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URL: http://www.bailii.org/eu/cases/ECHR/1992/38.html
Cite as: [1992] ECHR 38

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In the case of Tusa 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 44/1991/296/367. 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. 13299/87) against the Italian Republic lodged with

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

Mr Antonio Tusa, on 7 October 1987.

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

did not wish to take part in the proceedings.

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, 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 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 43/1991/295/366;

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") and the Delegate of the

Commission on the organisation of the proceedings (Rules 37 para. 1 and

38). In accordance with the order made in consequence, the

Registrar received 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 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 5 November the Commission lodged its observations on the

claims for just satisfaction which the applicant had communicated to

the Registrar on 14 May (Article 50 of the Convention; Rules 50 and

1 (k), taken together) (art. 50) and on which the Government had

already commented in their memorial.

AS TO THE FACTS

9. Mr Antonio Tusa is an Italian national and resides at

Caltanissetta. He is a salesman. The facts established by the

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

are as follows (paragraphs 16-26 of its report):

"16. On 27 November 1973 the applicant filed a suit with

the Agrigento District Court against Mr R. and the X

insurance company, claiming compensation for damage

sustained in a collision between his car and one driven by

Mr R.

17. The investigation opened with the hearing held on

27 February 1974. The next hearing, set for 26 June 1974,

was postponed to 15 January 1975 because the investigating

judge was unable to attend. On 17 January the investigating

judge called for a medical opinion. The hearing scheduled

for 26 March 1975 was postponed at the request of the

parties. At the hearing on 28 May 1975 the investigating

judge heard Mr R., who was authorised to request copies of

the police record of the accident and subsequent report for

inclusion in the case-file.

18. At the hearings held on 3 December 1975,

17 March 1976, 19 May 1976, 23 February 1977, 1 June 1977

and 23 November 1977, the examination of the case was

adjourned as Mr R. had been unable to obtain the documents

requested from the police. Meanwhile, on 19 May 1976 the

Istituto Nazionale delle Assicurazioni Malattia (INAM) had

intervened in the proceedings and on 5 November 1976 the

medical opinion had been lodged with the court registry.

19. At the hearing on 15 March 1978 the investigating

judge summoned certain witnesses in accordance with a

request submitted by the applicant at the start of the

proceedings. The witnesses summoned to the hearing of

25 October 1978 did not appear until the hearing of

28 February 1979.

20. The next hearing, initially set for 24 October 1979,

did not take place until 2 January 1980. On that date the

defendant requested an adjournment in order to be able to

submit the documents requested of the police.

21. Two further hearings took place on 30 April and

5 November 1980. At the close of the latter, the

investigating judge directed that the hearing for final

submissions should take place on 4 February 1981, but on

that date Mr R. requested a further adjournment in order to

produce the documents requested of the police. The Istituto

Nazionale della Previdenza Sociale (INPS) then intervened in

the proceedings in place of the INAM.

22. At the hearing on 17 June 1981 Mr R. produced copies

of the police record and report of the accident. He asked

that evidence be taken from two police officers who had

inspected the scene of the accident.

23. The hearings due to take place on 9 December 1981

and 31 March 1982 were postponed because the two witnesses

could not be located. At the hearing on 6 October 1982 the

first police officer concerned was heard. At the hearing on

9 March 1983 it had still not been possible to call the

other police officer.

24. The subsequent hearing, set for 2 November 1983, did

not take place until 11 April 1984 and was postponed once

again as the witness could not attend. The new hearing

date, 4 July 1984, was postponed to 30 January 1985 because

of elections. The following hearing, which was to have been

held on 26 June 1985, did not take place until 5 March 1986.

25. On that date the parties made their final

submissions and the investigating judge referred the case to

the appropriate court chamber. The hearing before that

chamber, set for 4 December 1986, was postponed to

18 June 1987 and then to 3 March 1988 because the investigating

judge had been transferred.

26. On 16 March 1988 the court declared the defendants

jointly and severally liable to pay damages to the

applicant. The text of the decision was lodged with the

court registry on 28 April 1988.

27. ... ."

10. According to the information supplied to the European Court

by the Government, Mr R. appealed against the District Court's

judgment, on a date which has not been specified; the applicant and

the X company filed cross-appeals on 26 September and

26 October 1988.

By a judgment of 5 April 1991, lodged with the registry on

8 October, the Palermo Court of Appeal dismissed Mr R.'s appeal and

found for Mr Tusa. There does not as yet appear to have been an

appeal to the Court of Cassation.

PROCEEDINGS BEFORE THE COMMISSION

11. Mr Tusa lodged his application with the Commission

on 7 October 1987. 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. 13299/87) admissible. In its report of 5 December 1990

(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-D

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

27 November 1973, when the proceedings were instituted against Mr R.

and the X company in the Agrigento District Court. It has not yet

ended, as an appeal to the Court of Cassation from the judgment of

the Palermo Court of Appeal remains possible.

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

excessive workload of the District Court and the transfer of the

investigating judge.

17. The case was one of some complexity. However, the

investigation in itself took more than twelve years

(27 February 1974 - 5 March 1986). Although the parties contributed

to slowing down the proceedings by several requests for

adjournments, the Court also notes that there were numerous

adjournments by the judicial authorities of their own motion. These

adjournments were caused, among other things, by the difficulties

which Mr R. encountered in obtaining various documents from the

carabinieri and by the failure of various witnesses to appear, but

the evidence does not show that the investigating judge took the

necessary steps to surmount these obstacles. In addition, more than

twenty-one months elapsed between the judge's ordering of a medical

expert opinion and the lodging of the report (17 January 1975 -

5 November 1976). Finally, before the relevant chamber of the

Agrigento District Court the proceedings remained dormant for nearly

two years (5 March 1986 - 3 March 1988).

The Government pleaded the backlog of cases and the transfer

of the investigating judge, 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).

The State cannot be held responsible for the time it took

Mr R. to lodge his appeal, but it is difficult to understand why the

appeal proceedings were so long and why six months (5 April -

8 October 1991) elapsed between the adoption of the judgment and its

filing with the registry.

18. Accordingly, the Court cannot regard as "reasonable" in this

instance a lapse of time of approximately eighteen years for two

levels of jurisdiction.

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. The applicant claimed in the first place 50,000,000 Italian

lire for damage.

In the Government's contention, he sustained no pecuniary

damage because the Agrigento District Court, then the Palermo Court

of Appeal, ordered the defendants to pay compensation. As to non-

pecuniary damage, a finding of a violation would provide sufficient

just satisfaction.

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

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 10,000,000 lire.

B. Costs and expenses

22. The applicant also claimed 3,993,000 lire in respect of

costs and expenses incurred before the Commission.

Having regard to the evidence at its disposal and to 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, 10,000,000 (ten 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

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