ITEMID: 001-89994
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: TRIFUNOVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mrs Milka Trifunović, is a national of Bosnia and Herzegovina who was born in 1941 and currently lives in Munich. She was represented before the Court by Mr Č. Prodanović, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s husband, V.T., was an officer serving in the Yugoslav Peoples’ Army (“the YPA”). In 1984 the YPA awarded him, and he became the holder of, a specially protected tenancy (stanarsko pravo) of a flat in Zagreb. Pursuant to the relevant legislation, the applicant as his wife automatically became a co-holder of the specially protected tenancy of the flat in issue.
After a trial in absentia, on 16 March 1993 the Varaždin County Court (Okružni sud u Varaždinu) found V.T. guilty of a war crime against the civilian population and sentenced him to fifteen years’ imprisonment. The judgment was upheld on appeal by the Supreme Court on 12 January 1994. The courts found that in the period between 15 and 22 September 1991, during the siege of the YPA’s military barracks in the town of Varaždin, V.T. as a commander of the 32nd (Varaždin) corps of the YPA had ordered indiscriminate attacks on civilian targets in the town.
On 7 July 1994 the State brought a civil action against V.T. and the applicant in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking termination of their specially protected tenancy and the applicant’s eviction. The plaintiff relied on section 102a of the Housing Act.
On 9 June 2000 the Municipal Court ruled for the plaintiff. It terminated the tenancy of V.T. and his wife and ordered the applicant (the wife) to vacate the flat within fifteen days. In the reasons given for its decision the court referred to the State’s obligation stipulated in paragraph 2 of section 102a of the Housing Act (see below). V.T. and his wife appealed.
On 28 May 2002 the Zagreb County Court (Županijski sud u Zagrebu) dismissed the appeal and upheld the first-instance judgment.
On 2 August 2002 the applicant lodged a constitutional complaint against the second-instance judgment alleging violations of her constitutional right to equality before the law, the right to be presumed innocent and the right to respect and protection of personal and family life, dignity, reputation and honour.
On 25 January 2006 the Constitutional Court dismissed the applicant’s complaint. It held that the lower courts’ judgments were not a result of the arbitrary interpretation or application of relevant substantive law and that therefore her constitutional right to equality before the courts had not been breached. Moreover, since the outcome of the proceedings the applicant had complained about did not involve the determination of her criminal liability, her right to be presumed innocent could not have possibly been breached in such proceedings.
On 19 June 1991 the Specially Protected Tenancies (Sale to Occupier) Act entered into force. It entitled holders of specially protected tenancies of flats in social ownership (društveno vlasništvo) to purchase their flats under favourable conditions.
On 17 August 1995 the Amendments to the Act entered into force extending the right of purchase to holders of specially protected tenancies of flats in state ownership (državno vlasništvo).
The applicant never filed a request with the competent authorities with a view to purchasing her flat because she considered that she could not have done so while the proceedings for termination of her specially protected tenancy were pending.
The Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993), as in force at the material time, provided as follows:
Section 64
“2. If a specially protected tenancy was acquired by one spouse who lives with the other, the other shall also be considered as having acquired it..
3. If one of the spouses dies or permanently ceases to use the flat, the other spouse shall retain the tenancy, unless otherwise provided for by this Act.”
Section 102a
“1. A specially protected tenancy of those who participated or participate in enemy activities against the Republic of Croatia shall be terminated.
2. Following the court decision on the termination, the owner of the flat shall provide either the same flat or other appropriate lodging for use by the [other] members of the household.”
Section 105
“1. The provider of the flat shall terminate a specially protected tenancy by bringing an action in the competent court.
2....
3. The judgment ordering eviction shall not be enforced if the person to be evicted is not provided with another flat or basic accommodation [nužni smještaj], when that is required by this Act.
4. Another flat shall be secured by the provider of the flat at the latest by the end of the main hearing in the proceedings for the termination of the specially protected tenancy, unless otherwise provided for by this Act.”
5. Basic accommodation shall be secured in enforcement proceedings.”
Section 108
“The duty of the tenant to vacate the flat extends to other users of that flat, unless otherwise provided for by this Act.”
According to the Supreme Court’s jurisprudence, the specially protected tenancy was terminated as soon as the court’s judgment, upholding the claim of the provider of the flat to that end, became res judicata (see, inter alia, the Supreme Court’s decision no. Rev-1009/1993-2 of 15 June 1994).
In its decisions nos. Gzz-11/1996-2 of 27 November 1996, Rev-211/1996-2 of 28 January 1997, Rev-935/1995-2 of 23 September 1997, Gzz-7/1996-2 and Gzz-35/1996-2 of 7 September 1999 the Supreme Court held that where a spouse acquired a specially protected tenancy on the basis of section 64 of the Housing Act, his or her right was to be considered derived from that of the other spouse to whom the flat had originally been awarded (that is, the original holder of the tenancy). Consequently, when the specially protected tenancy of the original holder was terminated, the tenancy of the other spouse derived from it was to be considered terminated as well.
In its opinion no. Su-IV-482/2002 of 17 May 2002 and decisions nos. Rev-431/1998-2 and Gzz-46/01- 2 of 10 January 2002, Gzz-33/00-2 of 19 November 2002, Gzz-36/1999-2 of 26 March 2003, Gzz-81/2003-2 of 7 May 2003 and Gzz-35/2000 of 6 October 2004 the Supreme Court held that in a judgment terminating the specially protected tenancy of the original holder, and consequently that of the spouse, on the basis of section 102a (1) of the Housing Act, a court was entitled to order the eviction of the original holder but not of the spouse whose tenancy was derived from it. This was so because the spouse was entitled to remain in the flat in the capacity of a household member, pursuant to section 102a (2) of the Housing Act, until the provider of the flat either gave him or her the same flat for use or provided him or her with other appropriate lodging. Only in circumstances where the requisite alternative accommodation was secured for the spouse and other household members, but they nevertheless continued to occupy the flat, was the provider of the flat entitled to bring a separate civil action for their eviction. However, in the above mentioned decision no. Gzz-36/1999-2 of 26 March 2003 the Supreme Court upheld a judgment in which, apart from terminating the specially protected tenancy of both spouses under section 102a (1) of the Housing Act, the lower court also ordered their eviction but made that order in respect of the wife – a household member – conditional upon providing her with alternative accommodation. The Supreme Court upheld the judgment because, as it was formulated, it was not detrimental for the wife as the household member.
In its decisions nos. U-I-116/1992 of 24 June 1992, U-III-326/1995 of 24 February 1999, U-III-435/2000 of 17 May 2000 and U-III-457/2000 of 13 December 2000 the Constitutional Court held that section 102a of the Housing Act did not introduce the principle of collective guilt because its paragraph 2 obliged the State to provide for the household members by meeting their housing needs. Nor did it violate the constitutional right to be presumed innocent because, properly interpreted, that provision could only be applied to those holders of specially protected tenancies who had been convicted by a final judgment delivered in criminal proceedings.
The Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 27/1991 with subsequent amendments – “the Sale to Occupier Act”), which entered into force on 19 June 1991, entitled the holder of a specially protected tenancy (“the tenant”) of a socially-owned flat to purchase it from the provider of the flat under favourable conditions. The members of the tenant’s household were also entitled to do so upon his or her approval (section 6 paragraph 1). Where both spouses were holders of the specially protected tenancy of a flat, they could buy it either jointly or individually with the consent of the other (section 6 paragraph 2).
Section 4 (2) provided that a written request for purchase (the first request) had to be made within one year of the date of the Act’s entry into force (this time-limit was by subsequent amendments to the Act extended until 31 December 1995), and a further request for the actual conclusion of the purchase contract (the second request) within the two years following the first request.
In its decision no. Rev-944/99-2 of 13 August 2002 the Supreme Court interpreted section 4 (2) of the Specially Protected Tenancies (Sale to Occupier) Act as follows:
“Since the plaintiff did not make a request for purchase of the flat to the respondents in written form until 31 December 1995, as provided by law, [...], the lower-instance courts correctly assessed that the plaintiff had lost his right to request the conclusion of the purchase contract.”
The Amendments to the Sale to Occupier Act (Zakon o izmjenama i dopunama Zakona o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 58/1995 – “the 1995 Amendments”), which entered into force on 17 August 1995, extended the right of purchase to the holders of specially protected tenancies of state-owned flats.
Section 16 read as follows:
(1) Holders of specially protected tenancies [...] shall have the right to purchase their flats in state ownership.
(2) The provisions of section 6 of [the Sale to Occupier Act] shall not apply to the purchase of flats in state ownership.
(3) The following persons shall not be entitled to purchase, or transfer the right to purchase, a flat in state ownership:
- those sentenced by a final judgment for crimes against humanity and international law,
- those sentenced by a final judgment for crimes against the Republic of Croatia,
- those against whom criminal proceedings for crimes against humanity and international law or crimes against the Republic of Croatia have been instituted, until the judgment becomes final,
- those who participated or participate in enemy activities against the Republic of Croatia,
- those who have evaded conscription,
- those against whom proceedings for termination of a specially protected tenancy or termination of a lease agreement in respect of a flat have been instituted, until the end of those proceedings,
- those owning a dwelling house or flat in the same place [village, town or city],
- those who have left the Republic of Croatia or have moved to the occupied territories and have not used the flat for more than six months.
Section 20 (1 and 2) of the 1995 Amendments provided that a written request to purchase a state-owned flat (the first request) had to be made within sixty days of the date of the 1995 Amendments’ entry into force (paragraph 1), after the expiry of which the tenant lost his or her right to purchase the flat (paragraph 2).
Section 20 (3) provided that the seller had to conclude the purchase contract with the buyer within one year after the expiry of the time-limit referred to in paragraph 1 (this time-limit was by subsequent amendments extended until 31 December 1998).
Section 20 (4) provided that if the seller, at the request of the buyer, failed to conclude the contract within the time-limit referred in paragraph 3, the buyer had a right to bring a civil action in the competent court with a view to obtaining a judgment entirely substituting the contract.
Following 37 petitions to review the constitutionality of the 1995 Amendments, on 26 June 1996 the Constitutional Court accepted the initiative and instituted proceedings to that end. On 29 January 1997 it delivered decision no. U-I-697/1995 abrogating a number of provisions of the 1995 Amendments as being unconstitutional. In particular, the Constitutional Court abrogated paragraphs 1 and 2 of sections 16 and 20. It further abrogated paragraph 3 of section 16 in the part relating to the transfer of the right to purchase but held that this abrogation did not relate to sub-paragraphs 6 and 7. Sub-paragraphs 4, 5 and 8 of paragraph 3 of the same section were also abrogated.
It observed that paragraph 2 of section 16, as it read, in fact entitled only the holder of the specially protected tenancy of a state-owned flat to purchase it, thereby effectively excluding the spouse and other members of the household from doing so, an option otherwise available to them under section 6 of the Sale to Occupier Act in respect of socially-owned flats. The Constitutional Court held that the exclusion of that option in respect of state-owned flats was unwarranted and thus amounted to constitutionally impermissible discrimination. In particular, the Constitutional Court held that this discrimination adversely affected, inter alia, a spouse who had acquired a specially protected tenancy by operation of section 64 of the Housing Act but whose tenancy was subsequently terminated as a consequence of the termination of the tenancy of the original holder pursuant to section 102a (1) of that Act.
Paragraphs 1 and 2 of section 20 were also abrogated because of an unwarranted distinction as regards the time-limits for making a request to purchase the flat between the holders of specially protected tenancies of state-owned flats and those of socially-owned flats. The Constitutional Court noted that the holders of specially protected tenancies of state-owned flats had been obliged to make their request within only sixty days following the entry into force of the 1995 Amendments whereas the holders of tenancies of socially-owned flats had had to do so within one year following the entry into force of the Sale to Occupier Act, which time-limit had been extended several times (eventually until 31 December 1995).
In its decision no. Rev-1256/02-2 of 14 July 2004 the Supreme Court interpreted the relationship between the Sale to Occupier Act (in particular its section 4) and the 1995 Amendments as follows:
“The plaintiff made a request for purchase of the flat to the respondent on 18 October 1996, that is, after the expiry of the prescribed time-limit (31 December 1995), so the courts [ruled] correctly [when they] dismissed her claim. The time-limit in question is preclusive, meaning that after its expiry a holder of a specially protected tenancy loses his or her right to make a request to purchase the flat ...
The fact that the proceedings for termination of the specially protected tenancy – that ended by the first-instance judgment [...] of 16 April 1996, which became final on 11 July 1996 – were pending between the parties at the time when the time-limit expired (31 December 1995) is not relevant. [...][Those proceedings] did not prevent the plaintiff from making a request to purchase the flat. ...
The provisions of section 16 of the 1995 Amendments on which the plaintiff relies, and which concern the so-called state-owned flats, did not extend the time-limit for making the request to purchase the flat. Under [section 16 of the 1995 Amendments] the persons, against whom the proceedings for termination of the specially protected tenancy ... have been instituted, could not, until the end of those proceedings, buy a state-owned flat. That means, in particular, that the plaintiff could not have concluded a contract of sale in respect of the flat until 11 July 1996, when the proceedings for the termination of the specially protected tenancy ended ... On that day that impediment ceased to exist ... [H]owever making a written request to purchase the flat before the expiry of the prescribed time-limit is a precondition for the conclusion of the contract [of sale]. Since the plaintiff had not made such a request before the time-limit had expired (31 December 1995) she had lost the right to make the request and the respondent was not obliged to sell her the flat on the basis of the request made after the expiry of the time-limit (18 October 1996). The proceedings for termination of the specially protected tenancy were an impediment to buying the flat (for the conclusion of a contract), but not to making a request to purchase the flat. The existence of the [pending] proceedings does not extend the time-limit for making a request to purchase the flat.
The Constitutional Court’s decision U-I-697/1995 of 29 January 1997 abrogating, inter alia, section 20 paragraphs 1 and 2 of the 1995 Amendments is of no relevance to the outcome of these proceedings. Those abrogated provisions provided that the request ... to purchase the state-owned flat had to be made within sixty days following the entry into force of the 1995 Amendments and that after the expiry of that time-limit the applicant lost the right to buy the flat. [Those provisions] placed the holders of specially protected tenancies of state-owned flats in an unequal position compared to the holders of such tenancies of flats not owned by the State, because for them the considerably shorter preclusive time-limit for making their request to purchase the flat was prescribed (the prescribed time-limit of sixty days expired on 16 October 1995). By the Constitutional Court’s decision the buyers of state-owned flats were put in the same position as other buyers, but they were not given a privileged status so that the prescribed time-limit for making a request to purchase the flat (31 December 1995), valid for all other buyers, would not apply to them.”
The Lease of Flats Act (Zakon o najmu stanova, Official Gazette no. 91/1996 of 28 October 1996), which entered into force on 5 November 1996, abolished the specially protected tenancy as such (section 30 paragraph 1) but provided that proceedings instituted under the Housing Act should be concluded under the provisions of that Act (section 8 paragraph 1).
The Lease of Flats Act regulates the legal relationship between landlord and tenant with respect to the lease of flats. It recognises a special category of tenants, namely those who were previously holders of specially protected tenancies of privately-owned flats or those who did not purchase their flats under the Sale to Occupier Act. That category is subject to a number of protections, for instance, an obligation on the owners that a contractual lease should last for an unlimited period of time; payment of a protected rent (zaštićena najamnina), the amount of which is to be prescribed by the Government, as well as limited reasons for the termination of the lease.
Section 37 provides that if none of the persons living in the flat held the specially protected tenancy at the moment of the Act’s entry into force (for example, the household members) they could institute proceedings before the competent court to obtain the status of lessees under a lease agreement with protected rent.
On 3 October 1991 the Government adopted a decree (Uredba o preuzimanju sredstava JNA i SSNO na teritoriju Republike Hrvatske u vlasništvo Republike Hrvatske) whereby it took all the YPA’s property in Croatia into state ownership.


ITEMID: 001-5376
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: POULSEN v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a Danish citizen, born in 1966. It appears that he resides in Søborg, Denmark. Before the Court the applicant is represented by Mr Erik Turley, a lawyer practising in Hillerød, Denmark.
A.
On 12 October 1993 an indictment was served on the applicant by the Chief of Police in Helsingør (Politimesteren i Helsingør) charging him with having illegally possessed a knife, with a blade whose size exceeded the maximum length permitted under Danish law, and with having assaulted and uttered threats of violence against a social worker on duty.
On 30 May 1994 the City Court of Hørsholm (retten i Hørsholm) held a hearing in which the applicant, assisted by counsel, and four witnesses were heard. On the basis of an evaluation of the available evidence the City Court convicted the applicant and sentenced him to 60 days’ imprisonment. The applicant appealed immediately against the judgment to the High Court of Eastern Denmark (Østre Landsret) claiming acquittal.
On 6 June 1994 the indictment for the proceedings in the High Court was accordingly served on the applicant by the State Prosecutor for Zealand (Statsadvokaten for Sjælland). The indictment also informed the applicant that he would receive further notice about the date of the hearing.
On 8 February 1995 the State Prosecutor issued a writ of summons to be served on the applicant, announcing that the hearing would take place on 14 March 1995 in the High Court. The writ granted the applicant four days’ notice and warned him that failure to appear in court could, inter alia, result in his appeal being dismissed. The writ was forwarded to the Chief of Police of Gladsaxe. It appears, however, that problems arose in that the police were unable to find the applicant in order to serve the writ on him.
Thus, on 13 March 1995 the Chief of Police informed the State Prosecutor that four unsuccessful attempts had been made to serve the writ on the applicant at his registered address and that, by mail, he had been requested to contact the police, which, however, he had not done.
The same day the police succeeded in reaching the applicant through his brother who managed to establish a telephone contact by which the applicant informed the police that he was at present working in Herning (in Jutland) and could not, therefore, come to the hearing in the High Court the following day.
On 14 March 1995 the applicant failed to appear in the High Court for which reason the State Prosecutor requested that the applicant’s appeal be dismissed pursuant to section 965 c § 3, second sentence, of the Administration of Justice Act (retsplejeloven). The applicant’s counsel, who was present in court, objected to the claim for dismissal but did not request leave to plead the case in the applicant’s absence. The High Court allowed the parties to present their arguments on the question of dismissal following which the Court decided as follows: (Translation)
“According to the information available, during the period from 10 February 1995 until 13 March 1995 the State Prosecutor has four times attempted in vain to serve a summons for the hearing on the applicant, who has not been at home at the civil register address indicated and who has not reacted to the invitations of the police to contact the police.
The applicant, who was aware that the appeal had been brought before the High Court, has omitted to give notice to the effect that he does not stay at the address notified to the civil register, but is staying in Herning at present. Since it is then due to the applicant’s circumstances that it has been impossible to serve a summons on him in the usual manner, the High Court finds for the State Prosecutor’s claim of dismissal pursuant to section 965 c § 3, second sentence, of the Administration of Justice Act.”
On 4 May 1995 the applicant applied to the Ministry of Justice for leave to appeal against the dismissal to the Supreme Court (Højesteret). Having obtained written observations from the prosecution and from the applicant, the Ministry refused, on 22 December 1995, to grant leave to appeal.
B. Relevant domestic law
A person convicted in a criminal case tried by a city court is free, in principle, to appeal the judgment to the High Court, to whose district the court in question belongs, cf. section 962 § 1 first sentence, of the Administration of Justice Act. Immediately upon pronouncement of the judgment, a defendant can give notice orally to the court records that he wants to appeal the judgment, cf. section 963 § 3, cf. section 948 § 1, second sentence, of the Administration of Justice Act.
As soon as possible after receipt of the notice of appeal, the State Prosecutor sees to it that attempts are made to serve a notification (notice of appeal and indictment) on the defendant in the usual manner, cf. section 963 § 3, cf. section 948 § 2 of the Administration of Justice Act. The notification must include information to the effect that the defendant or his counsel will later be notified of the time of the hearing, cf. section 963 § 3, cf. section 948 § 2, cf. section 947 § 2 of the Administration of Justice Act.
When an appeal also comprises assessment of the evidence, the State Prosecutor arranges for a summons containing information on the time and place of the hearing to be served on the defendant with at least four days’ notice, cf. section 965 § 1, cf. section 940 § 2 of the Administration of Justice Act. If a summons is not served pursuant to section 965 a § 1, cf. section 840 § 2, of the Administration of Justice Act, or if a summons is served on the defendant at less than four days’ notice, the effect is that the defendant is not lawfully summoned to the hearing, and therefore, as a point of departure, the hearing cannot be held if the defendant fails to appear at the hearing.
However, pursuant to section 965 c § 3, second sentence, of the Administration of Justice Act, the defendant’s appeal may be dismissed if it has been impossible to serve the indictment or the summons on him in the usual manner because he has changed his address or place of residence without giving due notice thereof.
The provision must be seen in the light of section 965 c § 3, first sentence, of the Administration of Justice Act. Under this provision, if a defendant fails to appear without stating a lawful cause of absence in proceedings where the appeal was raised by him and comprises the assessment of evidence, the Court can dismiss his appeal by order if it finds that the hearing cannot usefully be proceeded with in his absence.


ITEMID: 001-67232
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: LITON v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Rob Abdur Al Haj Liton, is a Bangladeshi national who was born in Bangladesh in 1969 and is currently in Sweden. He is represented before the Court by Mr P-E Nilsson, a lawyer practising in Bromma, Stockholm. The respondent Government are represented by their Agent, Ms I. Kalmerborn of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant applied for asylum to the Migration Board (Migrationsverket) on 9 April 2001, claiming that he had arrived in Sweden three days earlier. He presented a Bangladeshi passport to the authorities but he could produce neither his ticket to Sweden nor the required visa.
On 10 April 2001 the Migration Board held an initial interview with the applicant in which he briefly recounted his family background and up-bringing in the city of Karanigonj. He further stated that he had travelled to Stockholm on 5 April 2001 via Delhi and Moscow and that the passport he had given to the Swedish authorities was forged. It had been paid for by his father and the Jatiya Party and given to him by a smuggler. Asked by the Migration Officer about his reason for asylum, the applicant submitted that he had been reported to the Bangladeshi police on false accusations of possessing illegal weapons and of having murdered a supporter of the Bangladeshi Government. He claimed to have been arrested once by the police and detained for two months. In response to further questions, the applicant stated that he had been the treasurer of the Jatiya Party, to which he belonged, and that he had been arrested by the police in 1991 and in 1999, allegedly to prevent the party from continuing with its activities and returning to power. He also claimed that he had been tortured by the police, which had caused damage to his knee and ankle joint and left him with difficulties in walking and lapses of memory. Furthermore, the police had been constantly looking for him in Bangladesh. At the end of the interview, the Migration Officer noted that the part of the record concerning the reasons for asylum had been re-read to the applicant and that he had had nothing to object or add to it. The applicant had moreover confirmed that he had understood the interpreter well during the interview.
On 9 May 2001 the Migration Board held a second interview with the applicant where his legal representative was present and given the opportunity to ask questions. During this interview the applicant submitted, inter alia, the following. He had held the post as treasurer of a welfare fund within the Jatiya Party, the purpose of the fund being to provide support for education of the poor and to provide food in case of famine. His office had been located in Dhaka. He had been arrested twice, both times in his home town Karanigonj, because of false accusations from supporters of the Awami League (the ruling party at the time). Neither arrest had been followed by a trial against him nor had he been appointed a lawyer. The first arrest occurred on 30 March 1999, following a report to the police by the Awami League that he had murdered a person named Anwar. He had been detained for two months during which time he had been beaten with bottles filled with water, sandbags and rifle butts, mostly on his legs. He had been released because he fell ill from the maltreatment. The second arrest had occurred on 10 August 2000, again after false accusations by the Awami League which this time had affirmed that he was, or had been, in possession of illegal weapons. He had been released on 30 August 2000, again due to ill health following physical abuse. Upon release he had been urged by the police to abandon his contacts with his party or he would be killed. During both arrests, he had been held at the central prison in Dhaka. After his release in August 2000 he had lived on the run until he left for Sweden and, consequently, he had not continued to work for the Jatiya Party. However, despite several questions from the Migration Officer, the applicant could not give a clear answer as to where he had lived following his release in August 2000. He stated both that he mainly lived at home with his parents and that he rarely did so since the police had come looking for him almost every other day for more than six months. With reference to the records from the initial interview where he had stated that he had been arrested in 1991, he claimed that it must have been a misunderstanding and that he had said that he began his political activities in 1991. He further claimed that he had already in the initial interview mentioned that he had been arrested in August 2000 and that it was also a mistake that this had not been included in the record.
To support his statements the applicant submitted a certificate dated 7 January 2001 and signed by a Mr Akther Hossain, member of the central committee of the Jatiya Party, which certified that the applicant was a member of the party and had worked for it since 1992, currently holding the post of welfare secretary within the unit of the Karanigonj area. It further stated that he had been arrested more than twice and detained in the Hazat jail where he had been severely tortured. According to the certificate, the police were looking for him and the party had therefore recommended him to leave the country. Last, Mr Hossain requested the Government of Sweden to grant the applicant political asylum.
On 11 July 2001 the Migration Board rejected his application for asylum and ordered that he be expelled to his home country. It first noted that the applicant had not been able to substantiate how he had travelled from Bangladesh to Sweden and consequently it remained unclear how long he had been in Sweden before applying for asylum. It then went on to state that the general situation in Bangladesh was not such as to entitle him to asylum per se. Moreover, there was freedom of political opinion in Bangladesh and the applicant had worked for a party that was legal. The Migration Board considered that his political activities had been very limited and that it was not probable that his political affiliation alone would give rise to a risk of persecution. With regard to the false accusations against the applicant, the Migration Board observed that he had been released both times and that there had been no trial. It was acknowledged that false accusations occurred as part of political life in Bangladesh but this was not found to be a sufficient reason in itself to be granted asylum. What the applicant had submitted in the present case did not give reason to believe that he was in need of protection on account of the accusations. Neither did his submissions provide support for his claim that he would be at risk of renewed arrest if he had to return to his home country. Furthermore, the Migration Board did not question that the applicant had been exposed to ill-treatment or torture during his previous arrests, but considered that he did not risk such ill-treatment, or being punished by death or corporal punishment, if returned. Thus, it was concluded that the applicant was neither a refugee who could be granted asylum nor a person otherwise in need of protection who could be allowed to stay on humanitarian grounds. The latter conclusion was reached after consideration by the Migration Board even though the applicant had not expressly requested it.
The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden), renewing his request for asylum and requesting that he be granted a residence and work permit. He maintained his earlier claims and added that there was a warrant for his arrest and proceedings pending against him before the national courts in Bangladesh. The pending cases concerned the previously mentioned accusation by political opponents. He submitted several documents, most of them in Bengali, to support his statements. Among the documents there was a warrant for his arrest, in English, dated 26 January 1999, and two letters from his defence lawyer in Bangladesh, Mr Bijoy Panna Bhadra. The first letter, written in English, dated 15 April 2001, informed the applicant that Mr Bhadra would be representing him in court against the charges of attempted murder. The second letter, in Bengali, dated August 2002, stated, according to the applicant, that he had been convicted of attempted murder and sentenced to seven years' imprisonment and to pay a fine.
Moreover, the applicant submitted a medical certificate, dated 16 May 2002, to the Aliens Appeals Board in which the chief physician of Western Stockholm's Psychiatric Sector stated that the applicant suffered from Post Traumatic Stress Disorder (PTSD), was depressed and had shown suicidal tendencies. He considered that the applicant was in need of advanced psychiatric treatment.
On 5 July 2002 the Aliens Appeals Board rejected the appeal. It gave the following reasoning:
“The Aliens Appeals Board shares the Migration Board's assessment of the reasons that [the applicant] has invoked before the Migration Board. His submissions now, that legal proceedings have been instituted against him, does not entail that he can be considered to be persecuted or in need of protection. ....
The Aliens Appeals Board, which does not question that [the applicant] has been subjected to ill-treatment in his home country and that his psychological health is poor, cannot however find that a residence permit should be granted to him on this ground. Nor,a residence permit for humanitarian reasons should be granted.”
At the end of August 2003 the applicant lodged a new application with the Aliens Appeals Board for a residence permit on humanitarian grounds, according to Chapter 2, section 5b, of the Aliens Act, and requested that his expulsion be stayed until the new application had been considered and a new medical examination had been carried out.
He submitted a medical certificate, dated 1 October 2002, which stated that he was very depressed and lacked the ability to care for himself. He was diagnosed as suffering from PTSD with anxiety and suicidal thoughts.
Before the Court, the applicant claimed that he had also invoked a document stating that he had been convicted to 14 years' imprisonment, in absentia, by a court in Bangladesh. However, this has been disputed by the Government which claim that no such document had been invoked before the national authorities at any time during the proceedings. The alleged document has not been produced before the Court.
On 2 September 2003, the Aliens Appeals Board decided not to stay the execution of the expulsion order and, on 12 September 2003, it rejected the application. It first observed that the decision to expel the applicant had gained legal force through its decision of 5 July 2002 and that the decision could not be appealed against or re-examined. However, according to Chapter 2, section 5b, of the Aliens Act, the Aliens Appeals Board could examine a new application for a residence permit lodged by an alien who was to be expelled following a final decision. Under this provision, such a new application could be granted only if it was based on circumstances which had not already been examined and if the alien was in need of protection or if it otherwise would be contrary to humanitarian standards to implement the expulsion order. Turning to the issue before it, the Aliens Appeals Board noted that it did not concern a need for protection pursuant to the Aliens Act (i.e. a new request for asylum). It then observed that the medical certificate which the applicant had invoked was almost one year old and that he had not submitted more recent medical certificates. It went on to find that the medical evidence invoked did not show that the applicant's current health condition was of such a character that it would be contrary to humanitarian standards, within the meaning of the Aliens Act, to enforce the expulsion.
On 5 September 2003 the applicant's representative requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court to suspend the applicant's expulsion. On the same day, the applicant allegedly tried to commit suicide by swallowing an unspecified number of cigarettes following which he was taken to hospital. After having received treatment, he was placed in a closed psychiatric care unit. On 8 or 9 September 2003 he escaped from the hospital and went into hiding.
On 17 September 2003 the President of the Chamber to which the case had been allocated decided, under Rule 39 of the Rules of the Court, to indicate to the respondent Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Bangladesh until the Chamber had had an opportunity to examine the application. On 23 September 2003 the Chamber decided, under Rule 54 § 2 (b) of the Rule of the Court, that the Government should be invited to submit written observations on the admissibility and merits of the case. Moreover, it decided to prolong, until further notice, the interim measure indicated under Rule 39.
Following the Court's indication under Rule 39 of the Rules of Court on 17 September 2003, the Migration Board decided on the same day to stay the enforcement of its decision to expel the applicant until further notice. The Migration Board's decision is still in force.
On 28 March 2004, after the Court had received both parties' observations on the admissibility and merits of the case, it received a fax signed by Mr Bijoy Panna Bhadra in which he disputed all the Government's claims concerning him personally as put forward in their observations. He stated that he was a Bar Council licensed lawyer and working at the address mentioned in the letterhead of his letters. As regarded the court case in Bangladesh against the applicant in which he had been convicted of attempted murder, Mr Bhadra stated that it was a mystery that it had disappeared but that sometimes court officials kept files secret, which must have happened in the present case.


ITEMID: 001-72933
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2006
DOCNAME: CASE OF GIUSEPPINA AND ORESTINA PROCACCINI 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 applicants were born in 1932 and 1938 respectively and live in Benevento.
13. On 23 October 1989 Mr G.P., the applicants’ father, brought proceedings against E., a company, in the Benevento District Court to have a contract for the installation of windows in his flat set aside and seeking compensation for the damage incurred.
14. Preparation of the case for trial began on 30 November 1989. Of the eighteen hearings listed between 22 March 1990 and 18 May 1998 three were adjourned by the court of its own motion and three because E.’s lawyer had failed to appear, four were devoted to organising expert evidence, five to hearing evidence from witnesses, one was adjourned because the judge had withdrawn from the case, another one was adjourned because Mr G.P.’s lawyer had failed to appear and a further one was adjourned at his request. The applicants declared their intention to continue the proceedings following Mr G.P.’s death on 27 March 1995.
15. On an unspecified date the case was referred to the bench of judges dealing with the oldest cases (sezione stralcio).
Of the six hearings listed between 15 February 1999 and 9 October 2001 two were adjourned by the court of its own motion, one was adjourned by the judge responsible for preparing the case, one was devoted to a request to set the case down for hearing of oral submissions and two to hearing the submissions.
16. In a judgment of 30 May 2002, the text of which was deposited with the registry on 31 October 2002, the court granted the applicants’ claims in part and awarded them 945.40 euros (EUR) in compensation for the damage sustained.
17. On 10 October 2001 the applicants lodged an application with the Rome 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 applicants requested the court to rule 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 applicants claimed 25,000,000 Italian lire (EUR 12,911.42) each in non-pecuniary damages plus an unquantified amount for costs and expenses.
18. In a decision of 25 February 2002, the text of which was deposited with the registry on 23 April 2002, the Court of Appeal found that the proceedings had been excessively long. It held as follows:
“Whereas...
the applicants, as Mr Giuseppe Procaccini’s heirs, continued the proceedings he had instituted in the Benevento District Court by a summons served on 23 October 1989 seeking an order against the defendant company to replace a number of defective frames that it had installed;
– during the proceedings an expert report was ordered and produced;
– the proceedings are still pending before the sezione stralcio bench;
– there has without any doubt been a breach of the reasonable-time requirement in respect of proceedings that have lasted 9 years;
– for want of proof of pecuniary damage, a total amount of 2,250 euros can be awarded under the head of non-pecuniary loss for damage to quality of life plus statutory interest to accrue from the date of the claim, on account of the very low stakes involved in the proceedings.”
The Court of Appeal dismissed the claim for pecuniary damages for lack of proof and awarded a global sum of EUR 2,250, on an equitable basis, in compensation for non-pecuniary damage and EUR 750 for costs and expenses. That decision was served on 20 December 2002 and became final in February 2003.
19. When payment was not forthcoming, on 26 May 2004 the applicants served notice on the authorities to pay the amounts owed. When that proved unsuccessful they applied for a garnishee order, which was granted them on 12 May 2005 against the Bank of Italy. According to the information provided by the applicants at the hearing on 29 June 2005, the Court of Appeal’s decision had not yet been executed.
20. In a letter of 7 January 2003 the applicants informed the Court of the outcome of the domestic proceedings and asked it to resume its examination of their application.
In the same letter the applicants also informed the Court that they did not intend to appeal to the Court of Cassation because an appeal to that court could only be on points of law.
21. 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
“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.”
22. 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.”
23. 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)”.
24. 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...”
25. 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.
26. 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.
27. 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. ...
28. 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.
29. 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...”
30. 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. ...”
31. 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. ...”
32. 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.
33. 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