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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> VENDITTELLI v. ITALY - 14804/89 [1994] ECHR 23 (18 July 1994)
URL: http://www.bailii.org/eu/cases/ECHR/1994/23.html
Cite as: (1995) 19 EHRR 464, [1994] ECHR 23, 19 EHRR 464
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In the case of Vendittelli 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 Thór Vilhjálmsson,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr C. Russo,
Mr A. Spielmann,
Mrs E. Palm,
Mr A.N. Loizou,
Mr G. Mifsud Bonnici,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 24 February and
21 June 1994,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
* Note by the Registrar. The case is numbered 24/1993/419/498.
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.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 12 July 1993,
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. 14804/89) against the Italian Republic
lodged with the Commission under Article 25 (art. 25) by an
Italian national, Mr Manlio Vendittelli, on 11 January 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 Article 6 para. 1
(art. 6-1) of the Convention and Article 1 of Protocol No. 1
(P1-1).
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 25 August 1993,
in the presence of the Registrar, the President drew by lot the
names of the other seven members, namely Mr Thór Vilhjálmsson,
Mr L.-E. Pettiti, Mr A. Spielmann, Mr J. De Meyer, Mrs E. Palm,
Mr A.N. Loizou and Mr G. Mifsud Bonnici (Article 43 in fine of
the Convention and Rule 21 para. 4) (art. 43). Subsequently,
Mr B. Walsh, substitute judge, replaced Mr De Meyer, who was
unable to take part in the further consideration of the case
(Rules 22 para. 1 and 24 para. 1).
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 the Government's
memorial on 8 December 1993. In a letter of 7 October 1993 the
applicant's lawyer had said that he would not be filing a
memorial. The Delegate of the Commission did not make any
observations in writing.
5. On 10 November 1993 the Commission produced the file on
the proceedings before it, as requested by the Registrar on the
President's instructions.
6. 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 21 February 1994. 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 E. Selvaggi, Director of Human Rights,
Department of Criminal Affairs,
Ministry of Justice, Counsel;
(b) for the Commission
Mr S. Trechsel, Delegate;
(c) for the applicant
Mr A. Sinagra, avvocato, Counsel.
The Court heard addresses by them and also replies to its
questions.
7. In letters of 10 and 14 March 1994 the Government
provided additional information.
AS TO THE FACTS
8. Mr Manlio Vendittelli, an architect, lives in Rome.
9. On 19 May 1986 the Rome municipal police (vigili urbani)
sealed his flat, on the ground that he had infringed the
town-planning regulations.
10. On 20 May 1986 the Rome magistrate (pretore) confirmed
the sequestration (sequestro) and criminal proceedings were
instituted against the applicant. Mr Vendittelli lodged three
applications for release of his property from sequestration on
30 May 1986 and 5 and 26 June 1987 but they were dismissed on
12 June 1986 and 9 July 1987 for reasons of prevention and of
preservation of evidence (per fini preventivi e cautelari).
11. On 25 July 1987 the applicant sought an early hearing,
pointing to the damage caused him by his being unable to enjoy
the benefit of his property. The trial was initially set down
for 17 November 1987 but was postponed to 15 December 1987.
In a judgment delivered the same day, which was filed in
the registry on 30 December 1987 and notified on 1 December 1988,
the magistrate imposed on Mr Vendittelli, who was present when
the judgment was delivered, a suspended sentence of twenty days'
imprisonment and a fine of ten million lire, without any entry
in the criminal records, for having carried out works in his flat
without a permit from the mayor (concessione edilizia).
12. The applicant appealed against this decision within three
days of its delivery and filed his pleadings on 10 December 1988;
the twenty-day period allowed for filing grounds of appeal began
to run on the day of service of the judgment. The hearing in the
Rome Court of Appeal began on 2 May 1989. It was adjourned on
8 January and 27 March 1990 - on the first occasion at the
request of Mr Vendittelli, whose doctor had ordered him to rest
for five days, and on the second occasion because his counsel was
unable to attend. In the meantime, on 13 January 1990, the
lawyer had already applied for the trial to be resumed.
13. In a judgment of 4 July 1990, which was filed in the
registry on the same day and became final and therefore
enforceable on 30 October 1990, the Court of Appeal held that
the offence had been amnestied and the prosecution barred as a
result of a presidential decree that had been issued on
12 April 1990. It did not, however, order that the property
should be released from sequestration, nor was the judgment
notified to the applicant, who had to obtain a copy from the
registry on 5 December 1990. In the meantime, by a letter of
19 July 1990, Mr Vendittelli had applied for a hearing to be
fixed.
14. On 19 November 1990 the file was sent to the magistrate
for placing in the archives. In a letter of 10 December 1990 to
the President of the Rome Court of Appeal, which was sent on
17 December to the magistrate's court (pretura), the applicant
again sought to have his property released from sequestration.
He complained of the bad state of his flat.
15. On 17 December the registrar of the magistrate's court
sent the file to the magistrate for execution of the judgment,
that is to say release from sequestration. On 31 January 1991
the magistrate held that he had no jurisdiction and ordered that
the file should be returned to the Court of Appeal.
16. It arrived the next day. The central registry of the
Court of Appeal recorded the point raised regarding execution
(incidente di esecuzione) and on 11 February 1991 sent the file
to the registry of the Second Criminal Division. On 10 April and
9 May 1991 Mr Vendittelli again sought to have his property
released from sequestration.
17. In an order of 17 May 1991, which was filed on 21 May,
sent to Rome Town Hall on 23 May "for execution of what was
ordered in it" and served on the applicant on 3 June, the Rome
Court of Appeal allowed Mr Vendittelli's application and also
noted that the mayor had issued a permit in the meantime.
PROCEEDINGS BEFORE THE COMMISSION
18. Mr Vendittelli applied to the Commission on
11 January 1989. He complained of the length of the criminal
proceedings against him (Article 6 para. 1 of the Convention)
(art. 6-1) and of an infringement of his right to the peaceful
enjoyment of his possessions arising from the length of the
proceedings and from the continued sequestration of his flat
after the Rome Court of Appeal's judgment of 4 July 1990
(Article 1 of Protocol No. 1) (P1-1).
19. The Commission declared the application (no. 14804/89)
admissible on 14 October 1992. In its report of 31 March 1993
(made under Article 31) (art. 31), it expressed the unanimous
opinion that
(a) there had been a breach of Article 6 para. 1 (art. 6-1)
of the Convention by reason of the excessive length of the
proceedings;
(b) it was unnecessary to state its opinion on the complaint
under Article 1 of Protocol No. 1 (P1-1) relating to the length
of the criminal proceedings; and
(c) there had been a breach of Article 1 of Protocol No. 1
(P1-1) on account of the failure to remove the seals after the
judgment of the Court of Appeal.
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 293-A 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) OF THE
CONVENTION
20. The applicant submitted that the length of the criminal
proceedings against him had been contrary to Article 6 para. 1
(art. 6-1) of the Convention, which provides:
"In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within
a reasonable time by [a] ... tribunal ..."
The Government rejected this complaint but the Commission
accepted it.
21. The period to be taken into consideration began on
20 May 1986 with the decision by the Rome magistrate, who upheld
the placing of seals on Mr Vendittelli's flat (see paragraph 10
above). It ended on 30 October 1990, when the Rome Court of
Appeal's decision became final (see paragraph 13 above and, as
the most recent authority and mutatis mutandis, the Raimondo
v. Italy judgment of 22 February 1994, Series A no. 281-A, p. 20,
para. 42). It therefore covers four years, five months and ten
days.
22. 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.
23. The Government stated that the length of the proceedings
in the two courts concerned could not be regarded as excessive.
They blamed the applicant for having at first instance sought to
have his property released from sequestration rather than to have
his case dealt with more quickly (see paragraph 10 above) and for
having on appeal twice sought adjournments (see paragraph 12
above).
24. In Mr Vendittelli's submission, there had been legitimate
reasons for adjourning the hearings on appeal (see paragraph 12
above) and the proceedings had been delayed for only a few days.
The judicial authorities had waited eleven months and fifteen
days before notifying the decision of the magistrate's court
(see paragraph 11 above) and did not serve the Court of Appeal's
decision of 4 July 1990 at all (see paragraph 13 above).
25. The Court reiterates that only delays attributable to the
State may justify a finding that a "reasonable time" has been
exceeded (see, among other authorities, the Monnet v. France
judgment of 27 October 1993, Series A no. 273-A, p. 12,
para. 30).
26. Like the Commission, it notes, firstly, that the case was
not particularly complex.
27. It considers, furthermore, that Mr Vendittelli bears some
responsibility for the prolongation of the proceedings in the
Court of Appeal as, although legitimate, the two adjournments he
sought (see paragraph 12 above) caused a delay of about six
months, which, in proceedings lasting fourteen months in all, was
a fairly substantial one; moreover, they enabled the applicant
to take advantage of the amnesty.
28. As to the conduct of the authorities, the Court notes
that it took eleven months and fifteen days for the magistrate's
court to notify its decision of 15 December 1987. Nevertheless,
seeing that Mr Vendittelli had been present when it was
delivered, he could reasonably have been expected to obtain a
copy of the judgment himself it was sent to the registry on
30 December 1987 (see paragraph 11 above) and draw up his
grounds of appeal from that moment.
The Court of Appeal's judgment which was filed on the
same day that it was delivered (see paragraph 13 above) and not
five months later, as the Commission indicated was admittedly
never served. However, that failure had no effect on the length
of the proceedings since the matter was one of taking formal note
of an amnesty.
29. Having regard to all the circumstances of the case, to
the applicant's conduct, to the fact that two courts dealt with
the case, and to the outcome, the Court does not consider the
overall length of the trial to have been excessive. There has
accordingly been no breach of Article 6 para. 1 (art. 6-1).
II. ALLEGED VIOLATIONS OF ARTICLE 1 OF PROTOCOL NO. 1 (P1-1)
30. Mr Vendittelli also maintained that the length of the
criminal proceedings against him and the continued sequestration
of his flat (see paragraph 13 above) had infringed Article 1 of
Protocol No. 1 (P1-1), which provides:
"Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be
deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by
the general principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it
deems necessary to control the use of property in
accordance with the general interest or to secure the
payment of taxes or other contributions or penalties."
A. Article 1 of Protocol No. 1 (P1-1) taken together with
Article 6 para. 1 of the Convention (art. 6-1)
31. The applicant argued that the length of the proceedings
deprived him of the enjoyment of his property.
32. The Government did not express a view.
33. The Commission considered that it was unnecessary to rule
on the issue.
34. The Court points out that one and the same fact may fall
foul of more than one provision of the Convention and Protocols
(see, as the most recent authority, the Wiesinger v. Austria
judgment of 30 October 1991, Series A no. 213, p. 27, para. 77).
In the instant case the sequestration of the flat was a
measure ancillary to the criminal proceedings. That being so,
given the conclusion in paragraph 29 above, no breach has been
made out in this respect.
B. Article 1 of Protocol No. 1 (P1-1) taken alone
35. The applicant also complained that the Rome Court of
Appeal had waited for about eleven months after the judgment of
4 July 1990 that ended the criminal proceedings before ordering
the release of his property from sequestration (see
paragraphs 13 and 17 above). During that period he had not been
able to enjoy the use of his flat or dispose of it as he wished.
36. The Government put forward several reasons for this lapse
of time. Firstly, the registries of the courts concerned had to
carry out various formalities (see paragraphs 14-16 above). Then
it had to be verified that Mr Vendittelli was the owner of the
sequestered flat. Lastly, the period to be taken into
consideration when the alleged delay in returning the property
was being assessed began on 7 November 1990, the date on which
the applicant obtained the building permit making the works that
had been carried out lawful.
37. The Delegate of the Commission submitted that the
starting-point should be taken to be 4 July 1990 (see
paragraph 13 above). In the case of a judgment implementing an
amnesty, it was unnecessary to wait for it to become final since
it was unlikely that an appeal would be lodged with a view to
having the sequestration continued.
38. Like the Commission, the Court finds that the impugned
measure was provided for by law and was designed not to deprive
the applicant of his property but only to prevent him from using
it. Consequently, the second paragraph of Article 1 of
Protocol No. 1 (P1-1) applies in this instance.
The sequestration, which was part of the criminal
proceedings, had two objectives: to preserve the evidence of the
offence and to prevent any aggravation of the offence. The
measure therefore had a legitimate aim.
39. In accordance with its case-law (see the Raimondo v.
Italy judgment previously cited, p. 20, para. 42), the Court
considers that the time allowed for the prosecution to appeal on
points of law must be taken into account. It will therefore
examine the applicant's complaint in respect of the period
running from 30 October 1990 to 21 May 1991, when the Court of
Appeal's order that the property should be released from
sequestration was filed in the registry (see paragraph 17 above).
The date of 7 November 1990 indicated by the Government
as being the day on which Mr Vendittelli received the building
permit does not appear either in the case file or in the
documents supplied by the Government themselves. Furthermore,
the formalities relied on do not explain why release of the
property from sequestration was not ordered at least as soon as
the Court of Appeal's judgment of 4 July 1990 became final.
Admittedly, the applicant sent his letter of 10 December 1990
(see paragraph 14 above) to the wrong judicial authority, but he
thereby helped to set in motion the proceedings relating to the
execution of the judgment (see paragraphs 14 and 15 above).
40. The Court concludes that the Court of Appeal ought to
have ordered the immediate release of the property from
sequestration without even waiting for Mr Vendittelli to raise
the issue, as the considerations justifying sequestration until
30 October 1990 (see paragraph 38 above) had ceased to exist
thereafter. Continuing the sequestration after that date until
21 May 1991 (see paragraph 39 above) therefore placed a
disproportionate burden on the applicant. There has accordingly
been a breach of Article 1 of Protocol No. 1 (P1-1) in this
respect.
III. APPLICATION OF ARTICLE 50 (art. 50)
41. Under Article 50 (art. 50) of the Convention,
"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."
42. At the hearing, counsel for Mr Vendittelli submitted
several documents containing his client's claims for the damage
sustained. He also sought reimbursement of costs and expenses.
43. The Court notes that Rule 50 of its Rules of Court lays
down that claims must be filed at least one month before the
opening of the oral proceedings.
Even if allowance is made for the difficulty of
assembling all the necessary vouchers, it considers that the time
allowed in this case for making these claims was sufficient.
44. That being so, the claims must be dismissed as being out
of time.
FOR THESE REASONS, THE COURT
1. Holds by five votes to four that there has been no breach
of Article 6 para. 1 (art. 6-1) of the Convention;
2. Holds by five votes to four that there has been no
breach of Article 1 of Protocol No. 1 (P1-1) taken
together with Article 6 para. 1 (art. 6-1);
3. Holds unanimously that there has been a breach of
Article 1 of Protocol No. 1 (P1-1) in that the
sequestration of the applicant's flat was continued
beyond 30 October 1990;
4. Dismisses unanimously the claims for just satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
18 July 1994.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Acting Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the joint
dissenting opinion of Mr Walsh, Mr Spielmann, Mrs Palm and
Mr Loizou is annexed to this judgment.
Initialled: R.R.
Initialled: H.P.
JOINT DISSENTING OPINION OF JUDGES WALSH, SPIELMANN,
PALM AND LOIZOU
1. We regret that we cannot join with the majority of the
Court in their judgment on the questions of whether there were
breaches of Article 6 para. 1 (art. 6-1) of the Convention and
of Article 1 of Protocol No. 1 combined with Article 6 para. 1
(P1-1, art. 6-1).
2. The stark fact is that the proceedings against the
applicant in what, by any standards, was a simple case of whether
or not there had been breach of the planning laws covered a
period of four and a half years. Even allowing for the delay of
about six months attributable to the applicant, we are of opinion
that the time taken was inexcusable in the circumstances of the
case, the most important of which was that during the period in
question the applicant was locked out of his home by the public
authorities, a situation which should have added some sense of
urgency to the prosecuting and judicial authorities. We are
satisfied that there has been a breach of Article 6 para. 1
(art. 6-1).
3. We agree with the majority of the Court that there has
been a breach of Article 1 of Protocol No. 1 (P1-1) for the
reasons stated by the Court.
4. In our opinion that breach of Article 1 of
Protocol No. 1 (P1-1) is the direct result of and inextricably
linked with the breach of Article 6 para. 1 (art. 6-1) and
therefore there has also been a breach of Article 1 of
Protocol No. 1 combined with Article 6 para. 1 (P1-1, art. 6-1).