ITEMID: 001-72930
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2006
DOCNAME: CASE OF RICCARDI PIZZATI v. ITALY
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Luzius Wildhaber;Nicolas Bratza
TEXT: 12. The applicant was born in 1924 and lives in Pianello Val Tidone (Piacenza).
13. On 8 April 1974 the applicant sued Mr P. in the Piacenza District Court seeking damages for the loss she had sustained as a result of works carried out by her neighbour which had resulted, among other things, in sewage being dumped on her property.
14. Preparation of the case for trial began on 11 May 1974. Of the sixty- six hearings listed between 11 November 1974 and 15 June 1995 nineteen were adjourned at the request of the parties, three at the request of the applicant, two at the request of Mr P., four by the court of its own motion, and one on account of a lawyers’ strike; twelve were devoted to organising expert evidence, twelve to the filing of documents and the hearing of witnesses, twelve to attempts to seek a friendly settlement, and one was adjourned in order to allow the parties to make their submissions.
15. In the meantime Mr P.’s lawyer had filed a death certificate with the registry in respect of his client. At a hearing on 29 February 1996 the judge declared the proceedings interrupted. The proceedings were resumed on 25 September 1996 and the judge fixed 11 June 1998 as the date for hearing submissions. On an unspecified date the case was referred to the bench of judges dealing with the oldest cases (sezioni stralcio). At a hearing on 18 November 1999 the parties requested that a date be fixed for hearing oral submissions and the judge adjourned the case to 8 June 2000. The hearing was not held on that date, but adjourned to 12 June 2000. On that date judgment was reserved.
16. In a judgment of 23 October 2000, the text of which was deposited with the registry on the same day, the Piacenza Court allowed the applicant’s claim in part and ordered Mr P.’s heir to move the septic tank that had not been installed at the prescribed distance and to replace part of the applicant’s sullage pipes. It also awarded her 15,000,000 Italian lire (7,747 euros (EUR)).
17. On 17 October 2001 the applicant lodged an application with the Ancona Court of Appeal under Law no. 89 of 24 March 2001, known as the “Pinto Act”, complaining of the excessive length of the above-described proceedings. The applicant requested the court to conclude that there had been a breach of Article 6 § 1 of the Convention and to order the Italian Government to pay compensation for the non-pecuniary damage sustained. The applicant claimed 200,000,000 Italian lire (EUR 103,291.37) in non-pecuniary damages and an unquantified amount for costs and expenses.
18. In a decision of 31 January 2002, the text of which was deposited with the registry on 13 February 2002, the Court of Appeal found that the proceedings had been excessively long. It held as follows:
“In the instant case, even if the proceedings are not entirely straightforward given the subject of the proceedings (a bitter dispute between neighbours), which has given rise to many attempts at conciliation, hearings of witnesses and an expert report, the length of the proceedings - over 26 years – nonetheless does not appear proportionate to the objective importance and the consequences of the judicial proceedings.
With regard to the conduct of the parties, account cannot be taken of the extension of the length of the proceedings owing to legitimate requests or the time necessary to rationalise and ensure the normal conduct of the proceedings given that proceedings are unreasonably long where the applicant cannot be blamed for seeking to prolong the proceedings in his or her own interests (requests for adjournment of hearings, needless objections etc.).
With regard to the conduct of the judicial authorities, special consideration must be given, in the instant case, to the entire length of the proceedings for one level of jurisdiction with a great many adjournments which contributed to prolonging the proceedings beyond a reasonable time by causing long and unjustified interruptions (in terms of the Convention, which obliges member States to organise their judicial system in such a way as to ensure compliance with the obligations set forth in Article 6 § 1).
In calculating compensation regard will be had only to the period beyond the reasonable time (in accordance with section 2(3)(a) of Law no. 89/2001): clearly no complaint can be made in respect of conduct on the part of persons involved in the proceedings that is in accordance with the law (such as adjournments necessary for the proper conduct of the proceedings).
However, the delay by the judicial authorities in giving a final decision was not in accordance with the law: there is absolutely no justification for such delay given that effect must be given to the right to bring legal proceedings in defence of one’s own interests (Article 24 of the Constitution) by a decision rendered within a reasonable time in order to ensure that justice is done in compliance with the procedural guarantees established by the legislature; while having regard to the “chronic” shortage of staff, the delay in the work and the attempt to find a new balance after the latest judicial and procedural reforms.
Regarding the calculation of just satisfaction, the pecuniary damage flowing directly from the delay in giving the final decision cannot be considered to have been made out: the damage cannot be objectively proved either by the supposed intention of the applicant to sell the property or by the costs and expenses, which, apart from the fact that they were not referred to by the applicant, have in any event been dealt with by the decision.
With regard to non-pecuniary damage, the criterion to be applied is the one indicated under Art. 1226 of the Civil Code, reiterated in Art. 2056, to which s. 2(3) of Law no. 89/2001 refers.
The compensation is quantified at 5,000 euros (inclusive of interest and monetary depreciation – without going into details – see Cass 2910/1995, to which will be added interest accrued only in respect of the time that elapses between the decision and payment), on account of the special nature of the case, the subject of the dispute and the period beyond the reasonable time, the number of levels of jurisdiction and the special subjective situation: on account of the length of the proceedings the applicant has undoubtedly suffered anxiety and distress as a result of waiting for the final decision and uncertainty as to the outcome of the proceedings.”
The Court of Appeal dismissed the claim for pecuniary damages on the ground that the applicant had failed to substantiate it, awarded her EUR 5,000 on an equitable basis in compensation for non-pecuniary damage and EUR 860 for costs and expenses. The decision was served on the applicant on 13 March 2002.
19. The applicant appealed to the Court of Cassation against that decision on 21 May 2002 on the ground that the amount awarded her by the Court of Appeal was inadequate.
20. However, in a judgment of 12 November 2002, the text of which was deposited with the registry on 3 January 2003, the Court of Cassation declared the appeal inadmissible on the ground that it had been lodged out of time. The authorities paid the amounts due on 23 December 2003.
21. In a letter of 25 August 2003 the applicant informed the Court of the outcome of the domestic proceedings and asked it to resume its examination of her application.
22. Award of just satisfaction in the event of a breach of the requirement to dispose of proceedings within a reasonable time and amendment to Article 375 of the Code of Civil Procedure
CHAPTER II
Just satisfaction
Section 2
Entitlement to just satisfaction
“1. Anyone sustaining pecuniary or non-pecuniary damage as a result of a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, on account of a failure to comply with the ‘reasonable-time’ requirement in Article 6 § 1 of the Convention, shall be entitled to just satisfaction.
2. In determining whether there has been a violation, the court shall have regard to the complexity of the case and, in the light thereof, the conduct of the parties and of the judge deciding procedural issues, and also the conduct of any authority required to participate in or contribute to the resolution of the case.
3. The court shall assess the quantum of damage in accordance with Article 2056 of the Civil Code and shall apply the following rules:
(a) only damage attributable to the period beyond the reasonable time referred to in subsection 1 may be taken into account;
(b) in addition to the payment of a sum of money, reparation for non-pecuniary damage shall be made by giving suitable publicity to the finding of a violation.”
Section 3 Procedure
“1. Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under Article 11 of the Code of Criminal Procedure to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending.
2. The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by Article 125 of the Code of Civil Procedure.
3. The application shall be made against the Minister of Justice where the alleged violation has taken place in proceedings in the ordinary courts, the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners. In all other cases, the application shall be made against the Prime Minister.
4. The court of appeal shall hear the application in accordance with Articles 737 et seq. of the Code of Civil Procedure. The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of State Counsel (Avvocatura dello Stato) at least fifteen days prior to the date of the hearing before the Chamber.
5. The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in section 2 is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing. The parties may lodge memorials and documents up till five days before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties.
6. The court shall deliver a decision within four months after the application is lodged. An appeal shall lie to the Court of Cassation. The decision shall be enforceable immediately.
7. To the extent that resources permit, payment of compensation to those entitled shall commence on 1 January 2002.”
Section 4 Time-limits and procedures for lodging applications
“A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within six months from the date when the decision ending the proceedings becomes final. Claims lodged after that date shall be time-barred.”
Section 5 Communications
“If the court decides to allow an application, its decision shall be communicated by the registry to the parties, to State Counsel at the Court of Audit to enable him to start an investigation into liability, and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity.”
Section 6 Transitional provisions
“1. Within six months after the entry into force of this Act, anyone who has lodged an application with the European Court of Human Rights in due time complaining of a violation of the ‘reasonable-time’ requirement contained in Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, shall be entitled to lodge a claim under section 3 hereof provided that the application has not by then been declared admissible by the European Court. In such cases, the application to the court of appeal must state when the application to the said European Court was made.
2. The registry of the relevant court shall inform the Minister for Foreign Affairs without delay of any claim lodged in accordance with section 3 and within the period laid down in subsection 1 of this section.”
Section 7 Financial provisions
“1. The financial cost of implementing this Act, which is put at 12,705,000,000 Italian lire from 2002, shall be met by releasing funds entered in the three-year budget 2001-03 in the chapter concerning the basic current-liability estimates from the ‘special fund’ in the year 2001 forecast of the Ministry of the Treasury, Economy and Financial Planning. Treasury deposits shall be set aside for that purpose.
2. The Ministry of the Treasury, Economy and Financial Planning is authorised to make the appropriate budgetary adjustments by decree.”
23. On appeal from decisions delivered by the courts of appeal in “Pinto” proceedings, the Court of Cassation, sitting as a full court (Sezioni Unite), gave four judgments (nos. 1338, 1339, 1340 and 1341) on 27 November 2003, the texts of which were deposited with the registry on 26 January 2004, quashing the appeal court’s decision and remitting the case for a rehearing. It held that “the case-law of the Strasbourg Court is binding on the Italian courts regarding the application of Law no. 89/2001”.
In its judgment no. 1340 it affirmed, inter alia, the principle that
“the court of appeal’s determination of non-pecuniary damage in accordance with section 2 of Law no. 89/2001, although inherently based on equitable principles, must be done in a legally defined framework since reference has to be made to the amounts awarded, in similar cases, by the Strasbourg Court. Some divergence is permissible, within reason.”
24. Extracts from the plenary Court of Cassation’s judgment no. 1339 deposited with the registry on 26 January 2004
“... 2.- The present application poses the fundamental question of what legal effect must be given – in implementing the Law of 24 March 2001 no. 89, and in particular in determining the non-pecuniary damage arising out of the breach of the reasonable length of proceedings requirement – to the judgments of the European Court of Human Rights, whether considered generally as interpretative guidelines which the said Court has laid down with regard to the consequences of the said violation, or with reference to a specific case in which the European Court has already had occasion to give a judgment on the delay in reaching a decision. ...
As stipulated in section 2.1 of the said Law, the legal fact which gives rise to the right to the just satisfaction that it provides for is constituted by the “violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified in accordance with the Law of 4 August 1955 no. 848, for failure to comply with the reasonable time referred to in Article 6, paragraph 1 of the Convention.” In other words, Law no. 89/2001 identifies the fact constituting the right to compensation by reference to a specific provision of the European Convention on Human Rights. This Convention instituted a Court (the European Court of Human Rights, with its seat in Strasbourg) to ensure compliance with the provisions contained therein (Article 19). Accordingly, the competence of the said court to determine, and therefore to interpret, the significance of the said provisions must be recognised.
As the fact constituting the right conferred by Law no. 89/2001 consists of a violation of the European Convention on Human Rights, it is for the Court of the European Convention on Human Rights to determine all the elements of such a legal fact, which thus ends by being “brought into conformity” by the Strasbourg Court, whose case-law is binding on the Italian courts in so far as the application of Law no. 89/2001 is concerned.
It is not necessary therefore to pose the general problem of the relationships between the European Convention on Human Rights and the internal judicial system, which the Advocate-General (Procuratore Generale) has amply discussed in court. Whatever opinion one may have about that controversial issue and therefore about the place of the European Convention on Human Rights in the context of the sources of domestic law, it is certain that the direct implementation in the Italian judicial system of a provision of the European Convention on Human Rights, established by Law no. 89/2001 (that is, by Article 6 § 1 in the part relating to “reasonable time”), cannot diverge from the interpretation which the European Court gives of the same provision.
The opposite argument, which would permit a substantial divergence between the application accorded to Law no. 89/2001 in the national system and the interpretation given by the Strasbourg Court to the right to reasonable length of proceedings, would deprive the said Law no. 89/2001 of any justification and cause the Italian State to violate Article 1 of the European Convention on Human Rights, according to which ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’ (including the said Article 6, which provides for the right to have a case decided within a reasonable length of time).
The reason behind the enactment of Law no. 89/2001 was the need to provide a domestic judicial remedy against violations in respect of the duration of proceedings, so as to give effect to the subsidiary character of intervention on the part of the Court of Strasbourg, expressly provided for by the European Convention on Human Rights (Article 35: “the Court may only deal with the matter after all domestic remedies have been exhausted”). The European system for the protection of human rights is founded on the said principle of subsidiarity. From it derives the duty of the States which have ratified the European Convention on Human Rights to guarantee to individuals the protection of the rights recognised by the European Convention on Human Rights, above all in their own internal order and vis-à-vis the organs of the national judicial system. And this protection must be “effective” (Article 13 of the European Convention on Human Rights), that is, of a kind to remedy the claim without the need for recourse to the Strasbourg Court.
The domestic remedy introduced by Law no. 89/2001 did not previously exist in the Italian system, with the consequence that appeals against Italy in respect of a violation of Article 6 of the European Convention on Human Rights had “clogged” (the term used by rapporteur Follieri in the sitting of the Senate of 28 September 2000) the European Court. The Strasbourg Court observed, prior to Law no. 89/2001, that the said failures to comply on the part of Italy “reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy. This accumulation of breaches accordingly constitutes a practice that is incompatible with the Convention” (see the four judgments of the Court delivered on 28 July 1999 in the cases of Bottazzi, Di Mauro, Ferrari and A. P.).
Law no. 89/2001 constitutes the domestic remedy to which a “victim of a violation” (as defined by Article 34 of the European Convention on Human Rights) of Article 6 (failure to comply with the reasonable-time requirement) must have recourse before applying to the European Court to claim the “just satisfaction” provided for in Article 41 of the European Convention on Human Rights, which, when the violation exists, is only awarded by the Court “if the internal law of the High Contracting Party concerned allows only partial reparation to be made”. Law no. 89/2001 has therefore allowed the European Court to declare inadmissible applications lodged with it (including before the Act was passed) and aimed at obtaining just satisfaction provided for in Article 41 of the European Convention on Human Rights for the excessive length of proceedings (Brusco v. Italy, decision of 6 September 2001).
This mechanism for implementation of the European Convention on Human Rights and observance of the principle of subsidiarity in respect of interventions of the European Court of Strasbourg does not operate, however, in cases in which the Court holds that the consequences of the established violation of the European Convention on Human Rights have not been redressed by domestic law or that this has been done only “partially”, because in such an event the said Article 41 provides for the intervention of the European Court to protect the “victim of the violation”. In such cases an individual application to the Strasbourg Court on the basis of Article 34 of the European Convention on Human Rights is admissible (Scordino and Others v. Italy, decision of 27 March 2003) and the Court acts directly to protect the rights of the victim whom it considers not to have been adequately protected by domestic law.
The judge of the adequacy or inadequacy of the protection that the victim has had from domestic law is, obviously, the European Court, whose duty it is to apply Article 41 of the European Convention on Human Rights to ascertain whether, in the presence of a violation of a provision of the European Convention on Human Rights, the internal law has been able to fully redress the consequences of this violation.
The argument whereby, in applying Law no. 89/2001, the Italian court may follow a different interpretation from that which the European Court has given to the provisions of Article 6 of the European Convention on Human Rights (violation of which is the fact giving entitlement to the right to compensation attributed by the said national law) implies that the victim of the violation, if he or she receives reparation at national level considered inadequate by the European Court, must obtain the just satisfaction provided for in Article 41 of the European Convention on Human Rights from the latter Court. This would defeat the purpose of the remedy provided for in Italian law by Law no. 89/2001 and entail a violation of the principle of the subsidiarity of the intervention of the Strasbourg Court.
It is therefore necessary to concur with the European Court of Human Rights, which, in the above-mentioned decision on the Scordino application (concerning the inadequacy of the protection afforded by the Italian courts in implementing Law no. 89/2001), affirmed that “it follows from the principle of subsidiarity ... that the national courts must, where possible, interpret and apply domestic law in accordance with the Convention”.
... The preparatory documents of Law no. 89/2001 are even more explicit. In the report concerning the bill of Senator Pinto (proceedings of the Senate no. 3813 of 16 February 1999) it is affirmed that the compensatory mechanism proposed in the legislative initiative (and then adopted by the Act) secures for the applicant “a protection analogous to that which he or she would receive in the international court”, as the direct reference to Article 6 of the European Convention on Human Rights makes it possible to transfer to domestic level “the limits of applicability of the same provision existing at international level, limits which depend essentially on the State and on the development of the case-law of the Strasbourg authorities, especially that of the European Court of Human Rights, whose decisions must therefore guide ... the domestic court in the definition of these limits”.
... 6. – The considerations expounded in sections 3-5 of the document refer in general to the importance of the interpretative guidance of the European Court on the implementation of Law no. 89/2001 with regard to reparation for non-pecuniary damage.
In this particular instance, however, any possibility for the national court to exclude non-pecuniary damage (despite having found a violation of Article 6 of the European Convention on Human Rights) must be considered as non-existent because such is precluded by the previous decision of the European Court which, with reference to the same proceedings, had already ascertained that the unjustified delay in reaching a decision had had consequences involving non-pecuniary damage for the applicant, which the Court itself redressed for a limited period. From such a decision of the European Court it follows that, once the national court has ascertained that the violation has continued in the period following that considered in the said decision, the applicant has continued to suffer non-pecuniary damage, which must be compensated for in application of Law no. 89/2001.
It cannot therefore be maintained – as the Rome Court of Appeal has done – that compensation is not due because of the small amounts at stake in the proceedings in question. Such a reason, apart from being rendered immaterial by the fact that the European Court has already ruled that non-pecuniary damage had been sustained because of delay in the same action, is in any case incorrect, because the amount of what is at stake in an action in which non-compliance with reasonable time-limits has been ascertained can never have the effect of excluding non-pecuniary damage, given that the anxiety and distress resulting from the length of the proceedings normally also occur in cases in which the amounts at stake are small; hence this aspect may have the effect of reducing the amount of compensation but not of totally excluding it.
7 – In conclusion the decision appealed against must be quashed and the case remitted to the Rome Court of Appeal, which, in a different composition, will order payment to the applicant of the non-pecuniary damages payable as a result of the violation of the reasonable-time requirement for the period following 16 April 1996 alone, taking as a reference point payments of the same kind of damages by the European Court of Human Rights, from which it may diverge, but only to a reasonable extent (HR Court, 27 March 2003, Scordino v. Italy)”.
25. The Court of Cassation held as follows:
“...Where the victim of unreasonably lengthy proceedings dies prior to the entry into force of Law no. 89 of 2001 [known as the “Pinto Act”] this shall preclude a right [to just satisfaction] from arising and passing to the heirs, in accordance with the general rule that a person who has died cannot become entitled to a right conferred by an Act that is passed after their death...”
26. The Court of Cassation judges noted that the right to compensation for a violation of the right to a hearing within a reasonable time derived from the Pinto Act. The mechanism set in place by the European standard did not give applicants a cause of action before the domestic courts. Accordingly, the right to “just satisfaction” could neither be acquired nor transferred by a person who had already died by the time the Pinto Act came into force. The fact that the deceased had, while alive, lodged an application with the Strasbourg Court was not decisive. Section 6 of the Pinto Act did not constitute, as the applicants had maintained, a procedural standard bringing about a transfer of powers from the European Court to the domestic courts.
27. In this case, which concerned the possibility or otherwise of transferring to heirs the right to compensation deriving from a breach of Article 6 § 1 on account of the length of the proceedings, the First Division of the Court of Cassation referred the case to the full court indicating that there was a conflict between the case-law authorities, that is, between the restrictive approach taken by the Court of Cassation in the earlier judgments regarding heirs and the Pinto Act and the four judgments delivered by the Court of Cassation, sitting as a full court, on 26 January 2004 to the extent that a less strict interpretation would lead to the conclusion that this right to compensation has existed since Italy ratified the European Convention on 4 August 1955.
28. In the case giving rise to the order mentioned above referring the case to the full court (see preceding paragraph), the Court of Cassation, sitting as a full court, established the following principles, thus preventing any further conflicting decisions being given by the courts:
(i) Law no. 848 of 4 August 1955, which ratified the Convention and made it enforceable, introduced into domestic legal order the fundamental rights, belonging to the category of rights conferred on the individual by public law, provided for in the first section of the Convention and which correspond to a large extent with those set forth in Article 2 of the Constitution. In that respect the Convention provisions are confirmatory and illustrative. ...
(ii) It is necessary to reiterate the principle that the act giving rise to the right to reparation conferred by domestic law corresponds to a breach of the provision in Article 6 of the Convention, which is immediately applicable in domestic law.
The distinction between the right to a hearing within a reasonable time, introduced by the European Convention on Human Rights (or even pre-existing as a constitutionally protected value), and the right to equitable reparation, which was allegedly introduced only by the Pinto Act, cannot be allowed in so far as the protection provided by the domestic courts does not depart from that previously offered by the Strasbourg Court, the domestic courts being bound to comply with the case-law of the European Court. ...
(iii) Accordingly, the right to equitable reparation for loss sustained as a result of the unreasonable length of proceedings prior to the entry into force of Law no. 89/2001 must be acknowledged by the domestic courts even in favour of the heirs of a party who introduced the proceedings before that date, subject only to the condition that the claim has not already been lodged with the Strasbourg Court and the Court has not ruled on admissibility. ...
29. This judgment of the Court of Cassation concerned an appeal by the Ministry of Justice challenging the Court of Appeal’s award of non-pecuniary damages to a juristic person. The Court of Cassation referred to the decision reached in the case of Comingersoll v. Portugal [GC], no. 35382/97, ECHR 2000IV and, after referring to the four judgments of the full court delivered on 26 January 2004, found that its own case-law was not in line with the European Court. It held that there was no legal barrier to awarding just satisfaction to “juristic” persons according to the criteria of the Strasbourg Court. Accordingly, since the Court of Appeal had correctly decided the case the appeal was dismissed.
30. The Court of Cassation made the following observations:
“ ... [Whereas] non-pecuniary damage is the normal, albeit not automatic, consequence of a breach of the right to a hearing within a reasonable time, it will be deemed to exist, without it being necessary to specifically prove it (directly or by presumption), on the basis of the objective fact of the breach, on condition that there are no special circumstances indicating the absence of any such damage in the actual case concerned (Cass. A.P. 26 January 2004 nos. 1338 and 1339).
- the assessment on an equitable basis of compensation for non-pecuniary damage is subject – on account of the specific reference in section 2 of Law no. 89 of 24 March 2001 to Article 6 of the European Convention on Human Rights (ratified by Law no. 848 of 4 August 1955) – to compliance with the Convention, in accordance with the judicial interpretation given by the Strasbourg Court (non-compliance with which results in a violation of the law), and must therefore, as far as possible, be commensurate, in substantive and not merely formal terms, with the amounts paid in similar cases by the European Court, it being possible to adduce exceptional circumstances that suggest themselves in the particular case, on condition that they are reasoned, not excessive and not unreasonable (Cass. A.P. 26 January 2004 no. 1340). ...
- a discrepancy in the method of calculation [between the Court’s case-law and section 2 of the Pinto Act] shall not affect the general vocation of Law no. 89 of 2001 to meet the objective of awarding proper compensation for a breach of the right to a hearing within a reasonable time (vocation acknowledged by the European Court in, inter alia, a decision of 27 March 2003 in Scordino v. Italy (application no. 36813/97)), and accordingly shall not allow any doubt as to the compatibility of that domestic standard with the international commitments entered into by the Italian Republic when ratifying the European Convention and the formal recognition, also at constitutional level, of the principle stated in Article 6 § 1 of that Convention...”
31. In the report CM/Inf/DH(2004)23, revised on 24 September 2004, the Ministers’ deputies made the following indications regarding an assessment of the Pinto remedy:
“...11. As regards the domestic remedy introduced in 2001 by the “Pinto Act”, a number of shortcomings remain, particularly in connection with the effectiveness of the remedy and its application in conformity with the Convention: in particular, the law does not provide yet for the acceleration of pending proceedings. ...
109. In the framework of its examination of the 1st annual report, the Committee of Ministers expressed concern at the fact that this legislation did not foresee the speeding up of the proceedings and that its application posed a risk of aggravating the backlog of the appeal courts. ...
112. It should be pointed out that in the framework of its examination of the 2nd annual report, the Committee of Ministers had noted with concern that the Convention had no direct effect and had consequently invited the Italian authorities to intensify their efforts at national level as well as their contacts with the different bodies of the Council of Europe competent in this field. ...”
32. In this interim resolution the Ministers’ deputies indicated as follows:
“The Committee of Ministers
Noting ...
“...the setting-up of a domestic remedy providing compensation in cases of excessive length of proceedings, adopted in 2001 (the "Pinto” law), as well as the recent development of the case-law of the Court of cassation, increasing the direct effect of the case-law of the European Court in the Italian legal system, while noting that this remedy still does not enable for acceleration of proceedings so as to grant effective redress to all victims;
Stressing that the setting-up of domestic remedies does not dispense states from their general obligation to solve the structural problems underlying violations;
Finding that despite the efforts undertaken, numerous elements still indicate that the solution to the problem will not be found in the near future (as evidenced in particular by the statistical data, the new cases before both domestic courts and the European Court, the information contained in the annual reports submitted by the government to the Committee and in the reports of the Prosecutor General at the Court of cassation); ...
Stressing the importance the Convention attaches to the right to fair administration of justice in a democratic society and recalling that the problem of the excessive length of judicial proceedings, by reason of its persistence and extent, constitutes a real danger for the respect of the rule of law in Italy; ...
URGES the Italian authorities to enhance their political commitment and make it their effective priority to meet Italy’s obligation under the Convention and the Court’s judgments, to secure the right to a fair trial within a reasonable time to all persons under Italy’s jurisdiction. ...”
33. The European Commission for the efficiency of justice was set up at the Council of Europe by Resolution Res(2002)12 with the aim of (a) improving the efficiency and the functioning of the justice of member States with a view to ensuring that everyone within their jurisdiction can enforce their legal rights effectively, thereby generating increased confidence of the citizens in the justice system and (b) enabling a better implementation of the international legal instruments of the Council of Europe concerning efficiency and fairness of justice.
34. In its framework programme (CEPEJ (2004) 19 Rev 2 § (7) the CEPEJ noted that “the mechanisms which are limited to compensation are too weak and do not adequately incite the States to modify their operational process, and provide compensation only a posteriori in the event of a proven violation instead of trying to find a solution for the problem of delays.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58088
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF SOLDANI v. ITALY
IMPORTANCE: 4
CONCLUSION: Art. 6 inapplicable
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 7. Mrs Maria Teresa Soldani, an assistant psychologist at the coordination bureau of the National Centre for the Prevention of Accidents in Massa Carrara, lives in Marina di Carrara.
8. On 11 February 1983 she applied to the Lazio Regional Administrative Court (“the RAC”) for judicial review of five decisions in which the Treasury had refused to appoint her to a post in a higher category than the one she held, although she had been in second or third place on the reserve lists published each time such posts had fallen vacant.
9. In a judgment of 17 June 1987, the text of which was deposited with the registry on 16 November 1987, the RAC allowed her application.
10. On 7 March 1988 the Treasury appealed to the Consiglio di Stato. In an interlocutory judgment of 26 June 1990 the Consiglio di Stato ordered the Treasury to file certain documents. On 6 October 1990 the applicant filed at the registry of the Consiglio di Stato an application for the case to be set down for an urgent hearing. In a judgment of 30 March 1993, the text of which was deposited with the registry on 12 May 1993, the Consiglio di Stato dismissed the appeal as being ill-founded.
11. On 2 September 1994 the Treasury assigned the applicant to assistant coordinator grade with effect from 28 December 1979.


ITEMID: 001-82267
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: MOHAMMADI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Anvar Mohammadi, is an Iranian national who was born in 1947. He currently lives in Canada. He was represented before the Court by Mr H. Saeedi, who resides in the Netherlands. The Government did not appoint an agent to represent them.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 October 2000, the applicant, followed by his wife and children on 23 October 2000, entered Turkey illegally. According to the information provided by him, he was a political activist against the regime in Iran and a member of the Democratic Kurdistan Party. In this connection, he submitted an Iranian Court order of 2001, concerning the confiscation of his property on account of his collaboration with the said party and for his illegal departure from Iran.
On 13 November 2000, the applicant filed an asylum request with the Turkish authorities and the United Nations High Commissioner for Refugees (UNCHR).
On 30 January 2003 his asylum request was dismissed by the UNCHR.
On 4 May 2005 the Ministry of the Interior rejected his asylum application.
On an unspecified date, he again applied to the UNCHR. His request was dismissed on 13 September 2005 and his file was closed.
The applicant continued to send letters to the UNCHR and consequently his case was reopened.
On 20 January 2006 he was arrested at Ankara Airport while trying to leave the country.
On 22 January 2006 he lodged his application with the Court and requested not to be deported to Iran.
On 26 January 2006 he was given a residence permit in Turkey which was valid until August 2006, in order to facilitate his participation in the domestic proceedings in Turkey.
On 1 March 2006 he was recognised as a refugee by the UNCHR.
On 29 May 2006 he was arrested by Turkish police in Van.
On the same day, his representative filed an urgent action with the Court. He stated that the applicant had been recognised as a refugee by the UNCHR and had a residence permit in Turkey until 10 August 2006. He requested the Court to stop the applicant’s deportation.
On 31 May 2006, the Acting President of the Chamber to which the case has been allocated decided to indicate to the Government, under Rule 39 of the Rules of Court, that the applicant should not be deported to Iran until further notice. On the same day, the Acting President also decided to apply Rule 40 of the Rules of Court (urgent notification of an application) to the present case. Accordingly, the Government were requested to submit factual information by 12 July 2006.


ITEMID: 001-76070
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF DZIERZANOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1966 and lives in Białystok, Poland.
5. On 22 December 1992 the applicant was involved in a car accident as a result of which one person died. Subsequently, the prosecution service opened an investigation in the case.
6. On 31 March 1993 the prosecution service discontinued the investigation. Subsequently, an auxiliary prosecutor appealed and the investigation was resumed.
7. On 25 June 1993 the applicant was charged with manslaughter. It appears that the applicant had by then left the country and was not notified of the decision.
8. On 30 June 1993 the applicant was indicted before the Białystok District Court.
9. On 11 February 1994 the trial court decided to stay the proceedings on the grounds that the applicant’s address could not be established as he had left the country.
10. On 29 March 1996 the District Court issued an arrest warrant against the applicant. On 2 July 1996 the applicant was arrested by the police while crossing the Polish border.
11. On 8 August 1996 the trial court resumed the proceedings and held a hearing. Subsequently, the District Court held hearings on 19 September and 10 December 1996 and 11 February and 25 June 1997.
12. In 1998 the court held hearings on 18 February, 19 April, 1 September and 8 October.
13. On 12 October 1998 the Białystok District Court gave judgment. The trial court acquitted the applicant.
14. On 16 February 1999 the Białystok Regional Court (Sąd Okręgowy) examined the appeal lodged by the auxiliary prosecutor. The appellate court quashed the judgment and remitted the case.
15. On 26 November 1999 the Białystok District Court held a hearing. In 2000 the trial court held one hearing on 28 January and ordered that an expert opinion be prepared.
16. On 10 May 2001 the next hearing was held. At the hearing on 8 June 2001 the applicant pleaded guilty. On the same day the Białystok District Court found the applicant guilty and sentenced him to a suspended prison sentence. The judgment is final.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-106247
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: AMEH AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 1. The applicants, Ms Nkechi Clareth Ameh (“the first applicant”) and her three children, are Nigerian nationals who were born in 1976, 2003, 2005 and 2007 respectively and live in Sunderland.
2.
3. The first applicant entered the United Kingdom on 17 December 2005 on a valid visit visa, accompanied by her two eldest children. The first applicant remained in the United Kingdom following the expiry of her visa and did not come to the attention of the authorities until she claimed asylum in July 2009.
4. The basis of her claim was that she had married in 2002 and, when her eldest daughter was born in 2003, her husband’s family had raised the idea of having both her and the first applicant herself circumcised. Both the applicant and her husband had been averse to the idea. However, the applicant and her husband had separated when she was pregnant with her son, who was born in 2005, and their marriage ended definitively in 2009. Her third child, a girl born in the United Kingdom in 2007, was the result of a brief reconciliation with her husband. The applicant claimed to fear that, without the support of her husband, she would not be able to withstand his family’s pressure to have her two daughters, and herself, circumcised.
5. Her asylum claim was refused on 15 April 2010. The Secretary of State noted that the applicant was no longer in contact with her husband or his family. The applicant had remained in Nigeria following her first daughter’s birth, and even after separating from her husband, indicating that she did not genuinely fear her in-laws. Her last noted address had been in Lagos, which was not where her in-laws lived. It was therefore believed that she could return to that city or relocate elsewhere in Nigeria and thus avoid her ex-husband’s family, who would not be aware of her return, given their lack of contact. Furthermore, the background evidence indicated that the Nigerian authorities were taking steps to combat female genital mutilation (“FGM”) and had successfully outlawed the practice in several states. There were a number of women’s non-governmental organisations that could offer support to the first applicant. It was therefore considered that there was a sufficiency of protection available to her. She also had family, including two brothers, living in Nigeria and would therefore have a support network. Her claim was certified as clearly unfounded, meaning that she could not appeal against the refusal of asylum from within the United Kingdom.
6. The first applicant was advised by her legal representatives that any application for judicial review of the decision to certify her claim had a very poor chance of succeeding, as her claim was weak. Since her case was publicly funded, her representatives could not bring such an application on her behalf given that there was no reasonable prospect of success. As a result of the withdrawal of publicly funded legal assistance, the first applicant did not seek judicial review of the certification of her asylum claim as clearly unfounded.
7. Directions were set for the applicants’ removal on 4 February 2011. On 20 January 2011, the applicants sought an interim measure from this Court in order to prevent their removal. On 1 February 2011, the Acting President of the Fourth Section, to which the case had been allocated, indicated to the Government of the United Kingdom that the applicants should not be removed until further notice. Upon further consideration of the case, the Section on 15 March 2011 lifted the interim measure previously indicated. The applicants notified the Court on 25 March 2011 that, notwithstanding the lifting of the interim measure under Rule 39, they wished to continue with their complaints under the Convention.
8. Section 94(2) of the Nationality, Immigration and Asylum Act 2002, as amended by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, provides that, where a person has made an asylum or human rights claim and the Secretary of State has certified that that claim is clearly unfounded, the person may not bring an appeal whilst still in the United Kingdom. A claim will be certified as clearly unfounded only where, taking the claim at its highest, on any legitimate view it could not succeed.
9. The only means by which a person can challenge the certification of their claim under section 94(2) is by judicial review. The test that will be applied by the courts is whether, based on the material before the Secretary of State, there is a realistic prospect that an Immigration Judge, applying the rule of anxious scrutiny, would uphold an appeal (see R (on the application of YH) v. Secretary of State for the Home Department [2010] EWCA Civ 116, paragraphs 20-21).


ITEMID: 001-76565
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: KOLENOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Ms Liliya Vladimirovna Kolenova, is a Russian national who was born in 1975 and lives in Kimovsk, Tula Region. She was represented before the Court by Mr R. Ganiyev, a lawyer practising in Kimovsk. The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 May 1998 the applicant lodged an action before the Kimovsk Town Court against a private insurance company for payment of an index-linked insurance sum and compensation for non-pecuniary damage.
Of the fifteen hearings listed between 21 August 1998 and 13 July 2001, two hearings were adjourned because the applicant did not attend, three hearings were postponed because both parties defaulted, and three hearings were adjourned because the defendant failed to appear.
From 21 July to 11 September 2000 the proceedings were adjourned because the judge was involved in other proceedings.
On 29 November 2000 the Kimovsk Town Court asked the applicant to clarify her claims.
On 16 February 2001 the applicant submitted the amended claims.
On 13 July 2001 the Kimovsk Town Court dismissed the applicant’s action.
On 20 December 2001 the Tula Regional Court upheld the judgment on appeal.


ITEMID: 001-4837
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 1998
DOCNAME: TRUJILLO LOZANO v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm
TEXT: The applicant is a Colombian citizen, born in 1962, and currently serving a prison sentence in Rotterdam, the Netherlands. Before the Court he is represented by Mr Th.A. de Roos, a lawyer practising in Amsterdam.
On 13 August 1992 the applicant was taken into police custody (inverzekeringstelling) on suspicion of incitement to murder, followed by pre-trial detention (voorlopige hechtenis) on 14 August 1992. The applicant denied any involvement in the offence of which he was suspected. On 17 November 1992 the public prosecutor ordered the applicant’s release as the maximum period of time during which pre-trial detention was allowed was nearing its end. However, in his decision of 17 November 1992 the prosecutor added that the investigation would continue.
The applicant was again taken into pre-trial detention on suspicion of the same offence on 3 May 1994 by the Investigating Judge (Rechter-Commissaris) of The Hague. It appeared that on 26 April 1994 a witness, X., had made a statement to the police to the effect that the applicant had told him in August 1992 to shoot a person. The Investigating Judge considered that this constituted a new serious grievance against the applicant, justifying a remand order (bevel tot bewaring).
A pro forma hearing before the Regional Court (Arrondissementsrechtbank) of The Hague was set for 4 August 1994 on which date the hearing was adjourned until 27 October 1994. The Regional Court convicted the applicant on 10 November 1994 of being an accessory to the offence of incitement to murder and sentenced him to fifteen years’ imprisonment with deduction of the time spent in pre-trial detention.
Both the applicant and the public prosecutor filed an appeal with the Court of Appeal (Gerechtshof) of The Hague. Before this Court hearings took place on 10 April and 12 June 1995. On this last occasion counsel for the applicant argued that the reasonable time as referred to in Article 6 § 1 of the Convention had been exceeded in view of the fact that it had taken more than two years after the applicant had been taken into police custody before the case had come to trial. For this reason the prosecution should either be declared inadmissible or the sentence to be imposed on the applicant should be mitigated.
On 26 June 1995 the Court of Appeal quashed the judgment of the Regional Court for technical reasons, convicted the applicant of the same offence and sentenced him to eighteen years’ imprisonment with deduction of the time spent in pre-trial detention. The Court of Appeal based this conviction to a decisive extent on the statement made by the witness X. to an Investigating Judge on 21 June 1994. In respect of the period of time which had elapsed before the case came to trial, the Court of Appeal held that the decision to order the applicant’s second period of pre-trial detention had been justified in view of the new and serious grievances against him which had only come to light at a later stage and which had not yet been examined. A reasonable time had therefore not been exceeded.
The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad), again raising the argument that a reasonable time had been exceeded. The applicant argued that the expeditious handling of the case subsequent to the witness’s statement on 26 April 1994 did not take away from the fact that prior to that time the prosecuting authorities had failed to carry out any kind of activity.
On 7 May 1996 the Supreme Court rejected the applicant’s appeal in cassation pursuant to Article 101a of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie) as not prompting a determination of legal issues in the interest of legal unity and legal development.


ITEMID: 001-22768
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: SNOOKS and DOWSE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The first applicant is a British national, born in 1971 and living in Ashford, Kent. He is represented before the Court by Bailhache Labesse, lawyers practising in St Helier, Jersey. The second applicant is a British national living in Jersey. He is represented before the Court by Bedell Cristin, lawyers practising in St Helier, Jersey. The respondent Government were represented by Mr D. Walton of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
At about 15.30 hours on 12 September 1996 the first applicant collected two bags containing approximately 11.8 kg of cannabis resin from an accomplice in a car park in Jersey. He transferred those bags to a car and was arrested at about 15.36 hours while attempting to make a telephone call from a kiosk. He said that he thought the bags contained money as he had previously been involved in similar exchanges of money with the accomplice as part of a tax evasion scheme. He contended that he did not have an opportunity to examine the contents of the bags before his arrest. He maintained that he had been surprised to have been given the bags by the accomplice on the occasion concerned as he had on previous occasions normally given bags to that person. He said that the telephone call was an attempt to clarify the situation with another accomplice.
The first applicant’s trial was in the Royal Court of Jersey before the inferior number, which consisted of a judge of law (the “deputy bailiff”) and two judges of fact (the “jurats”). His defence was that he did not know that the bags contained drugs and had no reason to believe that this was the case. At the end of a three day trial the deputy bailiff delivered a summing up in open court before retiring with the jurats. The first applicant was convicted on 21 May 1997 of offences of being knowingly concerned in the fraudulent evasion of the prohibition on importation of cannabis resin and of being in possession of a controlled drug. No reasons were given for the verdict. He was sentenced to five years, six months’ imprisonment.
In a judgment delivered on 26 September 1997 the Court of Appeal allowed his appeal against conviction for being knowingly concerned in the fraudulent evasion of the prohibition on importation of cannabis on the ground that the deputy bailiff had failed to direct the jurats fully on the ingredients of that offence. It dismissed his appeal against the conviction of being in possession of a controlled drug with intent to supply and substituted a sentence of five years’ imprisonment.
The principal grounds of appeal related to alleged deficiencies in the summing up by the deputy bailiff. One allegation was that the summing up had contained a number of factual deficiencies because it had referred to the first applicant’s defence counsel as having implied that the purpose of the first applicant’s going to the telephone kiosk was to telephone an accomplice to ask him what was in the bags and because it stated that part of his evidence was that a woman had rushed in and out of the kiosk “within seconds of his being there”. The Court of Appeal concluded that:
“In our judgment these minor factual errors are not significant and could not possibly have affected the verdict of the jurats.”
Another allegation was that the summing up had not fairly put the defence case. For example, it indicated that it would have been “very easy” for the first applicant to inspect the bags before his arrest without referring to the defence counsel’s contentions to the contrary. In this regard the court concluded:
“We have examined carefully the points made by [the first applicant’s counsel] in relation to this submission but we find no force in it. Some of the points which were alleged to be unfavourable to the appellant on analysis proved to be neutral or even favourable to him... .While it is true that the jurats were not reminded of every piece of evidence which was favourable to the defence, the deputy bailiff was under no duty to do so. What we do find is that the deputy bailiff was at pains to remind the jurats throughout the summing up that the appellant’s defence was that he did not know that the bags contained cannabis resin and that it was his state of mind at the relevant time which was important. The deputy bailiff also reminded the jurats on more than one occasion that the appellant’s version of events was supported by other witnesses. We accordingly reject this criticism of the summing up”.
In the course of the proceedings before the Court of Appeal, argument was also heard on the question whether, having delivered a summing up in open court, the presiding judge (in this case the deputy bailiff) should retire with the jurats, who are initially the sole judges of fact (see below). The court made no observations on this point other than to suggest that
“...this is an issue which merits careful consideration by the Royal Court”.
The Court of Appeal concluded that:
“There was ample evidence upon which the jurats could make a finding of guilt. The appeal against conviction for possession of the cannabis resin with intent to supply was accordingly dismissed.”
The first applicant petitioned the Judicial Committee of the Privy Council for special leave to appeal against his conviction. On 30 March 1998, after an oral hearing, this was refused.
The second applicant was arrested on the evening of 23 February 1996 following a stop and search by police on a street in Jersey. He was found to be in possession of two packages of diamorphine (heroin) valued at GBP 113,040. He had travelled to London and back earlier that day. He said at his trial that he had gone there to visit an exhibition at the Imperial War Museum and maintained that he had only found the packages upon his return to his flat that evening. He said that he initially thought that the packages contained diamonds, as he had previously carried them for a man called Dr Ambrose between Jersey and London, where he had handed them over to a man called Jan. He had met Jan at Victoria railway station in London that day but had explained to him that, at that time, he had no diamonds. He maintained that, at the time of his arrest, he was on his way with a friend to a public house to try to find Dr Ambrose because he did not know what was in the packages and had not examined their contents.
The second applicant’s trial commenced before the inferior number of the Royal Court of Jersey on 16 December 1996. At the conclusion of the closing speeches of the defence and prosecution counsel, the deputy bailiff and two jurats retired. The deputy bailiff’s summing up was delivered in private. On 20 January 1997 the second applicant was convicted of being knowingly concerned in the fraudulent evasion of the prohibition on importation of a controlled drug and of being in possession of a controlled drug with intent to supply it to another. No reasons were given for the verdict. He was sentenced to thirteen years, six months’ imprisonment.
The second applicant appealed on a number of grounds, including the fact that the deputy bailiff summed up in private. However, shortly before the appeal hearing, in a letter dated 16 May 1997, he withdrew four of the five grounds of appeal, and elected to proceed only on the question whether there had been sufficient evidence that the applicant had imported the heroin to form the basis of a conviction on the first charge.
A few days before the appeal hearing the Solicitor General disclosed to the second applicant’s representatives the existence of witness statements given by seven English police officers who had observed his movements in the United Kingdom on the day in question. Those statements confirmed, inter alia, that the second applicant had met Jan at Victoria station that day and had gone on to the Imperial War Museum.
On 11 July 1997 the Court of Appeal allowed the appeal against the conviction of being knowingly concerned in the fraudulent evasion of the prohibition on importation of cannabis on the ground that the prosecution should have disclosed this evidence before, or at least during, the trial and that the non-disclosure had led to a substantial miscarriage of justice in relation to that conviction. It dismissed the appeal against the conviction of being in possession of a controlled drug with intent to supply on the ground that the non-disclosure did not affect that conviction. It stated that the new evidence:
“...could not go to substantiate either directly or indirectly [the second applicant’s] claim to have an entirely separate relationship with Dr Ambrose as a diamond courier. Nor could it explain his behaviour in relation to the two packages on the evening of that day after they had been left in his flat according to [him] by some unidentified person and without any explanation”.
The Court of Appeal substituted a sentence of twelve years’ imprisonment.
The second applicant petitioned the Judicial Committee of the Privy Council for special leave to appeal against his conviction, reverting, inter alia, to the question whether the summing up in private had been fair. There was a hearing before the Privy Council on 29 October 1998, which was attended by the applicant’s counsel and a representative of the Solicitor General. An account of this hearing prepared by the Solicitor General’s representative states:
“... Their Lordships after hearing counsel on both sides and a short deliberation informed the parties that the Petition would be dismissed.
I should point out that Lord Steyn [the presiding judge] remarked with great surprise at there being no summing-up by the Bailiff in open court, but went on to say that since the matter had not been raised before the Court of Appeal, he did not believe that it would be appropriate for the Privy Council to intervene in this regard at this stage without having any views from the Court of Appeal.
I rather got the impression from Advocate Young for the Petitioner, who attended at the hearing, that someone may well be looking at raising this subject again in an appropriate case in the Court of Appeal, so that the matter may be raised yet again before the Privy Council. ...”
The Convention was first extended to the Bailiwick of Jersey, under Article 63 (now Article 56) of the Convention, by a declaration registered at the Secretariat General on 23 October 1953. Protocol No. 11 was extended to Jersey with effect from 1 November 1998.
There is one bailiff and one deputy bailiff in Jersey. They are appointed by the Queen and can only be removed from office by her. The deputy bailiff is able to perform all the bailiff’s functions, on the authority of the bailiff.
The Royal Court, comprised of bailiff and jurats, has existed in Jersey since the middle of the 13th century. Jurats are charged with the execution of a range of judicial tasks. They are not required to decide legal issues, but instead represent the lay element in the process of judicial decision-making. They also form part of the Liquor Licensing Assembly and the Gambling Licensing Authority. They have powers, inter alia, to authorise the removal of arrested persons to prison in certain circumstances, to supervise dealings in the property of persons under certain forms of legal disability and to supervise the conduct of public elections.
Jurats are not chosen at random from the electoral roll, as in the case of ordinary jurors both in Jersey and the United Kingdom. Rather, they are elected by a special electoral college whose members include the bailiff, the jurats, advocates and solicitors of the Royal Court and members of Jersey’s legislature, the States Assembly. Jurats do not necessarily have a legal qualification, but are usually individuals with a known history of sound judgment and integrity, which has been consistently demonstrated throughout a lengthy professional, business or civic life.
The qualifications required for election to the office of jurat are governed by Article 3 of the Royal Court (Jersey) Law, 1948 as amended (Annex 3A, pp. 164-165) (“the 1948 Law”), which currently provides as follows:
“QUALIFICATIONS FOR THE OFFICE OF JURAT
1) A person shall, unless disqualified under the provisions of this Law or any other enactment, be qualified to be appointed Jurat if he has attained the age of forty years and is a British subject and -
(a) was born in the Island; or
(b) has during the five years preceding the day of appointment been ordinarily resident in the Island.
2) For the avoidance of doubt, it is hereby declared that -
(a) a person, by reason of the fact that he is not a member of the Established Church, shall not be disqualified for being appointed Jurat;
(b) a woman, by reason of her sex or marriage, shall not be disqualified for being appointed Jurat;”
Disqualifications for the office of jurat are governed by Article 4 of the 1948 Law. Grounds for disqualification include the holding of any paid office or other place of profit under the Crown or the States or any other administration of the States, or any parochial authority: Article 4 (a)(b).
Retirement of jurats is governed by Article 10 (1) of the 1948 Law as amended, which provides as follows:
“RETIREMENT OF JURATS
A Jurat shall cease to hold office on the day upon which he attains the age of seventy-two years:
Provided that a Jurat who, for a continuous period of twelve months fails, without good reason, to discharge the duties of his office, or who, in the opinion of the Court, is permanently unable, through physical or mental incapacity, or for any other reason, efficiently to carry out the duties of his office, may be called upon by the Court to resign and, unless he, within a reasonable time, presents to the Bailiff, for transmission to Her Majesty in Council, a petition praying that Her Majesty may be pleased to permit him to resign his office, he shall be removable by Order of Her Majesty in Council on the petition of the Superior Number of the Royal Court.”
Other than trial in the Magistrate’s Court, there are two forms of criminal trial in Jersey, namely an “assize trial” before a judge and jury, and “trial by the inferior number” before a bailiff (or deputy bailiff) and two jurats. In the case of serious statutory offences, including those of which both applicants were accused, trial is always before the Royal Court by the inferior number.
The roles of the bailiff and jurats at trial by inferior number are set out in Article 13 of the 1948 Law, which provides:
“POWERS OF THE BAILIFF AND JURATS
1) In all causes and matters, civil, criminal and mixed, the Bailiff shall be the sole judge of law and shall award costs, if any.
2) In all causes and matters, civil, criminal and mixed, other than criminal causes tried before the Criminal Assizes, in which causes the jury shall... find the verdict, the Jurats... shall be the sole Judges of fact and shall assess the damages, if any.
3) In all criminal and mixed cases, the Jurats shall determine the sentence, fine or other sanction to be pronounced or imposed.
4) In all causes and matters, civil, criminal and mixed, the Bailiff shall have a casting vote whenever the Jurats -
(a) being two in number, are divided in opinion as to the facts or as to the damages to be awarded or as to the sentence, fine or other sanction to be pronounced or imposed; or
(b) (...)”
Since the entry into force of the 1948 Law, the bailiff has - as a consequence of his own role as the sole judge of the law - been obliged to give the jurats guidance or directions on relevant matters of law. These directions are generally known as a summing up.
In giving his directions on the law, it is common for the bailiff or deputy bailiff to advert to the issues of fact which are crucial to the legal issues upon which the directions are given. As a matter of practice, it is not usual for the bailiff to give a full and formal summing up of the facts, in the manner common in jury trials. The summing up used normally (though not invariably) to be given in private, after the trial itself - including the closing speeches of prosecuting and defence counsel - had taken place in public. However in the first applicant’s case it was given in public. As a consequence of the comments of the Court of Appeal in that case, it has been given in public in subsequent cases.
After the trial, the bailiff (or deputy bailiff) and jurats retire together. This practice was referred to by the Court of Appeal in the first applicant’s case. The President stated in his judgment:
“... we heard some argument as to whether, having delivered a summing up in open court, the presiding judge should any longer retire with the Jurats [since initially they alone are the judges of fact]. We make no observations on this point other than to suggest that this is an issue which merits careful consideration by the Royal Court.”
The following year, in the case of Attorney General v. Young and Williams (1998 1 JLR 111), the Royal Court held that the presiding judge should retire with the jurats when they consider their verdict, since by virtue of Article 13 (4) of the 1948 Law, he was given a casting vote whenever the jurats were divided on an issue of fact. However, the Royal Court also held that it was the presiding judge’s responsibility to ensure that when he retired with the jurats, he limited his contribution to their discussion to matters of law, so that the decision on the facts was theirs alone, as stipulated by Article 13 (2) of the 1948 Law.


ITEMID: 001-76135
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BOZIC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant, Mrs Dragica Božić, is a Croatian national, who was born in 1943 and currently lives in Sotin, Croatia.
5. On 27 September 1991 the Croatian Pension Fund, Sisak Office (Republički fond mirovinskog i invalidskog osiguranja, Područna služba u Sisku – the Sisak Office) issued a decision granting the applicant the right to a widow’s (family) pension as of 6 August 1991. However, no payments were made until 1 August 1997.
6. On 18 September 1997 the applicant instituted administrative proceedings in order to recover the pension instalments due.
7. On 14 June 1999 the Sisak Office dismissed her request. It found that the payment of her pension was stopped between 6 August 1991 and 31 July 1997 since during that period the applicant had resided in the occupied areas of Croatia and her address had been unknown. On 9 July 1999 the applicant appealed against that decision.
8. On 19 June 2000 the Croatian Pension Fund, Central Office (Hrvatski zavod za mirovinsko osiguranje, Središnja služba – the Central Office) quashed the first-instance decision for factual errors and remitted the case.
9. In the resumed proceedings, the Sisak Office dismissed the applicant’s request on 9 October 2000. The applicant appealed.
10. On 9 April 2001 the Central Office again quashed the first-instance decision and remitted the case.
11. On 22 August 2001 the Sisak Office for the third time dismissed the applicant’s request. The applicant appealed.
12. On 15 November 2001 the Central Office for the third time quashed the first-instance decision for factual shortcomings and remitted the case. It instructed the Sisak Office to enquire whether the applicant had received a pension from the authorities that had exercised control over the occupied territory.
13. In the subsequent proceedings, on 16 May 2002 the applicant lodged an appeal for failure to respond under the Administrative Procedure Act (see paragraph 21 below) since the Sisak Office did not render a decision within the statutory time-limit of two months. Given that the Central Office also failed to decide on this appeal within the statutory time-limit of two months, on 17 December 2002 the applicant brought an action for failure to respond (see paragraph 22 below) in the Administrative Court (Upravni sud Republike Hrvatske). The applicant subsequently withdrew this action since in January 2003 the first-instance decision had been rendered.
14. On 29 January 2003 the Sisak Office accepted the applicant’s request in part. It awarded her the pension instalments as of 1 October 1994 and dismissed her request for the instalments due prior to that date. The applicant appealed.
15. On 20 May 2003 the Central Office dismissed the applicant’s appeal.
16. On 1 July 2003 the applicant brought an administrative action in the Administrative Court challenging that decision.
17. On 27 January 2005 the Administrative Court gave judgment dismissing the applicant’s claim.
18. On 7 March 2005 the applicant lodged a constitutional complaint with the Constitutional Court against that judgment. The proceedings are currently pending before that court.
19. Article 29 § 1 of the Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as follows:
“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”
20. The relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske) as amended on 15 March 2002, Official Gazette nos. 29/02 of 22 March 2002 and. 49/02 (consolidated text) – “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual’s rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
21. The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette no. 53/1991 of 8 October 1991) provide as follows:
Section 218(1) provides that in simple matters, where there is no need to undertake separate examination proceedings, an administrative authority shall give a decision and serve it on a party within one month following the submission of an application. In all other, more complex cases, the authority shall give a decision and serve it on a party within two months.
Section 218(2) provides that a party whose application has not been decided and served within the time-limits set out in paragraph (1) may lodge an appeal (appeal for failure to respond, žalba zbog šutnje administracije) as if his or her application had been dismissed.
Section 247(1) provides that the decision on the appeal shall be given and served on a party as soon as possible but at the latest within two months following the submission of the appeal.
Section 246(1) provides that the second-instance administrative authority deciding on the appeal for failure to respond shall request the first-instance authority to give reasons for its omission. If it finds that the failure to respond was attributable to the party or the reasons for such omission were otherwise justified, the second-instance authority shall order the first-instance authority to give a decision within one month. If it finds that the omission was not justified, it shall request the case-file.
Section 246(2) provides that if the case-file contains sufficient information, the second-instance administrative authority shall decide the case. Otherwise, it shall first hear the case and take evidence, and then give a decision. Exceptionally, if it considers that such a procedure would save time and costs, it shall order the first-instance authority to hear the case and take evidence within a specified time-limit, whereupon it shall decide the case itself. Such a decision shall be final.
22. The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/92 and 77/92) provide as follows:
Section 26(1) provides that if the appellate authority fails to give a decision on a party’s appeal against the first-instance decision within sixty days, and fails to do so upon a repeated request within a further period of seven days, the party may bring an action in the Administrative Court (action for failure to respond, tužba zbog šutnje administracije), as if his or her appeal had been dismissed.
Section 26(2) provides that when the first-instance administrative authority fails to give a decision against which no appeal lies, the party may directly bring an action in the Administrative Court.
Section 26(3) provides that, in matters where the right of appeal exists, if a first-instance administrative authority fails to give a decision on a party’s application within sixty days, the party may submit his or her application to the appellate administrative authority. Against the latter authority’s decision the party may bring an action in the Administrative Court, and if the authority fails to give a decision, the party may bring an administrative action under the conditions set out in paragraph 1.
Section 42(5) provides that when the Administrative Court, following the action for failure to respond, finds for the plaintiff, it shall either instruct the respondent administrative authority how to decide the case on points of law, or shall itself rule on the application (acting as a court of full jurisdiction under paragraph 2 of section 64).
Section 64(1) provides that, in the execution of the judgment rendered under section 42(5), the administrative authority shall issue its decision immediately but at the latest within 30 days. Otherwise, a party may by a special submission request it to do so. If the authority does not issue a decision within seven days following that request, a party may apply to the Administrative Court.
Section 64(2) provides that if such an application is made, the Administrative Court shall first ask the administrative authority to give reasons for its omission. The authority shall reply immediately but at the latest within seven days. If the authority fails to do so, or if the reasons given do not justify the failure to decide, the Administrative Court shall give a decision entirely substituting for the decision of the administrative authority.
23. In case no. U-IIIA/635/2004 of 25 November 2004, the Constitutional Court was seized under Section 63 of the Constitutional Court Act to examine the length of administrative proceedings instituted in July 1996 when the complainant had brought an action in the Administrative Court for the Ministry of Defence’s failure to give a decision in his case. In October 1998 the Administrative Court ordered the Ministry to give a decision within 30 days. The Ministry gave a negative decision in July 1999. The complainant then brought a second administrative action, challenging that decision. In September 2000 the Administrative Court quashed the impugned decision and remitted the case. The Ministry again gave a negative decision and served it on the complainant in January 2004. On 18 February 2004 the complainant had brought a third administrative action, which was dismissed by the Administrative Court in June 2004. Meanwhile, on 25 February 2004 he lodged his constitutional complaint arguing that the Constitutional Court should, like the European Court of Human Rights, take into consideration the overall length of administrative proceedings when examining whether or not they exceeded a reasonable time.
Following its previous practice (decisions no. U-III-2467/2001 of 27 February 2002, and U-IIIA/3638/2003 of 18 February 2004), the Constitutional Court held that only the inactivity of the judicial authorities was relevant for a breach of Article 29 § 1 of the Constitution. In its view it was not possible for proceedings before the administrative authorities to last unreasonably long because the statutes regulating those proceedings contained the presumption that the application had been dismissed if the administrative authorities failed to give a decision within the statutory time-limits (see paragraphs 21 and 22 above). The Constitutional Court therefore examined only the length of the proceedings in their part between the introduction of the complainant’s third administrative action and lodging of the constitutional complaint. It dismissed the constitutional complaint finding that the proceedings had lasted only seven days.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87570
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF PRZEPALKOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Mihai Poalelungi
TEXT: 6. The applicant was born in 1923 and lives in Warsaw.
7. He is the owner of a plot of land in Legionowo. Apparently, since 1990 construction works without the required permit have been carried out by the applicant’s neighbour, B.G., on his plot of land which adjoins the applicant’s property.
8. On 9 December 1993 B.G. requested the Mayor of Legionowo (Urząd Miejski w Legionowie) to grant him a building permit for a garage to be used for repairing lorries.
9. The Mayor of Legionowo found that the garage adjoining the applicant’s property had already been constructed without the required building permit and on 3 February 1994 ordered its demolition (przymusowa rozbiórka).
10. On 14 February 1994 B.G. lodged an appeal, submitting that he had already been granted a building permit which had subsequently been quashed.
11. On 29 June 1994 the Warsaw Regional Office (Urząd Wojewódzki) upheld the challenged decision.
12. On 18 July 1994 B.G. lodged an appeal with the Supreme Administrative Court (Naczelny Sąd Administracyjny).
13. On 22 September 1994 the Supreme Administrative Court ordered that enforcement of the Warsaw Regional Office’s decision be stayed pending the examination of B.G.’s appeal.
14. On 8 February 1995 the applicant, as a party to the administrative proceedings, requested the Supreme Administrative Court to dismiss the appeal and to uphold the challenged decision.
15. On 22 January 1996 the Supreme Administrative Court other conditions of the surroundings.
16. On 10 February 1999 the Mayor of Legionowo (Prezydent Miasta Legionowa) imposed on B.G. an obligation to acquire a building permit by 30 June 1999.
17. On 25 February 1999 the applicant appealed against that decision and requested the Mazowsze Governor (Wojewoda Mazowiecki) to issue a demolition order.
18. On 23 August 1999 the Mazowsze Governor quashed the contested decision and remitted the case.
19. On 14 September 1999, following amendments to the provisions governing the powers of the administrative authorities, the President of Legionowo transferred the case to the Legionowo Local Inspector of Construction Supervision (Powiatowy Inspektor Nadzoru Budowlanego).
20. On 26 May 2000 the Legionowo Local Inspector of Construction Supervision gave a decision ordering demolition of the garage, finding that it had been constructed illegally and contrary to the local zoning plan (plan zagospodarowania przestrzennego).
21. On 12 June 2000 B.G. appealed against that decision.
22. On 20 January 2001 the applicant complained to the Chief Inspector of Construction Supervision (Główny Inspektor Nadzoru Budowlanego) of inactivity on the part of the administration. He referred to his appeal of 12 June 2000 lodged against the decision of the Legionowo Local Inspector of Construction Supervision of 26 May 2000 and requested the acceleration of the proceedings.
23. On 3 April 2001 the applicant again complained to the Chief Inspector of Construction Supervision of inactivity on the part of the administration. He referred to his previous complaint and stated that he had been informed that his appeal would be examined in February.
24. On 27 April 2001 the Chief Inspector of Construction Supervision, finding the applicant’s complaint of inactivity well-founded, set a time-limit of 14 days for the Mazowsze Regional Inspector of Construction Supervision (Wojewódzki Inspektor Nadzoru Budowlanego) to examine the applicant’s appeal.
25. On 29 May 2001 the Mazowsze Regional Inspector of Construction Supervision quashed the contested decision and remitted the case to the first-instance authority.
26. On 2 January 2002 the Legionowo Local Inspector of Construction Supervision, as the authority of first instance, ordered B.G. to carry out works to bring the construction in line with the relevant provisions.
27. On 17 January 2002 the applicant appealed against that decision and requested a demolition order.
28. On 28 February 2003 the Mazowsze Regional Inspector of Construction Supervision upheld the challenged decision.
29. On 2 April 2003 the applicant appealed against that decision to the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny).
30. On 11 October 2004 the Warsaw Regional Administrative Court quashed the challenged decision and the previous decision of the Legionowo Local Inspector of Construction Supervision.
31. On 12 September 2005 the Legionowo Local Inspector of Construction Supervision again ordered B.G. to carry out construction works within three months of the date of the decision and to obtain a building permit.
32. On 27 September 2005 the applicant appealed.
33. On 16 January 2006 the Mazowsze Regional Inspector of Construction Supervision upheld the contested decision.
34. On 15 February 2006 the applicant lodged an appeal with the Warsaw Regional Administrative Court, submitting that the construction works had been carried out illegally and demanding that a demolition order be issued.
35. On 10 July 2006 the Warsaw Regional Administrative Court dismissed the applicant’s appeal.
36. It appears that the applicant did not lodge a cassation appeal with the Supreme Administrative Court.
“Everyone whose legal interests or obligations are involved in [administrative] proceedings, or who requests that [certain] steps be taken by [an administrative] authority with regard to his legal interests or obligations, is a party to the proceedings.”
“Buildings or parts of buildings, which are being or have been erected in violation of the laws in force at the time of their erection, are subject to compulsory demolition ... if the administrative authority establishes that the building or relevant part:
1) ...
2) constitutes a danger ... to persons or property, or has an inadmissibly deleterious effect on the sanitary or functional conditions of the surroundings. ...”
38. The relevant domestic law concerning inactivity on the part of administrative authorities is set out in Grabiński v. Poland, no. 43702/02, §§ 60-65, 17 October 2006.
39. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
VIOLATED_ARTICLES: 6