ITEMID: 001-72929
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2006
DOCNAME: CASE OF COCCHIARELLA v. ITALY
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);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: Alvina Gyulumyan;Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Elisabeth Steiner;Giovanni Bonello;Jean-Paul Costa;Karel Jungwiert;Khanlar Hajiyev;Lech Garlicki;Lucius Caflisch;Luigi Ferrari Bravo;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Matti Pellonpää;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Stanislav Pavlovschi;Sverre Erik Jebens;Vladimiro Zagrebelsky
TEXT: 12. The applicant was born in 1942 and lives in Benevento.
13. On 15 July 1994 Mrs P., the applicant’s mother, brought proceedings in the Benevento Magistrate’s Court, sitting as an employment tribunal, seeking acknowledgment of her right to an invalidity pension (pensione di inabilità) and an attendance allowance (indennità di accompagnamento).
14. On 23 July 1994 the Magistrate’s Court set the case down for the first hearing on 11 March 1996. On that day the court appointed an expert and adjourned the proceedings to a hearing on 9 April 1997.
15. In a judgment of the same day, the text of which was deposited with the registry on 13 June 1997, the court dismissed Mrs P’s claim.
16. On 29 July 1997 Mrs P. lodged an appeal with the Naples District Court. The president of the court appointed a judge rapporteur and set the appeal down for hearing on 30 April 2001.
17. In the meantime, also on 29 July 1997, Mrs P. died. According to information provided by the applicant’s lawyer on 18 March 1998, when he attempted to file with the court registry the document stating his client’s intention to continue the proceedings as heir, an employee of the Naples District Court registry told him to come back in the year 2000. His reason for this was that the hearing would not be until 2001 and he would otherwise have to waste hours looking in hundreds of cases listed for April 2001. On 25 January 2000 the applicant lodged a document declaring his intention to continue the proceedings as heir. A hearing was listed for 14 February 2002.
18. In a judgment of 16 January 2003, the text of which was deposited with the registry on 21 March 2003, the court noted that a further expert’s report showed that Mrs P. had been suffering from a number of ailments which rendered her totally unfit for work and made it necessary to hire a permanent home help. Accordingly, it granted Mrs P.’s claim from 1 June 1996 until the date of her death.
19. On 3 October 2001 the applicant 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 applicant requested the court to conclude that there had been a breach of Article 6 § 1 of the Convention and to order the Italian State to pay compensation for the non-pecuniary damage sustained, which he had assessed at 30,000,000 Italian lire (15,493.71 euros (EUR)), plus an unspecified amount in costs and expenses.
20. In a decision of 7 March 2002, the text of which was deposited with the registry on 6 May 2002, the Court of Appeal found that the length of the proceedings had been excessive for the following reasons:
“... The first-instance proceedings ended after approximately three years, whereas the appeal lodged in 1997 is still pending.
The Convention principle that everyone’s case must be examined within a reasonable time must be deemed to have been breached.
The length of the proceedings in question does not comply with the reasonable-time requirement because – given the subject matter – they should not have exceeded two years at first instance and eighteen months on appeal since the case is not a complex one.
No particularly repetitive conduct such as to prolong the proceedings can be attributed to the applicant.
It is undeniable that the judicial system – on account of the relevant rules of procedure and the lack of staff – prevents judicial proceedings from being disposed of rapidly, despite the intervention of the legislature, which has introduced specific reforms that have not, however, succeeded in having a decisive effect on the ‘slow workings’ of justice.
Having regard to the foregoing, the Court can only acknowledge that the applicant has incurred non-pecuniary damage as a result of the mental distress and the inevitable state of prolonged anxiety suffered by having to wait approximately seven years for the end of proceedings relating to the right to an attendance allowance.
Considering, on the basis of the above-mentioned factors, that there was a one-year delay at first instance and a three-year delay on appeal, damages may be determined, on an equitable basis, as currently standing at 1,000 euros plus interest accruing from the date on which this decision is deposited.”
The Court of Appeal also awarded EUR 800 for costs and expenses. The decision was served on 20 December 2002 and became final in February 2003.
21. In a letter of 8 January 2003, the applicant informed the Court of the outcome of the domestic proceedings and asked it to resume its examination of the application.
22. When payment was not forthcoming, on 26 May 2004 the applicant served notice on the authorities to pay the amounts due. When that proved unsuccessful he applied for a garnishee order, which was granted on 12 May 2005, against the Bank of Italy. According to the information provided by the applicant at the hearing on 29 June 2005, the Court of Appeal’s decision had not yet been enforced.
23. 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
“(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.”
“(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 until 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.”
24. 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 made 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”.
25. Extracts from the plenary Court of Cassation’s judgment no. 1339 deposited with the registry on 26 January 2004 read as follows:
“2. The present application poses the fundamental question of what legal effect must be given – in implementing Law no. 89 of 24 March 2001, 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 by Law no. 848 of 4 August 1955, on account of a failure to comply with the “reasonable time” requirement referred to in Article 6 § 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 Convention, it is for the Strasbourg Court to determine all the elements of such a legal fact, which thus ends by being ‘brought into conformity’ by the 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 Convention 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 Convention 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 Convention, 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 to 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 the 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 Convention, 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 Strasbourg Court, expressly provided for by the Convention (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 Convention to guarantee to individuals the protection of the rights recognised by the Convention, 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 Convention), 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 applications against Italy in respect of a violation of Article 6 of the Convention 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 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 Convention) 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 Convention, 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 the just satisfaction provided for in Article 41 of the Convention for the excessive length of proceedings (see Brusco v. Italy, decision of 6 September 2001).
This mechanism for implementation of the Convention 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 Convention 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 Convention is admissible (see Scordino 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 Convention to ascertain whether, in the presence of a violation of a provision of the Convention, the internal law has been able to redress fully the consequences of this violation.
The argument whereby, in applying Law no. 89/2001, the Italian courts may follow a different interpretation from that which the European Court has given to the provisions of Article 6 of the Convention (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 Convention 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 Convention 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 to 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 Convention) 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 reasoning, apart from being rendered immaterial by the fact that the European Court has already ruled that non-pecuniary damage had been sustained because of a 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 compensation for non-pecuniary damage 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 (Court HR, 27 March 2003, Scordino v. Italy).”
26. The Court of Cassation held as follows:
“...Where the victim of unreasonably lengthy proceedings dies prior to the entry into force of Law no. 89/2001 [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 ...”
27. 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 put 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.
28. 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 had existed since Italy ratified the European Convention on 4 August 1955.
29. In the case giving rise to the order mentioned above referring the case to the full court (see paragraph 28), 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 the domestic legal order the fundamental rights, belonging to the category of rights conferred on the individual by public law, provided for in Section I of the Convention and which correspond to a large extent to 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. ...”
30. This judgment of the Court of Cassation concerned an appeal by the Ministry of Justice challenging a court of appeal’s award of compensation for non-pecuniary damage to a juristic person. The Court of Cassation referred to the decision reached in Comingersoll S.A. 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.
31. The Court of Cassation made the following observations:
“... [Considering that] 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. 89/2001 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 ...”
32. 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.
...”
33. 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;
...”
34. 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.
35. In its framework programme (CEPEJ (2004) 19 Rev 2 § 6), 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: 001-5383
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: BARRY v. IRELAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a British national, born in 1925 and living in Cork, Ireland. He is represented before the Court by Mr O’Sullivan, a lawyer practising in Cork, Ireland.
A.
The applicant is a medical doctor. In July 1995 the Medical Council (“the Council”) was informed of a number of complaints against the applicant by two female patients. In August 1995 the police informed the Council that they were investigating allegations of indecent assault by the applicant. On 5 October 1995 the Council received written complaints from the two patients to which the information of July 1995 referred. The complaints included allegations of sexual assault and blackmail.
On 19 October 1995 the Fitness to Practice Committee (“the Committee”) of the Council decided that there was a prima facie case for the holding of an inquiry. On 27 October 1995 the High Court made an order restraining the applicant from practising medicine pending the outcome of the proposed inquiry. That order was not published. However, a further order of the High Court dated 6 November 1995, removed the applicant’s name from the register of practitioner’s and restrained him from practising medicine pending the inquiry and all consequent proceedings. The High Court also agreed that the Council could make public the “sequence of events” including the orders of 27 October and 6 November 1995. The Council issued a press release on the same day which included the applicant’s name, the terms of those two High Court orders and details as to how an individual can complain to the Council about a medical practitioner. Further complaints were then received from former female patients of the applicant. The applicant also claims that the chairperson of the Committee also made public statements about the case and that newspaper articles appeared which could only have emanated from the Council.
On 11 November 1996 the oral hearing before the Committee commenced. The applicant applied to have the inquiry held in public, stating that he wished to redress the damage done to his reputation by the publicity to which the case had already been subject. In exercising its discretion on the subject, the inquiry considered, inter alia, the necessity to ensure that members of the public could freely and without repercussions make complaints regarding their medical practitioners; the necessity to protect the confidentiality of the doctor/patient relationship; the nature of the allegations made; the likely affect on the administration of justice of a hearing in public; the powers of the Committee to protect the private lives of individuals even if the inquiry was held in public; the protection against bias offered by a public hearing and the guarantees offered to the practitioner by the appeal to the High Court. The Committee found that the principles of natural justice and fair procedures required the inquiry to be held in private.
The applicant sought leave to apply to the High Court by way of an application for judicial review for an order of certiorari quashing the above decision of the Committee. The High Court refused leave. On 13 December 1996 the Supreme Court gave leave to so apply to the High Court on two grounds. In the first place, to inquire whether the Committee was entitled to rule that the whole of the inquiry be held in private, the applicant arguing that this was contrary to the Medical Practitioners Act 1978 (“the 1978 Act”), to the Constitution and to Article 6 of the Convention. Secondly, to enquire as to whether the proceedings were prosecuted, and the decision (that the inquiry was to be held in private) was made, in circumstances which were inconsistent with the objective separation of the functions of prosecutor and adjudicating tribunal. Included in this latter ground, were the propositions that the proceedings before the Committee were unfair and that the Committee’s impartiality had been compromised.
On 11 February 1997 the High Court rejected the application and awarded costs against the applicant. The High Court noted in its judgment that, when it considers decisions of the Council brought before it, it was not exercising an appellate jurisdiction as the High Court will “hear all the evidence as if it was a court sitting at first instance”. The Supreme Court rejected the applicant’s appeal by judgment dated 16 December 1997 and costs were awarded against the applicant. In its judgment, that court noted that only the High Court can decide to remove a practitioner’s name from the register and that the applicant would be “entitled to a full rehearing and possibly to a rehearing in public” if and when the Council’s decision was brought before the High Court, the Supreme Court adding that when the procedure has been exhausted in the Committee, in the Council and in the High Court, a final appeal would lie to the Supreme Court, but it was not the function of the Supreme Court to monitor the proceedings as they unfolded. Costs were awarded against the applicant.
The proceedings against the applicant under the 1978 Act have not yet terminated and have been adjourned pending the determination of criminal proceedings against him.
B. Relevant domestic law and practice
The Medical Practitioners Act 1978 established the Council and provided for the establishment of the Committee. It is the Committee which decides whether it is necessary to hold an inquiry into the conduct of a registered medical practitioner. If the Council is satisfied that it is in the public interest to do so, it may apply to the High Court for an order that the registration of any practitioner shall not have effect pending that inquiry. On completion of the inquiry, the Committee reports to the Council. Where it is found that the practitioner has committed acts of professional misconduct or is unfit to engage in the practise of medicine by reason of an alleged physical or mental disability, the Council may decide that that person’s name be erased from the register, that his or her registration be suspended for a certain period of time or that certain conditions be attached to the retention in the register of that person.
In any of the above cases, the practitioner in question can apply to the High Court to cancel the decision of the Council and that court may either cancel the Council’s decision, direct the erasure or suspension of the practitioner’s registration or attach such conditions to retention of the practitioner’s name on the register as it thinks fit. In the absence of such an application by the practitioner, the Council may apply to the High Court for confirmation of its decision. In such circumstances, and unless it sees good reasons to the contrary, the High Court shall confirm the decision of the Council. A High Court hearing on such an application by a practitioner is conducted as an entire trial of the issues involved and is not a mere appeal from the combined decisions of the Committee and the Council. The hearing, save in exceptional circumstances, is in public and the onus of proof lies on the Council.
Accordingly, the Committee’s findings have no legal effect on the practitioner’s right to practice and the Council’s decision has no legal effect until confirmed by the High Court, which court may cancel the decision of the Council or vary it.


ITEMID: 001-58091
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF PIZZI v. ITALY
IMPORTANCE: 4
CONCLUSION: Art. 6 inapplicable
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 7. Mr Antonio Pizzi, a civil servant employed by the Calabria Regional Council, lives in Reggio di Calabria.
8. On 18 May 1982 he applied to the Calabria Regional Administrative Court (“the RAC”) for judicial review of a decision of the Regional Council (Consiglio Regionale) assigning him, at the time when he was recruited to a permanent post, to a staff category lower than the one to which he considered himself to be entitled on the basis of the duties he had performed during the period when he had been employed on a fixed-term contract.
9. On 12 June 1982 the applicant asked for a date to be fixed for the hearing and for his case to be dealt with speedily.
10. According to information supplied by the applicant, on 28 October 1996, the proceedings were then still pending.


ITEMID: 001-109144
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KHANHUSEYN ALIYEV v. AZERBAIJAN
IMPORTANCE: 3
CONCLUSION: Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Free expression of opinion of people;Stand for election);Non-pecuniary damage - award
JUDGES: Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1958 and lives in Baku.
6. The applicant stood for the elections to the National Assembly of 6 November 2005 as a candidate of the opposition bloc YeS (Yeni Siyasət). He was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the single-member HajiqabulKurdamir Electoral Constituency no. 58.
7. On 24 October 2005 the ConEC decided to apply to the Court of Appeal with a request to cancel the applicant’s registration as a candidate owing to the reports of his alleged involvement in activities incompatible with the requirements of the Electoral Code. According to the minutes of the ConEC meeting, seven members of the ConEC participated in the meeting. The applicant was not informed about this meeting in advance and was not invited to it. In support of its decision, the ConEC relied on three grounds, summarised below.
8. Firstly, the ConEC noted that it had received written statements from four voters claiming that the applicant had either promised or given them money in exchange for their promise to vote for him. Two of them claimed that they had each received 100,000 old Azerbaijani manats (at that time, a sum equivalent to slightly less than 20 euros) in cash from the applicant and, as a proof of this claim, handed in this cash to the ConEC. None of these voters were heard in person by the ConEC. The ConEC considered that such actions by the applicant were contrary to Article 88.4.1-5 of the Electoral Code concerning the illegal means of gaining voter support.
9. Secondly, relying on unspecified reports, the ConEC noted that the applicant had made public statements “against the constitutional foundations of the State” by advocating for the return to power of the Chairman of the Social Democratic Party and former President A. Mutalibov (who had been in exile for several years).
10. Thirdly, the ConEC noted that on 24 October 2005 the applicant was planning to organise a demonstration in front of the ConEC building in order to protest against the cancellation of the registration of another candidate from the same constituency, which had taken place earlier.
11. On 26 October 2005 the Court of Appeal examined the case and cancelled the applicant’s registration as a candidate, in accordance with Articles 88.4 and 113.2.3 of the Electoral Code. During the hearing, the applicant denied all the accusations and argued that the case had been fabricated and that the allegations of bribery had not been proven. Having regard to the ConEC’s submissions, the written statements of the four voters, and several banknotes sealed in plastic bags (as “material evidence”), the Court of Appeal found that the applicant had offered money to voters in exchange for their votes in his favour, thus breaching Article 88.4 of the Electoral Code. It appears that the court considered that this was a sufficient ground for the cancellation of the applicant’s registration and did not examine the other two grounds mentioned in the ConEC’s request.
12. According to the applicant, four members of the ConEC (two of whom had allegedly participated in the meeting of 24 October 2005) wrote affidavits, addressed to the Court of Appeal, in which they claimed that the alleged ConEC meeting of 24 October 2005 had actually not taken place and that the minutes of that meeting, submitted to the Court of Appeal, constituted a false document. These affidavits were not accepted by the Court of Appeal because they had not been notarised. Subsequently, three of the above ConEC members wrote similar notarised affidavits addressed to the Supreme Court, while one of them retracted his earlier statement.
13. According to the Government, on 26 October 2005 one of the abovementioned ConEC members, S.Q., wrote another affidavit in which he retracted his previous statement and maintained that he had been forced by the applicant and his representatives to write a statement that there had been no ConEC meeting.
14. The applicant lodged an appeal with the Supreme Court, arguing that the allegations against him had been fabricated and that the evidence used against him had been tenuous, uncorroborated and wrongly assessed. In support of his submissions he attached, inter alia, the above-mentioned affidavits by the ConEC members.
15. On 2 November 2005 the Supreme Court dismissed the applicant’s appeal and upheld the Court of Appeal’s judgment of 26 October 2005. It refused to admit the documents submitted by the applicant, finding
16. Article 88.4 of the Electoral Code of 2003 provides as follows:
“88.4. Candidates ... are prohibited from gaining the support of voters in the following ways:
88.4.1. giving money, gifts and other valuable items to voters (except for badges, stickers, posters and other campaign materials having nominal value), except for the purposes of organisational work;
88.4.2. giving or promising rewards based on the voting results to voters who were involved in organisational work;
88.4.3. selling goods on privileged terms or providing goods free of charge (except for printed material);
88.4.4. providing services free of charge or on privileged terms;
88.4.5. influencing the voters during the pre-election campaign by promising them securities, money or other material benefits, or providing services that are contrary to the law.”
17. In accordance with Articles 113.1 and 113.2.3 of the Electoral Code, the relevant electoral commission may request a court to cancel the registration of a candidate who engages in activities prohibited by Article 88.4 of the Code.
18. Complaints concerning decisions of electoral commissions must be examined by the courts within three days (unless the Electoral Code provides for a shorter period). The period for lodging an appeal against a court decision is also three days (Article 112.11).
19. Chapter 25 of the Code of Civil Procedure sets out rules for the examination of applications concerning the protection of electoral rights (or the right to participate in a referendum). According to Article 290, such applications must be submitted directly to the appellate courts in accordance with the procedure established by the Electoral Code.
20. Applications concerning the protection of electoral (referendum) rights must be examined within three days of receipt of the application, except for applications submitted on election day or the day after election day, which must be examined immediately (Article 291.1). The court must hear the case in the presence of the applicant, a representative of the relevant electoral commission and any other interested parties. Failure by any of these parties to attend the hearing after due notification does not preclude the court from examining and deciding the case (Article 291.2).
21. The appellate court’s decision can be appealed against to the higher court (the court of cassation) within three days. This appeal must be examined within three days, or immediately if submitted on election day or the next day. The decision of the court of cassation is final (Article 292).
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-3


ITEMID: 001-79666
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ERDOĞAN YAĞIZ v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objection allowed (six month period);Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Not necessary to examine Art. 8;Remainder inadmissible;Pecuniary damage and non-pecuniary damage - financial award (global);Costs and expenses partial award - Convention proceedings
JUDGES: András Baka;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Mindia Ugrekhelidze
TEXT: 4. The applicant was born in 1954 and lives in Istanbul.
5. On 26 November 1999 Ms S.D. lodged a criminal complaint against S.Ç. and G.D., alleging threatening behaviour. She apparently stated that “a certain Erdoğan, chief of police” had protected the two men.
6. On 5 February 2000, at about 5 p.m., the applicant, who had been employed as a doctor by the Istanbul police for fifteen years, received a telephone call from his supervisor, who asked him to come to the office. As he got out of his car in the car park outside the building, the applicant was stopped by three police officers. In front of the members of the public in the courtyard, he was handcuffed and informed that he was under arrest. In the course of his arrest, the applicant told the officers that he was an official police doctor and that there must have been a mistake. He begged them not to handcuff him in front of hundreds of people. He was taken into police custody in the organised crime and arms-trafficking branch.
7. Later that day, without having informed him of the accusations against him, the police took the applicant in handcuffs to his workplace and home, where they carried out searches. It appears that he again asked for the handcuffs to be removed so that his children and neighbours would not see him being restrained. He even suggested that the officers go to his home after sunset so that he would not be exposed to public view. The police officers refused and, moreover, forced him to walk 70 metres along the road before arriving at his home. During the search he was allegedly insulted in front of his family. The police also seized his official weapon.
8. The applicant further maintained that he had signed the records of the searches while in handcuffs, before being escorted back to the police headquarters. He was made to sit on a chair, blindfolded and still in handcuffs, throughout his time in police custody. As the chair was by the entrance to the toilets, he was jostled whenever anyone came past. He heard staff from the headquarters ask why their doctor was in police custody. He refused to drink or eat.
9. On 7 February 2000 a statement was taken from him by the police although he had not been informed of the accusations against him.
...
10. On 5, 6 and 7 February 2000 the applicant was examined by a forensic specialist. The subsequent medical reports did not mention any signs of assault. They stated that he was cooperative and lucid, that his faculties had not been impaired and that he had not reported any particular grievances.
11. On 8 February 2000 the applicant was taken to the Bakırköy public prosecutor's office; he was later released without being brought before the prosecutor.
12. On 10 February 2000 he was examined by a psychiatrist, who certified him unfit for work for twenty days on account of psychiatric trauma. His sick-leave was extended several times on account of acute depression.
13. On 15 February 2000 the applicant lodged a very detailed complaint with the Istanbul Criminal Court concerning his detention in police custody, setting out the circumstances in which he had been arrested, detained and released after three days without any explanation. He asked the court to inform him why he had been taken into police custody.
14. Later that day the court replied that he had been questioned in connection with criminal investigation no. 2000/102 because of his relations with suspects.
15. On 16 February 2000 the applicant was informed that he was to be suspended until the end of the criminal investigation on account of his relations with persons who had already been convicted of blackmail, looting and false imprisonment as members of an organised gang.
16. On 19 February 2000 the factory which employed him as a doctor under an individual contract – a post he had found in the private sector – dismissed him, criticising him for his lack of care and attention towards the staff. The letter of dismissal also mentioned that he was undergoing psychiatric treatment.
17. In an order of 1 March 2000 the Criminal Court ruled that the applicant's official weapon should be returned to him in the absence of any offence or indictment.
18. On 9 March 2000 the public prosecutor's office discontinued the case against the applicant.
19. On 12 July 2000, the applicant was reinstated in his post at the police headquarters. However, as he was unable to work in the same department on account of aggravated psychosomatic symptoms, he remained on sick-leave until 3 January 2002, when he was admitted to hospital.
20. On 28 February 2002 he was ordered to take early retirement on health grounds, the diagnosis being “persecution-type hallucination with serious depression”. He was subsequently admitted to the neuropsychiatry department of Bakırköy University Hospital on several occasions for psychiatric treatment.
21. On 9 January 2001 the applicant lodged a complaint with the Fatih public prosecutor's office against five police officers, H.Ö., A.A., B.K., Z.G. and A.S., alleging that they had abused their authority and ill-treated him with a view to obtaining a confession. He gave a detailed explanation of how he had been handcuffed without being informed of the accusations against him and insulted in front of his family and police personnel, and of all the forms of humiliation he had suffered without knowing why.
22. The public prosecutor's office asked the Istanbul Provincial Administrative Council (İl İdare Kurulu) for leave to open an investigation.
23. On 6 June 2001 the Administrative Council refused leave to open a judicial investigation on the ground that no fault was attributable to the police officers.
24. On 27 July 2001 the applicant lodged an objection with the Istanbul Administrative Court.
25. In a judgment of 21 November 2001 the Administrative Court dismissed the objection.
26. On 12 December 2001 the public prosecutor's office discontinued the proceedings on the basis of the Administrative Council's decision.
27. On 15 January 2002 the applicant appealed against the judgment to the Istanbul Assize Court.
28. On 20 March 2002 the Assize Court dismissed the appeal.
...
VIOLATED_ARTICLES: 3