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URL: http://www.bailii.org/eu/cases/ECHR/1992/17.html
Cite as: [1992] ECHR 17

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In the case of Cooperativa Parco Cuma 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 29 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 50/1991/302/373. 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 19 April 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. 12145/86) against the Italian Republic lodged with

the Commission under Article 25 (art. 25) by an Italian co-operative

association, Cooperativa Parco Cuma, on 25 February 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, the applicant association

stated that it wished to take part in the proceedings and designated

the lawyer who would represent it (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 Diana, 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, Serrentino,

Cormio, Lorenzi, Bernardini and Gritti and Tumminelli* should be

heard by the same Chamber.

_______________

* Cases nos. 3/1991/255/326 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;

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 hearing, 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). Pursuant to the order made in

consequence, the Registrar received the applicant's memorial on

12 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 would submit oral observations.

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

proceedings before it, as requested by the Registrar on the

President's instructions.

7. In accordance with the President's decision, the hearing

took place in public in the Human Rights Building, Strasbourg, on

29 October 1991. 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,

Mr G. Manzo, magistrato, seconded to the

Ministry of Justice,

Mrs A. Passannanti, magistrato, seconded to the

Ministry of Justice, Counsel;

(b) for the Commission

Mr J.A. Frowein, Delegate;

(c) for the applicant

Mr G. de Sangro, avvocato, Counsel.

The Court heard addresses by Mr Raimondi and Mrs Passannanti

for the Government, by Mr Frowein for the Commission and by

Mr de Sangro for the applicant, as well as their answers to its

question.

8. On 10 October the Government had filed their observations on

the applicant's claims for just satisfaction (Article 50 of the

Convention) (art. 50); on 5 November the Commission lodged its

observations on those claims.

AS TO THE FACTS

9. The applicant is a building association whose registered

office is in Naples. 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):

"17. By summons served on 3 November 1980, the applicant

association took proceedings before the Naples District

Court against nine co-owners of the building for whose

construction it had been responsible, claiming payment of

sums which it was owed as part of the joint expenditure.

18. Before the investigation opened, the applicant

discontinued proceedings against five members who had paid

it the outstanding sums. One member, Mrs I., from whom the

applicant demanded payment of 818,726 Italian lire,

contested the validity of its claims. Three other members

did not appear in court.

19. The investigation opened at the hearing of

16 December 1980, followed by hearings on 17 March, 9 June

(when counsel for the defendants requested an adjournment as

the applicant's counsel was absent) and 5 November 1981.

20. At the hearings of 23 February and 11 May 1982, the

applicant asked for Mrs I. to be examined but counsel for

the defendants objected.

21. Two hearings were held on 24 June and

23 November 1982, when the investigating judge decided to

examine Mrs I. and Mr Q., the general manager of the

applicant association.

22. At the hearing of 29 March 1983, neither Mrs I. nor

Mr Q. was present. Mr Q. appeared at the hearing of

5 July 1983, adjourned at the request of the defendants.

Mrs I. was heard on 13 December 1983. At no stage was Mr Q.

examined.

23. Two further hearings took place on 15 May and

13 November 1984. The parties then made their final

submissions at the hearing of 24 October 1985 and the

investigating judge referred the case to the competent

chamber of the court. The hearing before it was fixed for

24 June 1987. The applicant asked for an earlier date, but

on 23 January 1986 the presiding judge of the District Court

refused the request owing to the heavy case-load.

24. After the hearing of 24 June 1987 the court chamber,

by order of 8 July 1987 registered on 25 September 1987,

referred the case back to the investigating judge because

the summons of 3 November 1980 had not been duly served on

two of the three members who had been declared in default.

25. The hearing before the investigating judge was fixed

for 2 February 1988. Three hearings took place on

25 October 1988 (when the applicant discontinued proceedings

against the two members who had not been duly summonsed),

15 December 1988 and 30 March 1989. On that date, the

parties made their final submissions and the investigating

judge fixed the hearing before the competent chamber of the

court for 3 April 1991."

10. According to the information supplied to the European Court

by the applicant, the next hearing before the District Court is

scheduled for 25 March 1992.

PROCEEDINGS BEFORE THE COMMISSION

11. Cooperativa Parco Cuma lodged its application with the

Commission on 25 February 1986. It complained of the length of the

civil proceedings brought by it and relied on Article 6 para. 1

(art. 6-1) of the Convention.

12. On 11 May 1990 the Commission declared the application

(no. 12145/86) admissible. In its report of 5 March 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 231-E

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 the Government confirmed the submission put

forward in their memorial, in which they requested the Court to hold

"that there [had] 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 association claimed that its 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.

15. The period to be taken into consideration began on

3 November 1980, when the proceedings were instituted against the

defendants in the Naples District Court. It has not yet ended as

that court has still to give judgment.

16. 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.

17. The Government invoked the applicant association's conduct

and the excessive workload of the District Court. The applicant

asserted, on the contrary, that its conduct was not open to

criticism and that the investigating judge bore the entire

responsibility for the delays in the first stage of the proceedings.

18. The Court notes that the investigation took more than eight

years and three months (16 December 1980 - 30 March 1989). A

further two years then elapsed before the date fixed for the trial

hearing (3 April 1991), which is finally to be held on

25 March 1992, at the earliest.

As regards the first period, the Court points out that the

applicant association caused one adjournment (9 June 1981).

However, the Commission rightly drew attention to a period of

inactivity from 24 October 1985 to 24 June 1987. Moreover the judge

waited until the hearing on 23 November 1982 before ordering that

certain witnesses be called - Mrs I. and Mr Q. -, witnesses whom the

applicant had proposed calling on 23 February and 11 May 1982.

Mrs I. was not in fact examined until 13 December 1983 and the

examination of Mr Q. never took place. Yet these were investigative

measures which fell to be carried out within the context of judicial

proceedings supervised by the judge, who remained responsible for

the preparation of the case and for the speedy conduct of the trial

(see the Capuano v. Italy judgment of 25 June 1987, Series A

no. 119, p. 13, para. 30). Finally the Naples District Court waited

until 8 July 1987 before finding that the summons of 3 November 1980

had not been served on certain defendants and it did not file its

order until 25 September 1987.

The second period, which began on 30 March 1989, coming as

it did after the first, made the situation worse. The Government

pleaded the backlog of cases, 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).

19. Taking the proceedings as a whole, the Court cannot regard

as "reasonable" in this instance their total duration, which already

amounts to more than eleven years, in a case which is still pending

at first instance.

There has therefore been a violation of Article 6 para. 1

(art. 6-1).

II. APPLICATION OF ARTICLE 50 (art. 50)

20. 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

21. The applicant association claimed in the first place, in

respect of pecuniary damage, 3,085,241 Italian lire plus interest

and adjusted to the appropriate inflation rate and, in respect of

non-pecuniary damage, 100 lire for itself and 10,000,000 lire for

the municipality of Pozzuoli or any other public body in order to

enable certain work to be carried out.

The Commission took the view that, in addition to reparation

for non-pecuniary damage, the association was entitled to

compensation for any pecuniary damage sustained by it, if it

succeeded in establishing its existence and that of a causal

connection with the violation found.

The Government could not perceive any such causal

connection. As to non-pecuniary damage, a finding of a violation

would constitute sufficient just satisfaction for the purposes of

Article 50 (art. 50).

22. The Court shares this opinion.

B. Costs and expenses

23. The applicant association also sought the reimbursement of

the costs and expenses which it had incurred in the national courts

and then before the Convention organs in amounts of 13,547,620 and

3,090,334 lire respectively.

24. The first sum cannot be taken into consideration because it

does not appear from the evidence that the applicant incurred such

costs in order to prevent the breach of the "reasonable time"

requirement of Article 6 para. 1 (art. 6-1). On the other hand, having

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

field, it awards the association the second sum in its entirety.

C. Interest

25. 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.

26. 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 present judgment constitutes in itself, in

respect of any non-pecuniary damage, sufficient just

satisfaction for the purposes of Article 50 (art. 50);

3. Holds that the respondent State is to pay to the applicant

association, within three months, 3,090,334 (three million

ninety thousand three hundred and thirty four) Italian lire

for costs and expenses;

4. 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

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