1987.
32. By order of 10 July 1989, the replacement judge fixed the
hearing for 30 October 1990."
10. According to the documents and information supplied to the
European Court by the Government, the Commission and the applicant's
lawyer:
(a) following the summons of 26 October 1979 (see paragraph 9 above,
no. 20), Mr M. again requested the intervention both of the
builder's heirs and the plumber;
(b) at the hearing on 30 October 1990 (see paragraph 9 above,
no. 32), Mr Cardarelli's lawyer informed the District Court of his
client's death, which had occurred on 21 February 1987; this caused
a third interruption of the proceedings;
(c) on 8 April 1991 Mr Soldani Benzi, as trustee of the estate,
sought leave from the Florence magistrate's court to continue the
proceedings;
(d) having obtained such leave, on 15 April he requested the
President of the District Court to set down a date for the trial
hearing before the chamber;
(e) on 17 April the President of the District Court directed that
the hearing should be held on 11 February 1992.
PROCEEDINGS BEFORE THE COMMISSION
11. Mr Cardarelli lodged his application with the Commission on
9 April 1986. 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. 12148/86) 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-G
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
23 December 1977 when the proceedings were instituted against Mr M.
in the Florence District Court; it has not yet ended since that
court has still to give judgment.
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, the
number of participants in the proceedings and the interruptions due
to the deaths of the defendant and his lawyer. They also mentioned
the excessive workload of the Florence District Court.
17. Like the Commission, the Court notes that the case was one
of some complexity. The need to have recourse to expert opinions
and the presence of several defendants undoubtedly rendered the
investigating judge's task more difficult. Nevertheless, most of
the delays occurred after the investigation had been terminated.
In the first place, almost two years elapsed between the last
hearing before the investigating judge and the hearing before the
chamber (15 December 1983 - 10 December 1985).
Secondly, after the second and third interruptions there were long
delays before the trial began again. The Italian State cannot be
held responsible for three of them: Mr Cardarelli's lawyer waited
more than two months before requesting that the proceedings be
resumed following Mr M.'s death (10 December 1985 - 2 March 1986),
more than three years and eight months before notifying the court of
his client's death (21 February 1987 - 30 October 1990) and more
than four years before requesting leave to act thereafter in his
capacity as a trustee (21 February 1987 - 8 April 1991).
The same is not true of various other delays. After the
above-mentioned requests of the applicant's lawyer, the District
Court set down the hearings for dates nearly two years away, in one
instance, and more than ten months, in the other (2 March 1986
- 23 February 1988; 8 April 1991 - 11 February 1992). Moreover the
hearing to be held on 23 February 1988 did not take place until
considerably later, namely 30 October 1990, because the
investigating judge had been transferred. Such delays can hardly be
reconciled with the necessary diligence, which the District Court
had displayed in respect of the first interruption (27 April 1979
- 31 May 1979).
The Government pleaded the backlog of cases in the District Court,
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).
18. Taking the proceedings as a whole, the Court cannot regard
as "reasonable" in this instance a lapse of time which is already
more than fourteen years for only one level of jurisdiction.
There has therefore been a violation of Article 6 para. 1
(art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
19. The applicant did not request any just satisfaction under
Article 50 (art. 50) of the Convention in good time (see paragraph 8
above) and this is not a matter for the Court to examine of its own
motion.
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 it is not necessary to apply Article 50 (art. 50)
in this instance.
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