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You are here: BAILII >> Databases >> European Court of Human Rights >> CESARINI v. ITALY - 11892/85 [1992] ECHR 63 (12 October 1992)
URL: http://www.bailii.org/eu/cases/ECHR/1992/63.html
Cite as: [1992] ECHR 63

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In the case of Cesarini 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. Bernhardt, President,

Mr F. Gölcüklü,

Mr C. Russo,

Mr A. Spielmann,

Mrs E. Palm,

Mr J.M. Morenilla,

Sir John Freeland,

Mr A.B. Baka,

Mr M.A. Lopes Rocha,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 25 June and

22 September 1992,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 77/1991/329/402. 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 by the European

Commission of Human Rights ("the Commission") on

13 September 1991, 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. 11892/85)

against the Italian Republic lodged with the Commission under

Article 25 (art. 25) by an Italian national, Mr Franco Cesarini,

on 11 September 1985.

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 wished to take part in the proceedings and designated the

lawyer who would represent him (Rule 30).

3. The Chamber to be constituted 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 28 September

1991, in the presence of the Registrar, Mr J. Cremona, the

Vice-President of the Court, drew by lot the names of the other

seven members, namely Mr F. Gölcüklü, Mr A. Spielmann,

Mr N. Valticos, Mrs E. Palm, Mr J.M. Morenilla, Mr A.B. Baka and

Mr M.A Lopes Rocha (Article 43 in fine of the Convention and

Rule 21 para. 4) (art. 43). Subsequently Mr R. Bernhardt,

substitute judge, replaced Mr Valticos, who was unable to take

part in the further consideration of the case (Rules 22 para. 1

and 24 para. 1).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent

of the Italian Government ("the Government"), the Delegate of the

Commission and the lawyer for the applicant on the organisation

of the procedure (Rules 37 para. 1 and 38). Pursuant to the

order made in consequence, the Registrar received the

Government's memorial on 12 March 1992. In a letter received on

16 April the Secretary to the Commission informed him that the

Delegate would submit his observations at the hearing.

5. Also on 16 April the Commission produced the file on the

proceedings before it, as requested by the Registrar on the

President's instructions.

6. On 29 May the Government filed their observations on the

claims for just satisfaction (Article 50) (art. 50) which the

applicant had communicated to the Registrar on 27 February.

7. In accordance with the decision of the President, who had

given the applicant leave to use the Italian language

(Rule 27 para. 3), the hearing took place in public in the Human

Rights Building, Strasbourg, on 22 June 1992. The Court had held

a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr G. Raimondi, magistrato, on secondment to the

Diplomatic Legal Service, Ministry

of Foreign Affairs, Co-Agent,

Mr G. Manzo,

Mrs A. Passannanti, both magistrati, on secondment

to the Ministry of Justice, Counsel;

(b) for the Commission

Mr J.A. Frowein, Delegate;

(c) for the applicant

Mr M. de Stefano, avvocato, Counsel.

The Court heard addresses and statements by Mr Raimondi

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

and Mr de Stefano for the applicant.

8. As Mr Ryssdal was unable to attend the final

deliberations on 22 September 1992, his place as President of the

Chamber was taken by Mr Bernhardt, the Vice-President of the

Court (Rule 21 para. 5, second sub-paragraph, and see paragraph

3 above in fine); Sir John Freeland, substitute judge, replaced

Mr Ryssdal as a member of the Chamber (Rules 22 para. 1

and 24 para. 1).

AS TO THE FACTS

9. Mr Franco Cesarini resides in Rome. The facts

established by the Commission pursuant to Article 31 para. 1

(art. 31-1) of the Convention are as follows (see

paragraphs 15-21 of its report):

"15. On 10 September 1982 the applicant instituted

proceedings against his employer, company O., before the

Rome magistrate's court (pretore) seeking a ruling that

his lay-off on 14 June 1982 had been unlawful and that he

was entitled to payment of his wages as from that date.

16. The investigative stage of the proceedings began

at a hearing on 2 March 1983. The following hearing,

originally due to be held on 18 May 1983, was adjourned

by the court until 10 June 1983. A third hearing took

place on 13 October 1983.

17. On 9 February 1984 the magistrate's court

dismissed the applicant's suit. The text of the judgment

with the reasons therefor was filed with the registry on

5 April 1984.

18. On 29 March 1985 the applicant, who had been

dismissed in the intervening period, appealed against

this judgment ...

19. On 4 April 1985 the President of the Rome District

Court arranged for the hearing before that court to take

place on 18 November 1986; at this hearing the court

found against the applicant. The text of the judgment

was filed with the registry on 21 April 1987.

20. On 25 March 1988 the applicant gave notice of an

appeal to the Court of Cassation ... . The appeal was

lodged with the registry of the Court of Cassation on

12 April 1988. The hearing before that court was

arranged for 22 February 1989.

21. On 19 January 1989 the applicant and company O.

reached a friendly settlement. On 7 February 1989, as a

result of this settlement, the applicant withdrew his

appeal. On 22 February 1989 the Court of Cassation noted

the applicant's withdrawal of his action and closed the

proceedings."

10. According to the information supplied to the Court by the

Government, Mr Cesarini had requested the Rome magistrate's court

as early as 10 June 1982, as an emergency measure (provvedimento

d'urgenza, Article 700 of the Code of Civil Procedure), to order

company O. to pay him the salary due to him from 14 June 1982 to

the date of judgment.

11. The relevant provisions of the Code of Civil Procedure

provide for two periods for bringing appeals. The first,

generally known to lawyers as the "short" period, is normally

thirty days from notification of the decision of the court of

first instance (Article 434), notification always taking place

on the initiative of one of the parties (Article 285). In

default of notification, an appeal may be brought within a

different period, known as the "long" period, which lasts for one

year from publication of the contested decision by filing with

the registry of the court of first instance (Articles 327 and

430).

Appeals to the Court of Cassation are subject to similar

rules, except that the "short" period is sixty days.

In employment cases these periods are not suspended

during the judicial vacations.

PROCEEDINGS BEFORE THE COMMISSION

12. The applicant applied to the Commission on

11 September 1985. Relying on Article 6 para. 1 (art. 6-1) of

the Convention, he complained of the length of the civil

proceedings brought by him.

13. The Commission declared the application (no. 11892/85)

admissible on 11 May 1990. In its report of 10 July 1991 (made

under Article 31) (art. 31), it expressed the opinion by fourteen

votes to five that there had been a violation of

Article 6 para. 1 (art. 6-1). The full text of the Commission's

opinion and of the two dissenting opinions contained in the

report 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

245-B of Series A of the Publications of the Court), but a copy

of the Commission's report is available from the registry.

_______________

GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT

14. At the hearing the Government asked the Court to hold

that there had not been a violation of the Convention in the

case.

AS TO THE LAW

ALLEGED VIOLATION OF ARTICLE 6 para. 1 (art. 6-1)

15. The applicant maintained that his civil action had not

been examined within the "reasonable time" laid down in

Article 6 para. 1 (art. 6-1) of the Convention, which states

that:

"In the determination of his civil rights and obligations

..., everyone is entitled to a ... hearing within a

reasonable time by [a] ... tribunal ..."

The Government rejected this argument, but the Commission

accepted it.

16. The period to be taken into consideration started not on

10 September 1982, when proceedings were instituted against

company O. (see paragraph 9 above, at no. 15), but on 10 June of

that year, when the applicant requested the Rome magistrate's

court to adopt an emergency measure (see paragraph 10 above).

It ended on 22 February 1989, when the Court of Cassation noted

that the applicant had withdrawn the action and closed the

proceedings (see paragraph 9 above, at no. 21). It thus lasted

for more than six years and eight months.

17. The reasonableness of the length of proceedings is to be

determined 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.

18. The Government criticised the applicant for having

remained inactive for a total of over two years and for not at

any stage having asked for his case to be dealt with more

rapidly.

19. Mr Cesarini acknowledged that he had not appealed to the

District Court and the Court of Cassation until near the end of

the "long" period (see paragraph 9 above, at nos. 17-20, and

paragraph 11). He explained this by reference to his attempts

to obtain a friendly settlement, which had been reached only on

19 January 1989 (see paragraph 9 above, at no. 21). He argued

that the judicial authorities bore the entire responsibility for

the "reasonable time" being exceeded, especially as the law laid

down short time-limits for employment cases.

20. The Court, in agreement with the Commission, finds that

there were several periods of inactivity: the magistrate's court

waited seventeen months before taking a decision and the Rome

District Court waited twenty months before examining

Mr Cesarini's appeal.

Nevertheless, having regard to the applicant's attitude,

to the fact that the case came before three different courts and

to the friendly settlement, the delays that occurred do not

appear substantial enough for the total length of the proceedings

to be able to be regarded as excessive.

21. There has therefore been no breach of Article 6 para. 1

(art. 6-1).

FOR THESE REASONS, THE COURT UNANIMOUSLY

Holds that there has been no breach of Article 6 para. 1

(art. 6-1).

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on

12 October 1992.

Signed: For the President

Alphonse SPIELMANN

Judge

Signed: Marc-André EISSEN

Registrar

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