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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> GOISIS v. ITALY - 15310/89 [1993] ECHR 43 (22 September 1993)
URL: http://www.bailii.org/eu/cases/ECHR/1993/43.html
Cite as: [1993] ECHR 43
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In the case of Goisis 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 R. Bernhardt,
Mr C. Russo,
Mr I. Foighel,
Mr F. Bigi,
Mr A.B. Baka,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr J. Makarczyk,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 23 June and 25 August 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 46/1992/391/469. 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 11 December 1992. It originated
in an application (no. 15310/89) against the Italian Republic lodged
with the Commission under Article 25 (art. 25) of the Convention by an
Italian national, Mr Mario Goisis, on 16 May 1989.
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 Articles 6 para. 1 and 13 (art. 6-1, art. 13) of the
Convention.
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. On 16 December 1992 the President of the Court decided, in the
interests of the proper administration of justice, that this case - and
the cases of Istituto di Vigilanza and Figus Milone v. Italy* - should
be examined by the Chamber constituted to consider the case of
Scopelliti v. Italy** (Rule 21 para. 6). This Chamber 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)), the other seven members,
drawn by lot in the presence of the Registrar, being Mr N. Valticos,
Mr I. Foighel, Mr F. Bigi, Mr A.B. Baka, Mr M.A. Lopes Rocha,
Mr L. Wildhaber and Mr J. Makarczyk (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).
_______________
* Cases nos. 42/1992/387/465 and 43/1992/388/466.
** Case no. 41/1992/386/464.
_______________
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Italian
Government ("the Government"), the applicant's lawyer and the Delegate
of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received memorials and observations from the applicant,
the Government and the Delegate of the Commission on various dates
between 27 April and 19 July 1993.
5. On 28 April 1993 the Commission had produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
6. On 23 June 1993 the Chamber decided to dispense with a hearing
in the case, having satisfied itself that the conditions for this
derogation from its usual procedure had been met (Rules 26 and 38).
AS TO THE FACTS
7. Mr Mario Goisis lives at Zanica (in the province of Bergamo).
8. On 4 January 1989 he sued Mr G.N., Mr E.Q.Y. and Mrs M.T. in
the Bergamo magistrate's court (pretore). He sought to have them
ordered to move the low wall which enclosed their properties so that
the width of the adjoining road should be not less than five metres
along the whole of its length.
9. The case was listed on 16 January 1989. At the first hearing,
on 22 February 1989, the applicant and Mr E.Q.Y. asked for an
adjournment so that the other parties' pleadings could be studied. The
magistrate adjourned the proceedings to 7 February 1990.
10. On 5 April 1989 Mr Goisis' lawyer applied for an earlier date.
The magistrate refused the application on 8 April, on the grounds that
there was no urgency and that the time allowed was in accordance with
the usual practice.
On 11 April, however, he agreed to bring the hearing forward
to 22 November 1989, on account of a change in the timetable. When the
day came, Mr E.Q.Y. raised an objection to jurisdiction - joining
Mr G.N. and Mrs M.T., who had already made such an objection in their
pleadings of 14 February - and sought a second adjournment.
11. On 15 January 1990, on an application by Mr E.Q.Y., the
magistrate ordered the joinder of a limited company, Edilpiatti S.r.l.
He adjourned the proceedings to 9 May and then, of his own motion on
this occasion, to 17 July 1990. Other hearings were held on
12 December 1990 and 9 April and 20 November 1991.
12. On the last-mentioned date the magistrate reserved judgment,
but on 1 December he relisted the case and commissioned an expert
opinion.
13. The proceedings were reopened on 12 March 1992, when a deadline
of 31 July 1992 was set for the filing of the expert's report, and the
proceedings continued on 28 October and 9 December 1992 and
20 January 1993.
14. In a judgment of 7 April 1993, which was filed at the registry
on 14 April, the magistrate declined jurisdiction in favour of the
Bergamo District Court. He also set a strict deadline of two months
for resuming the proceedings, and these were resumed on 26 May 1993.
PROCEEDINGS BEFORE THE COMMISSION
15. Mr Goisis applied to the Commission on 16 May 1989. He
complained of the length of the civil proceedings he had brought in the
Bergamo magistrate's court and of the lack in Italian law of any
effective remedy against excessive length of proceedings. He relied
on Articles 6 para. 1 and 13 (art. 6-1, art. 13) of the Convention.
16. The Commission declared the application (no. 15310/89)
admissible on 11 September 1991. In its report of 1 July 1992 (made
under Article 31) (art. 31), it expressed the opinion by five votes to
three that there had been a violation of Article 6 para. 1 (art. 6-1)
but not of Article 13 (art. 13). The full text of the Commission's
opinion and of the partly dissenting opinion 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 265-E of Series
A of the Publications of the Court), but a copy of the Commission's
report is available from the registry.
_______________
AS TO THE LAW
THE GOVERNMENT'S PRELIMINARY OBJECTION
17. In their memorial of 24 May 1993 the Government maintained at
the outset that the Commission had exceeded the time laid down by
Article 32 para. 1 (art. 32-1) of the Convention, which provides:
"If the question is not referred to the Court in accordance
with Article 48 (art. 48) of [the] Convention within a period
of three months from the date of the transmission of the
report to the Committee of Ministers, the Committee of
Ministers shall decide ... whether there has been a violation
of the Convention."
The Commission had referred the case to the Court only on
11 December 1992, whereas its report had been sent to the Committee of
Ministers on 10 September 1992. The Government therefore invited the
Court to consider the question of its jurisdiction to deal with the
case.
The applicant expressed no view.
18. The Delegate of the Commission considered that the word
"referred" could be understood as meaning the date on which the
decision to refer the case to the Court was adopted - in this instance,
5 December 1992 - as well as the date on which the document bringing
the case before the Court was lodged. He wondered, however, whether
the Court needed to decide the question in the present case, since the
Government had not formally challenged the Court's jurisdiction and had
made detailed observations on the merits of the case.
19. The Court nevertheless considers itself bound to make a ruling
as the Government have clearly put the issue before it and have
expressly asked the Court to determine it.
The Court points out that by the terms of the French text of
Article 47 (art. 47), it may only "être saisie d'une affaire" (be
seised of a case) within the period of three months provided for in
Article 32 (art. 32). The use of the verb "saisir" appears to be
incompatible with the interpretation of the word "referred" that the
Delegate of the Commission seemed to be advocating. In order to seise
a court, it is not sufficient to decide to seise it. The decision must
be implemented. The same applies, moreover, to the word "refer".
Besides, any other reading of Article 32 para. 1 and Article 47
(art. 32-1, art. 47) would be likely to produce - as regards one of the
conditions to be satisfied by the Contracting States or even by
individuals, non-governmental organisations or groups of individuals
when applying to the Commission itself - results contrary to the letter
and spirit of Article 26 (art. 26) in fine and to the case-law
established in the matter from the very beginning.
That being so, the finding is inescapable that the Commission
exceeded - albeit by only one day - the time allowed it. Furthermore,
no special circumstance of a nature to suspend the running of time or
justify its starting to run afresh is apparent from the file.
The request bringing the case before the Court is consequently
inadmissible as it was made out of time.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that it cannot deal with the merits of the case.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 22 September 1993.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar