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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> DI PEDE v. ITALY - 15797/89 [1996] ECHR 40 (26 September 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/40.html
Cite as: [1996] ECHR 40
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In the case of Di Pede v. Italy (1),
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 Rules of Court B (2), as a Chamber composed of
the following judges:
Mr R. Bernhardt, President,
Mr F. Matscher,
Mr C. Russo,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr U. Lohmus,
Mr E. Levits,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 29 March and 29 August 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 83/1995/589/675. 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.
2. Rules of Court B, which came into force on 2 October 1994, apply
to all cases concerning the States bound by Protocol No. 9 (P9).
________________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 18 September 1995, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 15797/89) against the Italian Republic lodged with the Commission
under Article 25 (art. 25) by an Italian national,
Mr Francesco Paolo Di Pede, on 3 July 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 of the Convention (art. 6-1) and
Article 1 of Protocol No. 1 (P1-1).
2. In response to the enquiry made in accordance with
Rule 35 para. 3 (d) of Rules of Court B, the applicant stated that he
wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 31).
3. On 29 September 1995 the President of the Court decided that,
in accordance with Rule 21 para. 7 and in the interests of the proper
administration of justice, this case and the case of Zappia
v. Italy (1) should be heard by the same Chamber. The Chamber to be
constituted for that purpose included ex officio Mr C. Russo, the
elected judge of Italian nationality (Article 43 of the Convention)
(art. 43), and Mr R. Bernhardt, the Vice-President of the Court
(Rule 21 para. 4 (b)). On the same day, in the presence of the
Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the
names of the other seven members, namely Mr B. Walsh, Mr R. Macdonald,
Mr A.N. Loizou, Mr J.M. Morenilla, Mr M.A. Lopes Rocha, Mr L. Wildhaber
and Mr E. Levits (Article 43 in fine of the Convention and
Rule 21 para. 5) (art. 43). Subsequently Mr U. Lohmus and
Mr F. Matscher, substitute judges, replaced Mr Macdonald and Mr Walsh,
who were unable to take part in the further consideration of the case
(Rules 22 para. 1 and 24 para. 1).
_______________
1. 85/1995/591/677.
_______________
4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
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 39 para. 1 and 40). Pursuant to the order made in consequence,
the Registrar received the applicant's claims for just satisfaction on
8 January 1996 and the Government's memorial on 17 February 1996.
5. On 21 February 1996 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 President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
28 March 1996. 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;
(b) for the Commission
Mr B. Conforti, Delegate;
(c) for the applicant
Mr G. Marchesini, avvocato, Counsel.
The Court heard addresses by the above-mentioned
representatives.
AS TO THE FACTS
I. Circumstances of the case
A. The proceedings on the merits
7. On 14 July 1978 the applicant brought proceedings against
Mr V. and Mrs L. in the Matera District Court seeking an order
requiring them to demolish a building erected in breach of the
statutory provisions on minimum distances from the boundaries of
adjacent properties and to remove four trees for the same reason. He
also sought restoration of the site to its previous state, so that
rainwater could run off without flooding his land, and the payment of
damages.
8. The first hearing was held on 13 October 1978. On 2 March and
6 April 1979 Mr Di Pede's lawyer requested an expert opinion. The
judge preparing the case for trial appointed an expert on a date which
has not been specified. On 1 June he ordered the expert to produce his
report within sixty days. A hearing listed for 12 October 1979 was
adjourned in order to allow the parties to examine the report which had
been filed in the meantime. On 7 June 1980, after four further
preparatory hearings, the judge summoned the expert to appear at a
hearing on 4 July 1980 to clarify, inter alia, the question of the
damage caused by the rainwater run-off. On the latter date the expert
asked for a further thirty days in order to file an additional report.
9. As this document was not filed until 7 July 1981, despite
reminders by the judge on 31 January and 8 May 1981, five hearings (the
first on 31 October 1980 and the last on 26 June 1981) had to be
adjourned. On 6 November 1981 the defendants' lawyer requested an
adjournment in order to examine the above report. The applicant did
not object and the judge adjourned the case until 8 January 1982. The
next ten hearings (from 15 January 1982 to 11 March 1983) were
adjourned at the request of the parties (twice jointly, seven times by
the applicant and once by the defendants). On 13 January 1984, after
six further hearings, witnesses were heard. On 8 February 1985 the
parties presented their final written submissions, after obtaining
five further adjournments. Judgment in the case was reserved on
25 February 1986.
10. On 11 March 1986 the Matera District Court found in the
applicant's favour, but ruled that new proceedings should be brought
to determine the amount of damages to be paid to him. The text of the
judgment was deposited in the registry on 7 April 1986.
11. On 24 May 1986 Mr V. and Mrs L. appealed, but the proceedings
were terminated because they had omitted to register their notice of
appeal with the Potenza Court of Appeal. On 22 December 1987, at
Mr Di Pede's request, the registrar of that court certified that the
appeal had not been registered.
B. The enforcement proceedings
12. On 10 February 1988 the applicant gave Mr V. and Mrs L. notice
to comply with the judgment of 11 March 1986. Then, on 26 April 1988,
he applied to the Matera magistrate (pretore) for an order specifying
what means were to be used to enforce discharge by his neighbours of
their obligations.
13. At the first hearing, on 2 July 1988, Mr Di Pede repeated his
application. On 1 October 1988 the magistrate appointed a surveyor and
a construction firm to oversee and carry out the works ordered in the
judgment of the Matera District Court.
14. On 28 December 1988 the surveyor sent the magistrate a report
announcing that the works had been partially completed. This was
confirmed by the applicant before the European Commission on
23 January 1995.
II. Relevant domestic law
A. The Civil Code
15. Article 2931 of the Civil Code provides:
"In the event of failure to comply with an order to perform a
specific act, the person in whose favour the order was made
may apply for it to be enforced at the expense of the person
against whom it was made in the manner laid down by the
Code of Civil Procedure."
B. The Code of Civil Procedure
16. The following two provisions of the Code of Civil Procedure are
relevant:
Article 612
"Any person wishing to enforce a court order in the event of
failure to comply with an obligation to perform a specific act
... must apply to the magistrate for the means of enforcement
to be determined.
The magistrate shall rule on the application after hearing
submissions from the person against whom the order was made.
In his order he shall designate a bailiff to enforce
compliance and the persons responsible for ensuring the
completion of any unfinished work ..."
Article 613
"The bailiff may request the assistance of the police and must
request the magistrate to take the necessary measures to
overcome any difficulties which arise in the course of the
enforcement process. The magistrate shall give his ruling in
the form of an order [decreto]."
PROCEEDINGS BEFORE THE COMMISSION
17. Mr Di Pede applied to the Commission on 3 July 1989. He
complained of (1) the length of civil proceedings followed by
enforcement proceedings (Article 6 para. 1 of the Convention)
(art. 6-1); (2) infringement of his right to peaceful enjoyment of his
possessions caused by the alleged length of the enforcement stage
(Article 1 of Protocol No. 1) (P1-1); and (3) infringement of the
principle of equality of arms on account of the obligation to pay a sum
by way of an advance on the experts' fees (Article 14 of the Convention
taken in conjunction with Article 6) (art. 14+6).
18. On 2 March 1995 the Commission declared the application
(no. 15797/89) admissible in so far as it concerned the first
two complaints and the remainder inadmissible. In its report of
6 July 1995 (Article 31) (art. 31) it expressed the opinion that there
had been a violation of Article 6 (art. 6) (twenty-three votes to six)
but that it was not necessary to examine whether there had been a
violation of Article 1 of Protocol No. 1 (P1-1) (twenty-five votes to
four). The full text of the Commission's opinion and of the
three separate opinions contained in the report is reproduced as an
annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1996-IV), 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 OF THE CONVENTION
(art. 6-1)
19. The applicant complained of the length of civil proceedings
followed by enforcement proceedings and relied on Article 6 para. 1 of
the Convention (art. 6-1), which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal ..."
A. The Government's preliminary objection
20. Without contesting the applicability of Article 6 (art. 6) to
the enforcement proceedings, the Government argued, as they had before
the Commission, that in so far as the application concerned the length
of the proceedings on the merits, it was out of time. For the purposes
of Article 26 in fine of the Convention (art. 26), the judgment of
11 March 1986 (see paragraph 10 above) was the final decision. The
enforcement proceedings could not therefore be regarded as a
second stage of the proceedings complained of; on the contrary, they
were new, separate proceedings. The "natural extension" argument put
forward by the Commission disregarded the specific features of the
Italian legal system. There were three aspects which distinguished the
two types of proceedings from each other. Firstly, the authority to
execute, without which no enforcement proceedings could take place, was
not necessarily derived from proceedings on the merits of a claim, but
could be derived from another source, as in the case of debts
(debiti pecuniari). Secondly, the parties to enforcement proceedings
might not be the same as the parties to the proceedings on the merits.
Lastly, the two stages were conducted concurrently where, for example,
a judicial decision was provisionally enforceable.
It followed that the six-month period referred to in Article 26
(art.26) in fine had begun with the deposit in the registry, on
7 April 1986, of the judgment in question, and the applicant had not
complied with the six months' rule since he had lodged his application
on 3 July 1989.
21. Like the applicant's lawyer, the Delegate of the Commission
argued that the two sets of proceedings complained of were
indissociable and that any delay imputable to the applicant as regards
the commencement of enforcement had to be assessed in the light of his
conduct during the proceedings.
22. The Court considers that it does not have to express a view on
the difference of opinion among legal writers as to whether under
Italian law enforcement proceedings are autonomous; it is with
reference to the Convention and not on the basis of national law that
the Court must decide whether, and if so when, the right asserted by
Mr Di Pede on 14 July 1978 (see paragraph 7 above) actually became
effective. It is that moment which constitutes determination of a
civil right, and therefore a final decision within the meaning of
Article 26 (art. 26) (see the Silva Pontes v. Portugal judgment of
23 March 1994, Series A no. 286-A, p. 13, para. 29).
23. In the present case, on 11 March 1986 the Matera District Court
ordered the defendants to demolish a building, remove some trees and
restore the site to its previous state. On 24 May 1986 Mr V. and
Mrs L. appealed against this decision to the Potenza Court of Appeal,
but omitted to register their notice of appeal, which entailed the
termination of the proceedings. In February 1988 Mr Di Pede, who had
learned of this on 22 December 1987, gave his neighbours notice to
comply with the judgment of 11 March 1986. Then, on 26 April 1988, he
applied to the Matera magistrate for an order specifying what means
were to be used to enforce compliance with the court's order.
In a report of 28 December 1988 the surveyor instructed to
oversee the restoration of the site to its former state informed the
magistrate that the works had been partially completed
(see paragraphs 10-14 above).
Faced with the inertia of the judge responsible for
enforcement, the applicant lodged an application with the
European Commission of Human Rights on 3 July 1989.
24. The Court considers that the enforcement proceedings must be
regarded as the second stage of the proceedings which began on
14 July 1978 (see, among other authorities, the previously cited
Silva Pontes judgment, p. 14, para. 33); it emphasises that, to date,
no final decision within the meaning of Article 26 in fine of the
Convention (art. 26) has been given. The Government's assertion that
the case has been discontinued is not borne out by the file.
The objection must accordingly be dismissed.
B. Compliance with Article 6 para. 1 (art. 6-1)
25. It remains to be decided whether a reasonable time was
exceeded. The Commission and the applicant maintain that it was. The
Government disagreed.
26. The period to be taken into consideration began on 14 July 1978
when proceedings were brought against Mr V. and Mrs L. in the
Matera District Court. The relevant period has not yet ended
(see paragraph 24 above).
27. The reasonableness of the length of proceedings must be
assessed in the light of the particular circumstances of the case and
having regard to the criteria laid down in the Court's case-law, in
particular the complexity of the case and the conduct of the applicant
and of the relevant authorities (see, among many other authorities,
mutatis mutandis, the Ausiello v. Italy judgment of 21 May 1996,
Reports of Judgments and Decisions 1996-III, p. 722, para. 19).
28. The Government pleaded the applicant's conduct. In the
proceedings on the merits, they argued, Mr Di Pede had been responsible
for more than twenty adjournments, either because he had requested them
himself or because he had not objected to requests by the defendants.
As for the enforcement proceedings, the only ones which, in the
Government's submission, should be taken into consideration, these had
ended with the discontinuation of the case. In any event, the
applicant had omitted to ask the judge responsible for the enforcement
proceedings to fix a date for a new hearing and if necessary replace
the firm which had partially completed the works.
29. Mr Di Pede argued that he could not be criticised for sometimes
agreeing to adjournments, as his attitude had been prompted by the hope
of settling the case in a climate of "mutual cooperation".
30. The Delegate of the Commission considered that the applicant's
conduct alone could not explain the length of the proceedings. During
the first stage (the judgment on the merits), one year elapsed before
an additional expert report was filed with the registry and a further
year passed between the hearing for the presentation of final written
submissions and the hearing for oral argument. As regards the
second stage, the Delegate pointed out that Mr Di Pede had the right
to have the works completed.
31. The Court observes that the two reminders to the expert issued
by the judge preparing the case for trial - the first of which,
moreover, came more than five months after expiry of the
one-month limit given on 4 July 1980 (see paragraphs 8 and 9 above) -
did not have the desired effect and that the expert should therefore
have been replaced. In addition, while it is true that the applicant
bears responsibility for part of the period he now complains of, the
Court cannot understand why so many hearings were necessary,
particularly during the proceedings on the merits, for a case which was
of no particular complexity.
Lastly, the Government's contention that the case has been
discontinued cannot be accepted; it is hard to understand how the case
could have been discontinued while part of the works had still not been
carried out.
32. Consequently, a period of more than eighteen years, for most
of which the authorities dealing with the case bear responsibility,
cannot be regarded as reasonable.
There has therefore been a breach of Article 6 para. 1
(art. 6-1).
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)
33. Mr Di Pede also complained of an infringement of his right to
the peaceful enjoyment of his possessions on account of the failure to
complete the works ordered by the Matera District Court. He relied on
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 (P1-1) 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."
34. The Government made no observation.
35. Like the Commission, the Court does not consider it necessary,
in view of the circumstances of the case and the conclusion in
paragraph 32 above, to determine whether there has been a breach of
Article 1 of Protocol No. 1 (P1-1) (see the Zanghì v. Italy judgment
of 19 February 1991, Series A no. 194-C, p. 47, para. 23).
III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
36. Under Article 50 of the Convention (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
37. The applicant complained of the Italian authorities' incapacity
to enforce the judgment of 11 March 1986 and the anxiety due to the
length of the proceedings. He claimed 1,000,000,000 Italian lire (ITL)
for pecuniary and non-pecuniary damage and an additional sum of
ITL 375,904,000, corresponding in substance to the damage caused to the
building on his land.
38. The Government submitted that if the Court found a violation
of the Convention, that finding would constitute sufficient just
satisfaction for the non-pecuniary prejudice alleged. The applicant
had not proved the existence of pecuniary loss.
39. The Delegate of the Commission left the matter to the
discretion of the Court, which, making an assessment on an equitable
basis, and having regard to the information in its possession and its
case-law on the question, decides to award Mr Di Pede ITL 15,000,000
for damage.
B. Costs and expenses
40. The applicant did not seek reimbursement of the costs and
expenses incurred before the Italian courts and the Commission. In
respect of his costs for the proceedings before the Court, he applied
for and obtained legal aid amounting to a total of 9,392 French francs.
C. Default interest
41. According to the information available to the Court, the
statutory rate of interest applicable in Italy at the date of adoption
of the present judgment is 10% per annum.
FOR THESE REASONS, THE COURT
1. Dismisses by eight votes to one the Government's preliminary
objection;
2. Holds by eight votes to one that there has been a breach of
Article 6 para. 1 of the Convention (art. 6-1);
3. Holds unanimously that it is not necessary to consider the
case from the standpoint of Article 1 of Protocol No. 1
(P1-1);
4. Holds by eight votes to one that the respondent State is to
pay the applicant, within three months,
15,000,000 (fifteen million) Italian lire for damage, and that
simple interest at an annual rate of 10% shall be payable from
the expiry of the above-mentioned three months until
settlement;
5. Dismisses unanimously 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 26 September 1996.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 55 para. 2 of Rules of Court B, the dissenting
opinion of Mr Morenilla is annexed to this judgment.
Initialled: R. B.
Initialled: H. P.
DISSENTING OPINION OF JUDGE MORENILLA
1. I regret that I cannot agree with the opinion of the majority
in this case, and refer in that connection to my dissenting opinions
in the Silva Pontes v. Portugal (1) and Zappia v. Italy (2) judgments.
_______________
1. Judgment of 23 March 1994, Series A no. 286-A.
2. Judgment of 26 September 1996, Reports of Judgments and
Decisions 1996-IV.
_______________
2. To explain my position correctly, I persist in maintaining that
in the present case the correct approach, unlike what the majority have
done, is to "dissociate" for the purposes of Articles 26 and
6 para. 1 of the Convention (art. 26, art. 6-1) the declaratory and
enforcement phases of civil procedure, which should be regarded as
two clearly separated and autonomous stages. Although enforcement
proceedings are a consequence of the judicial decision on the merits
and although in a number of legal systems, especially those derived
from Roman law, it is the courts which have jurisdiction to ensure
execution of their own decisions on the merits, one type of proceedings
follows the other and each has its own specific legal features.
A party in whose favour judgment has been given is free to bring
enforcement proceedings or not, to reach a friendly settlement in the
case or to wait for an extra-judicial solution which suits him. In
addition, the varied nature of the acts required to be performed to
ensure the effective exercise of the contested right means that
judicial enforcement proceedings also vary in type. In this case there
was an obligation to perform a specific act, which by its very nature
requires the assent of the party seeking enforcement, who may ask the
court to specify the means of enforcement. The present case is
therefore a good example of the scope of the initiative accorded to the
plaintiff in civil proceedings, in both of their procedural phases.
3. As regards the Government's objection concerning the late
submission of the application (Article 26 of the Convention) (art. 26),
I consider that the complaint relating to the excessive length of the
proceedings on the merits falls outside the jurisdiction of the
Strasbourg institutions because those proceedings, which were
declaratory in nature, had ended with a final judgment of the
Matera District Court, deposited in the registry on 7 April 1986,
allowing the applicant's claims. That judgment became final because
no appeal in due form had been lodged; at Mr Di Pede's request, the
court's registrar certified that no notice of appeal had been
registered (see paragraph 11 of the present judgment). Mr Di Pede
applied to the Commission on 3 July 1989, that is more than two and a
half years after expiry of the six-month limit laid down by Article 26
(art. 26) for lodging an admissible application concerning his
complaints of procedural defects during the stage when the merits of
his claim were being considered.
On the other hand, the complaint concerning the excessive
length of the enforcement proceedings, brought by the applicant - and
so late - in order to obtain enforcement of the judgment against the
defendants Mr V. and Mrs L., was admissible for the purposes of
Article 26 of the Convention (art. 26) because those proceedings are
still pending. Accordingly, the Government's objection must be
rejected only in part, because in my opinion it should be limited to
the declaratory stage of the proceedings.
4. On 26 April 1988 Mr Di Pede asked the pretore to specify the
means of enforcement of the judgment by which the defendants were
ordered to demolish a building, remove some trees and restore the site
in issue to its former state. The judge subsequently appointed a
surveyor and a construction firm. Nine months later the work had been
partially completed. There is nothing in the file to show what
Mr Di Pede thought of this work, the report on which was sent to him,
at his request, on 2 October 1989, nor that he applied to the bailiff
or the judge for measures "to overcome any difficulties which arise in
the course of the enforcement process" (Article 613 of the
Italian Code of Civil Procedure).
This long procedural passivity after the decision of the judge
responsible for enforcement was the decisive factor leading to the
situation the applicant complained of. Italian law relating to
obligations to perform a specific act, where it is a strict rule that
the parties must take the initiative, requires the party seeking
enforcement to ensure that the judgment is complied with and to request
the courts to take the necessary steps to deal with any difficulties
which might arise in the enforcement process (see Articles 612 and 613
of the Code of Civil Procedure, paragraph 16 of the judgment). "[T]he
hope of settling the case in a climate of 'mutual cooperation'" which
Mr Di Pede's lawyer advanced as an explanation (see paragraph 29 of the
judgment), while entirely understandable, is incompatible with a
complaint of violation of a fundamental right which, because of its
absolute character, does not allow of exceptions to accommodate the
personal preferences of the alleged victims of the State authorities'
actions.