ITEMID: 001-72931
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2006
DOCNAME: CASE OF MUSCI v. ITALY
IMPORTANCE: 1
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 1923 and lives in Catanzaro.
13. On 21 May 1986 Mr P. brought proceedings against the applicant in the Chiaravalle Centrale Magistrate’s Court for recognition of the existence of a right of way.
14. Preparation of the case for trial began on 28 May 1986 and on that date the Magistrate’s Court appointed an expert. Of the seven hearings listed between 8 October 1986 and 2 December 1987 three were devoted to organising expert evidence, two to an inspection of the premises by the pretore, two were adjourned by the court of its own motion and one was adjourned because the lawyers were on strike. On 27 July 1988 the Magistrate’s Court set the case down for hearing of oral submissions on 1 March 1989. On that date the hearing was adjourned to 5 July 1989 at the parties’ request. Of the fifteen hearings listed between 2 May 1991 and 4 June 1997 six were adjourned at the parties’ request, two at the request of the defendant, five by the court of its own motion – one of which was because the registry had not notified the applicant of the date of the hearing – one because the applicant had changed lawyer and another one to allow the registry to check that the stamps had duly been affixed to a number of documents in the case file. Judgment was reserved on 22 October 1997.
15. In an order of 26 November 1997, which was not made at a hearing, the court declared the case reopened and requested the parties to file documents with the registry. On 4 March 1998 the court reserved judgment.
16. In an order of 9 April 1998 the court declared the case reopened, noted that the parties had not yet filed the documents requested and adjourned the case to 7 October 1998. On that date judgment was reserved.
17. In a judgment of the same date, the text of which was deposited with the registry on 16 August 1999, the Magistrate’s Court granted Mr P.’s application.
18. On 27 October 2000 the applicant appealed to the Catanzaro Court of Appeal. According to information provided by the applicant on 6 June 2005, the first hearing, which was to be held on 22 January 2001, was not held until 10 December 2001 following two adjournments of the court’s own motion and an adjournment of a hearing because the registry had not notified the parties of the hearing date. The parties made their submissions two hearings later, on 27 May 2002, and the hearing of final submissions was set down for 9 December 2003. That hearing was adjourned to 6 July 2004 following the transfer of the judge directing the preparations for trial, then to 18 January 2005. On that date judgment was reserved.
19. In a judgment of 21 February 2005, the text of which was deposited with the registry on 18 March 2005, the Court of Appeal set aside the first-instance court’s judgment and allowed the applicant’s appeal. According to information provided by the applicant on 14 October 2005, as the judgment had not been served the time allowed for appealing to the Court of Cassation was still running.
20. On an unspecified date in April 2002 the applicant lodged an application with the Salerno Court of Appeal under Law no. 89 of 24 March 2001, known as the “Pinto Act”, complaining of the length of the above-described proceedings. He requested the court to rule that there had been a breach of Article 6 § 1 of the Convention and to order the Italian State to pay compensation for the distress and other non-pecuniary damage sustained. The applicant claimed 13,000 euros (EUR) in compensation for distress and other non-pecuniary damage, and sought reimbursement of the costs and expenses but did not quantify them.
21. In a decision of 1 October 2002, the text of which was deposited with the registry on 13 December 2002, the Court of Appeal found that the length of the proceedings had been excessive. It held as follows:
“ ... [the proceedings], given the manner in which they were conducted, cannot be deemed particularly complex. That said, it should be pointed out that the proceedings gave rise to many hearings, some of which were mere adjournments, and as such unnecessary. With regard to the conduct of the parties, the adjournments they requested or at least agreed to must be attributed to them. They must therefore be deemed responsible for the adjournments requested by one party and which the other parties did not oppose or which were accepted and therefore allowed by the court. ... The fact that the court allowed the parties to exercise ... [through those adjournments] their right to a defence cannot be blamed a posteriori on the public organisation of the service.
The remaining period does have to be attributed to the conduct of the judicial authorities, however, both regarding the intervals relating to the adjournments of the court’s own motion and the adjournments for reasons relating to investigation measures which took longer than a reasonable time to carry out.
Indeed, when the situation is analysed in accordance with Law no. 89/01 [Pinto], the time that elapsed between the beginning of the proceedings and the end is a central factor: in this sense, the fact that the length of the proceedings, which is not attributable to the parties’ conduct, is otherwise determined – in the sphere of the organisation of the court service and, in general, the services managed by the authorities involved in giving a decision or contributing to the disposal of the proceedings – by personal or structural factors, such as the shortage of staff when compared with the demands of the workload, does not change the conclusion that this time must be attributed to the State, which has not assigned the resources necessary to dispose of a trial speedily.
Accordingly, on the basis of that analysis the delays attributable to the parties can be quantified at three years and two months at first instance. The proceedings are still pending on appeal but the case has already been referred to the appropriate Chamber for the hearing of final submissions on 25 February 2003 and, given that the first hearing was held on 22 January 2001, the period can be regarded as falling within the reasonable time-span of two years.
On that basis, the delays attributable to the organisation of the courts, less the delays attributable to the parties, amount to twelve years and ten months.
Moreover, taking the main thrust of the case-law of the European Court of Human Rights as a basis, a reasonable time for the average timescale for the conduct of a case at first instance can prima facie properly be fixed at three years. For proceedings dealt with also on appeal the reasonable length can be fixed at about five years for proceedings whose subject-matter is nothing out of the ordinary.
In the instant case, therefore, the surplus time must be deemed to be approximately seven years and ten months.
The reasonable time must accordingly be deemed to have been exceeded in so far as the case was not particularly complex and the delays attributable to the parties have already been taken into account.
For the rest, the claim for compensation of 13,000 euros appears totally disproportionate and unsupported by evidence. Accordingly, the award must be significantly less.
Consequently, having taken into consideration the parties’ interest in having the proceedings disposed of, as their conduct has shown, the lack of complexity of the case, in the absence of evidence supplied by the parties, and the limited impact of the non-pecuniary damage, the court considers it equitable to award Mr Musci 3,500 euros in damages.”
The Court of Appeal awarded the applicant EUR 3,500 on an equitable basis in compensation for non-pecuniary damage. In respect of costs and expenses, the Court of Appeal noted that the applicant had not given particulars of the claim. Having regard to the quantity and quality of the work done by the lawyer, it awarded him only half the sum he had considered due EUR 516.46 (that is, EUR 258.23) plus tax. That decision became final by 28 January 2004 at the latest. The applicant obtained payment of the amounts due from the authorities on 19 November 2004.
22. In a letter of 20 October 2003 the applicant informed the Court of the outcome of the domestic proceedings and asked it to resume its examination of his application.
23. In a letter of 18 November 2003 the applicant informed the Court that he did not intend to appeal to the Court of Cassation because an appeal to that court could only be on points of law.
24. 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.”
“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.”
“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.”
“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.”
“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.”
25. 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.”
26. 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)”.
27. 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...”
28. 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.
29. 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.
30. 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. ...
31. 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.
32. 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...”
33. 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. ...”
34. 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. ...”
35. 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.
36. 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: 001-5661
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: ELIAS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1960 and living in London. He is represented before the Court by Mr S. Creighton, a lawyer practising in London.
The applicant was charged with conspiracy to receive and handle stolen goods (computers and computer parts). The trial commenced on 12 January 1998 in the Crown Court.On 17 March 1998 prosecuting counsel, in his closing speech, described the applicant in the following terms:
“Completely and utterly and thoroughly dishonest from the heart, I suggest to you. The most self-regarding, utterly cynical, greedy and world-weary (as one of his clients said) man. You can’t believe, I suggest, a single word he says. When he is not actually lying he is being evasive, dishonestly precise, prevaricating and economical with the truth. A master of deceit.
... [The applicant’s running record of his dealings and assets] is an important document in its own way because again it reveals something about the psychology of this man why he was behaving in the way he did. It is, members of the jury, the document in which he lists his money. It was last modified, if you turn back one page, on the day before his arrest at 8.34 in the morning. The police arrived too early for him on 20 July to have amended it, updated it, for that day but here he lists all his assets and substantial they are: £141,000. Why, members of the jury, does this man update his list of assets so regularly? Then I draw the analogy with Oliver Twist who is seen in the musical where Fagin gets his box out from under the floorboards when he thinks it is all going to go wrong and goes through all the money and the lolly and the jewels and everything he has stashed away under the floorboards, because, like Fagin, I suggest he is in the end keeping his hands on his own material and this is his record. Of course he doesn’t have a box any more like Fagin. He has stashed it these days in Jersey. Members of the jury, as well he is very similar because of course until towards the end he doesn’t actually go out and directly grubby his hands with the burglars. He is always just at one remove, is he not, on the evidence in this case?”
The applicant’s counsel, in the absence of the jury, complained to the trial judge about the remark. After an exchange between the respective counsel, the judge stated that it had occurred to him at the time of the remark that the reference was unfortunate, and he could understand the applicant feeling upset about it. He was sure, however, that it was not intended, and expressed the hope that no more would be said about it.
After the lunch adjournment, counsel for the applicant submitted, again in the absence of the jury, that the analogy was offensive, anti-Semitic and that the jury might be influenced to be prejudiced against the applicant on grounds of race. The applicant, like the character of Fagin, was Jewish Accordingly, the jury should be discharged and there should be a retrial. Counsel for the prosecution repeated that his reference to Fagin had intended to be a reference solely to a well-known receiver of stolen goods, and stated that if he had given offence to the applicant, he apologised. In replying, counsel for the applicant noted that to compare a figure with Fagin was a very serious matter, and that if the trial were to continue, the applicant, if convicted, could be left with the impression that he had not had a fair trial. The trial judge dismissed this application, holding that the comments made by prosecuting counsel as to the applicant’s character were within the scope of what could be said in the trial by the prosecution and that with regard to the complaint as to the analogy with Fagin, the possibility that a jury would be influenced and prejudiced against the applicant on grounds of race or religion as a result of such analogy was a remote in the extreme. He did not accept that a dispassionate observer would consider that the trial had been unfair because of the analogy, considering rather that it was more likely that any prejudice would be against the Crown for having raised the issue. In closing his remarks on the application for discharge, the judge noted that prosecuting counsel had offered to apologise for the offending words, and that counsel for the applicant would then have the opportunity to reply. The judge indicated that, unless the issue was further discussed, he intended to direct the jury to make their decision on the evidence, without specific reference to the incident.
When the jury returned, prosecuting counsel apologised in open court, apologising to the applicant, and emphasising that he did not wish the applicant to feel any offence, and that the jury should not decide on the basis of the applicant’s Jewish origin. He also reminded the jury that at the end of the case they were to decide on the evidence, and not on the basis of any analogies.
The applicant was convicted and sentenced on 6 April 1998 to two years’ imprisonment and a confiscation order of £120,000, with three years’ imprisonment in default. He was also ordered to pay £25,000 towards the costs of the trial.
The applicant appealed against his conviction and sentence. After leave to appeal had been granted by a single judge, the appeal was heard by the Court of Appeal on 20 November 1998. The appeal against sentence was allowed to the extent that the period of three years’ imprisonment in default was reduced to two years, and the order for costs was quashed. The appeal against conviction was on the grounds that the trial judge ought to have discharged the jury following the racially offensive comparison of the applicant to Fagin. The Court of Appeal refused the appeal against conviction:
“ ... so far as the reference to Fagin is concerned we have no doubt that it was ill-judged. We accept, as all appear to have accepted (save possibly [the applicant] himself) that there was no intention on the part of counsel to introduce a racial slur. However, in the case of a Jewish defendant, counsel’s words were almost bound to give offence. It may well be the case that reference to literature’s best known receiver of stolen goods is frequently made at handling trials, without any thought for racial overtones to which it may give rise. However, the very example of this case indicates that such an advocates’ shorthand is likely to give unnecessary offence to those who regard Fagin not simply as an accomplished receiver but as an offensive racial stereotype. He was certainly so portrayed in Dickens’ “Oliver Twist”, whatever the ameliorating effects of the modern musical “Oliver”, which is now more likely to govern most people’s mental image of Fagin.
In our view, in any case where reference to Fagin amounts to something more than reference to the concept of a den of thieves and appears to involve a personal analogy between Fagin himself and the defendant, it should be avoided. That said, however, it seems to us quite unrealistic to argue that the error of judgment made by prosecuting counsel in this case, once recognised and made subject of an apology, should, in the absence of more, have caused the judge to discharge the jury from giving a verdict.
...The question to which the judge at the time should have directed himself and which this court must now address is whether, in all the circumstances, there was real danger that the position of [the applicant] had been prejudiced, in the sense that the jury or any of their number might unfairly regard his case with disfavour on the grounds of racial prejudice or bias as a result of prosecuting counsel’s words. The judge did not think so, and nor do we.
This is not one of those cases in which there is any evidence of actual bias in the sense of a remark overheard, or ambivalent behaviour observed on the part of any juror, nor does any inevitable inference of danger of bias arise by reason of what was said. The case of the appellant proceeds on the inherent proposition that, once uttered, the words of prosecuting counsel could not be undone; that, by some kind of empathy, the moment counsel spoke words which appeared to invoke racial bias, some member or members of the jury would immediately adopt it, deserting their task of deciding the case purely upon the evidence; and this despite the express reminder as to their duty given by counsel (only an hour later) in the course of his apology. It further assumes that the jury might maintain that state of mind during their deliberations, despite the judge’s subsequent direction in the course of his summing up to try the matter on the evidence alone. We do not accept that there is any realistic possibility that these propositions are correct.
The only evidence of jury bias which [counsel for the applicant] suggests exists is the fact that [the applicant’s] co-accused [Oliver S.] was acquitted despite his apparent involvement in the conspiracy and certain admissions made to the police. We do not find that point persuasive ... As already indicated, the case against [S.] was that his admissions were obtained as a result of police pressure and there was a weight of character evidence called on his behalf, in a case where his explanations depended upon his presentation as a naive young man fooled by the dishonesty of others more sophisticated than himself. this was not the case of a “cut-throat” defence, with [the applicant] blaming [S.] so that one or other must be lying; the acquittal of [S.] was in no way inconsistent with conviction of [the applicant], against whom the evidence demonstrated far greater involvement and whose own records effectively convicted him.
Given the overwhelming strength of the case against [the applicant], there is no reason to suppose that he was convicted on any basis other than the strength of the evidence against him. His application for leave to appeal against conviction must therefore be dismissed.”
On 21 March 2000 a panel of the Professional Conduct and Complaints Committee of the Bar Council determined the applicant’s complaint to the Bar Council about prosecuting counsel’s behaviour. It accepted counsel’s statement that he did not intend to make racially offensive remarks, but was satisfied that he had gone beyond reference and had strayed into a personal analogy between Fagin and the applicant. The Committee considered the analogy to be insulting, the more so as the applicant was Jewish. The panel found that counsel had engaged in conduct disreputable to a barrister. It considered that the breach was at the lower end of the scale, and, noting the apology proffered, advised counsel to avoid such analogies in the future.


ITEMID: 001-58089
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF FUSCO v. ITALY
IMPORTANCE: 4
CONCLUSION: Art. 6 inapplicable
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 7. Mrs Raffaella Fusco is a secretary and lives in Benevento.
8. On 24 April 1980 she was recruited on a fixed-term contract to the accounts department of Benevento District Council. As her contract had not been renewed after 31 December 1983, she required the Council on 31 July 1984 to reinstate her within sixty days.
When that time-limit expired, the applicant applied to the Campania Regional Administrative Court (“the RAC”) on 8 October 1984 for judicial review of her employer's tacit refusal and recognition of the existence of a permanent contract of employment, in consideration, inter alia, of the conditions under which she had performed her duties, which, she asserted, were comparable to those obtaining in the case of an ordinary contract of employment with the administrative authorities.
9. On 26 October 1984 she asked for a date to be fixed for the hearing.
10. On 9 February 1993 the President of the RAC referred the case to the 5th Division. The hearing was held on 18 April 1995. In a judgment delivered on that date and deposited with the registry on 26 September 1995 the RAC declared the application inadmissible.
11. On 21 November 1995 Mrs Fusco appealed to the Consiglio di Stato. According to the information supplied by her lawyer at the hearing before the Court, the proceedings are still pending.


ITEMID: 001-58123
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF RANINEN v. FINLAND
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 5-1;Not necessary to examine Art. 5-2;No violation of Art. 3;No violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: R. Pekkanen
TEXT: 7. The applicant is a Finnish national who was born in 1967 and resides in Helsinki.
In 1986 he was called up for military service but his duty to report for service was suspended until 20 March 1992 because of his studies. Prior to this date he declared in writing to the army that he objected to performing any kind of military or substitute civilian service.
On 7 April 1992 he presented himself at the Army Headquarters (pääesikunta, huvudstaben) and submitted a petition against military service. After having reiterated his petition the following day he was arrested on suspicion of having avoided service. He was eventually brought to the barracks of the Pori Brigade (Porin Prikaati – “Pori barracks”) at Säkylä, where he had been due to report on 20 March 1992. On his renewed objection to carrying out military duties his arrest was prolonged on 9 April.
8. On 11 April 1992 the District Court (kihlakunnanoikeus, häradsrätten) of Eura ordered the applicant’s detention on remand in the County Prison of Turku. On 24 April the District Court convicted and sentenced him to imprisonment (suspended) for having avoided military service from 20 March to 8 April and for having committed an offence in service on 9 April (Chapter 45, Articles 4 and 15, of the 1889 Penal Code (rikoslaki, strafflag 39/1889 as amended by Act no. 792/89)).
The above offences applied to conscripts like the applicant who refused to perform either military or substitute civilian service. Punishment imposed for such refusal did not relieve the conscript from his duty to serve, which applied until the end of the year of his thirtieth birthday (section 23, subsection 2 (3) and section 15 of the 1950 Military Service Act).
9. Immediately upon his release on 24 April 1992, military staff brought the applicant back to the Pori barracks. Subsequently, as he persisted in objecting to military service, he was re-arrested and placed in detention on remand.
On 12 May the District Court convicted him of a further offence in service and sentenced him to imprisonment. The sentence was to be served at a later date.
10. On his release the same day, military personnel brought the applicant back to the Pori barracks. As he continued to object to carrying out military service he was re-arrested and detained on remand.
On 29 May 1992 the District Court convicted the applicant of a further offence in service and sentenced him to imprisonment. The sentence was to be served at a later date.
11. After his release on the same date he was again brought back to the Pori barracks by the military police, where he was re-arrested as he persisted in objecting to military service.
12. On 2 June 1992 the applicant started to serve his sentences at the County Prison. When released on parole on 9 June he was again taken to the Pori barracks by the military police, but since he continued to refuse military service he was re-arrested and placed in detention on remand.
13. On 18 June the District Court convicted the applicant of two offences in service and sentenced him to further imprisonment. The sentence was to be served at a later date. The District Court in addition revoked the order to release the applicant on parole.
14. After the court hearing on 18 June 1992, the applicant was, as had occurred on previous occasions, taken back to the County Prison before being released.
In the prisoners’ check-out room, a military police squad consisting of conscripts and headed by R., a corporal, waited for the applicant. In the prison courtyard he was handcuffed and informed of his arrest. He was subsequently taken to the military police vehicle outside the prison gate. Members of his support group, who had been waiting for him outside the gate, were photographing and videotaping the incident.
He was then taken back to the Pori barracks at Säkylä, situated 100–150 kilometres from Turku, a journey which normally takes approximately two hours by car.
Following his arrival at the Pori barracks, the applicant was taken to the military hospital at the compound. He was released from his handcuffs in the hospital’s entry hall.
15. According to the applicant, the measures taken by the military police had all been against his will. In the Government’s submission, he had consented to being transported to the military hospital.
16. The applicant did not undergo any medical examination at the military hospital but was subjected to further questioning by army personnel on 19 June 1992, during which he renewed his objection to military service. As a result he was re-arrested at 8.05 a.m. on the same date.
17. On 22 June 1992 the District Court again ordered his detention on remand in the County Prison. On 26 June he started serving the aggregated prison sentence imposed by the District Court on 18 June (see paragraph 13 above).
On 29 June the applicant was convicted of an offence committed in service on 19 June 1992 and sentenced to further imprisonment. In its judgment the District Court stated that he had been deprived of his liberty as from 19 June.
18. On 20 August 1992 the applicant was released from prison on parole. As he continued to object to military service he was twice detained on remand, in August and September, and was convicted of further offences in service and sentenced to further imprisonment.
On 5 October 1992 the applicant was discharged from his military service for one year.
19. On 16 February 1993 the applicant lodged a petition with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman; “the Ombudsman”), complaining in particular about the deprivation of his liberty from 18 to 19 June 1992 and the related handcuffing. He emphasised that at no moment had he attempted to escape from the military police or otherwise shown any intention of doing so. He had also been handcuffed on 11 April and 2 June 1992 while being transported to the County Prison after the District Court’s hearings.
In his petition the applicant also submitted that, on his arrival at the Brigade on 18 June 1992, R. had asked him whether he would agree to go to the military hospital. The applicant had then restated his objection to performing any kind of service but he had not consented to going to the hospital, as was shown by the fact that he had been handcuffed until his arrival there. At any rate, he had not acted in a way which could lead anyone to believe that he had wished to receive hospital care.
20. Heard as a suspect at the Ombudsman’s request, R. stated that he had been instructed by the Legal Officer of the Pori barracks to bring the applicant back to the compound. After the applicant had been released in the prison courtyard, R. had ordered the military police to apprehend him. According to the training provided to members of military police squads, a person who was to be arrested was to be informed thereof and was also to be handcuffed. On the applicant’s return to the Pori barracks, R. had been instructed by the Duty Officer to ask the applicant whether he would agree to take up his military service. As he objected he had, with his own consent, been brought to the military hospital. As far as R. could remember, the applicant had been released from his manacles in the hospital yard.
21. The army authority in the Pori Brigade told the Ombudsman that the purpose of the applicant’s apprehension had been to ensure that he would remain in the hands of the military authorities, given that he had been ordered to take up his service at that compound. The military police had not been given any instructions concerning his transportation in handcuffs. Nor did the situation as a whole seem to have required such a measure, considering that his arrest had not been ordered and, as on previous occasions, he was only to be returned to the Pori barracks. In view of his repeated convictions for military offences, R. had nevertheless considered that the applicant’s handcuffing was necessary in order to ensure his return to the Pori barracks.
22. The Army Headquarters made the following observations to the Ombudsman. The applicant’s arrest had taken place immediately on his release by the prison authorities. There was no evidence at that time that he continued to object to performing military service or to returning to his military compound with the military police. The measures ordered by R. appeared to have been based on the applicant’s earlier repeated objections to performing any kind of service and the likelihood that this would continue. Moreover, his support group had been disturbing R. during the incident.
The Army Headquarters nevertheless conceded that, on the basis of the evidence available, there had been no acceptable grounds for arresting the applicant, which measure had stemmed from the fact that R. had made an incorrect assessment of the situation in combination with the surrounding circumstances. Nor had there been any justification for handcuffing the applicant. According to the relevant permanent instructions, manacles could be used temporarily in order to calm down a person behaving violently who was to remain in the hands of the authorities or if there was a specific reason for suspecting that he would escape. Although the applicant had, on several occasions, committed punishable acts and his support group had attended his release from the County Prison, it had not been likely that he would escape on that occasion.
23. In his decision of 20 May 1994 the Ombudsman noted that the military authorities had had no reason to fear that the applicant would attempt to escape. On previous occasions the latter had in fact presented himself voluntarily to them. The Ombudsman considered that the applicant’s arrest on 18 June 1992 had lacked a legal basis since, prior to the measure, he had not been asked whether he would persist in his refusal to perform military or substitute service. The Ombudsman furthermore stated:
“There were no objectively justifiable grounds for putting Raninen in handcuffs. Apparently R. proceeded in this situation as he had been trained to do.
When evaluating the actions of R., one must take into consideration his inexperience and the rather general nature of the directions which he had received from his brigade. R. himself believed that he acted in accordance with orders. A more experienced military person should have been assigned to fetch Raninen from the County Prison. It is not even claimed that R.’s behaviour was inappropriate in any other respect. In my opinion, and taking into consideration the circumstances, this action does not call for measures to be taken against R. by the Ombudsman.”
In addition, he urged the Army Headquarters and the Pori barracks’ Commander to see to it that in both the training and activities of the military police a clear distinction was made between situations arising in times of peace and of war.
The Ombudsman did not order that criminal charges be brought.
24. On 20 February 1995 the District Court (käräjäoikeus, tingsrätten) of Kokemäki convicted the applicant of refusal to carry out military service under section 39 of the 1950 Military Service Act (asevelvollisuuslaki, värnpliktslag 452/50, as amended with effect from 1 June 1994). This provision authorised the punishment of a conscript who categorically objected to performing military service, who did not opt for substitute civilian service and whose behaviour would not change as a result of punishment imposed under Chapter 45 of the Penal Code. The District Court sentenced him to 194 days’ imprisonment. Since he had already served 212 days of his previous sentences, this was considered sufficient.
25. According to the Military Discipline Act 1983 (sotilaskurinpitolaki, militär disciplinlag 331/83), a person caught committing a military offence or suspected on likely grounds of having committed such an offence may be arrested provided this is necessary in order to maintain or restore discipline, order or safety (section 16).
26. According to the 1889 Penal Code (rikoslaki, strafflag 39/1889), a soldier carrying out police duties is entitled, if he encounters resistance, to use the necessary force justified by the circumstances (Chapter 3, section 8a, as added by Act no. 321/83).
27. According to the 1990 Educational Guide intended for the members of the military police force, a person who is to be transported shall be handcuffed. Its preface states that it is principally intended for use in wartime or when there is a threat of war. It underlines that in peacetime the military police shall not use more violence than the situation calls for when, for instance, transporting an arrested person.
28. Article 93 §§ 2 and 3 of the Constitution (Suomen hallitusmuoto, Regeringsform för Finland 94/19) provides:
“Anyone whose rights have been infringed or who has suffered damage as a result of an illegal act or negligence by a civil servant, is entitled to claim that the civil servant be punished and ordered to pay compensation for damages or to demand that he or she be prosecuted in accordance with the rules provided for by law.
Whether and to what extent the State is liable to pay damages caused by civil servants, is to be governed by specific provisions.”
29. A civil servant who, by intent or neglect or carelessness, acts or omits to act in breach of his or her professional duties as provided for in statute or regulation is liable to punishment, if the act or omission is not insignificant, having regard to the damage caused and other circumstances (Chapter 40, Articles 10 and 11 of the Penal Code).
Article 12 of Chapter 40 provides that the failure to observe military duties may also be considered under the particular offences laid down in Chapter 45.
According to Article 15 of Chapter 45, a member of the armed forces who, by intent or neglect or negligence, fails to comply with the relevant military rules and regulations is liable to disciplinary sanctions or to imprisonment of up to one year. Specific provisions on disciplinary measures are contained in the Military Discipline Act 1983 (sotilaskurinpitolaki, militär disciplinlag 25.3.1983/331).
30. If the Parliamentary Ombudsman receives a petition against a public official or authority concerning a matter falling within his area of competence, he or she is to carry out an investigation. If the Ombudsman suspects that the person or authority concerned has committed an unlawful act or a fault calling for his intervention, he or she must inform and hear that person or authority. If the matter cannot rest by the Ombudsman expressing criticism, he or she must prosecute, or have prosecuted, the person who is suspected of being guilty of the unlawful conduct or order that disciplinary proceedings be instituted against the latter (Rule 7 of the Parliament’s Instruction to the Parliamentary Ombudsman, Eduskunnan oikeusasiamiehen johtosääntö, Instruktion för riksdagens justitieombudsman 10.1.1920/2).
31. A person who has been deprived of his or her liberty for twenty-four hours or more may claim compensation from the State under section 1 (4) of the 1974 Act on Compensation by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons (laki 422/74 syyttömästi vangitulle tai tuomitulle valtion varoista vapauden menetyksen johdosta maksettavasta korvauksesta, lag 422/74 om ersättning av statens medel som till följd av frihetsberövande skall betalas till oskyldigt häktad eller dömd, hereinafter referred to as “the Compensation for Deprivation of Liberty Act”).
32. Under the Damage Compensation Act 1974 (vahingonkorvauslaki, skadeståndslag 412/74) proceedings may also be brought against the State in respect of damage resulting from fault or neglect by its employees in the performance of their duties (Chapters 3 and 4).
In a decision of 31 October 1985, Turku Court of Appeal ordered the State to pay compensation under the Damage Compensation Act 1974 to a person who, after causing disturbance at the emergency unit of a hospital, had been arrested and left by the police at a forest road nine kilometres from the town centre. Although it had been lawful to arrest him, the Court of Appeal considered that the measure had been carried out in a manner which constituted a breach of the police officers’ professional duties and which had caused suffering deserving of compensation to the person concerned. In addition it ordered the police officers to pay fines.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_ARTICLES: 3
8