The applicants [Mrs Filomena Giacometti, Mrs Maria Mason, Mrs Daniela Mason, Mrs Giorgina Mason, Mrs Nadia Mason and Mrs Bertilla Mason] are Italian nationals. They were born in 1920, 1942, 1944, 1947, 1949 and 1955 respectively and live in the province of Venice. Before the Court they were represented by Mrs Bertilla Mason, the sixth applicant.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants inherited land situated in Spinea from Antonio Mason. In 1980 the municipality authorised the possession of the land in question under an expedited procedure, with a view to expropriating it. Physical possession of the land was taken on 21 October and 5 December 1980.
In 1981, under “temporary” legislation (Law no. 385 of 1980) which introduced exceptions to the Expropriation Law no. 2359 of 1865, the municipality of Spinea offered a down payment on the expropriation compensation subject to determining the final compensation once the Act establishing new criteria for compensating building land came into force.
That offer was accepted by the estate-owner and on 15 January, 14 May and 12 June 1981 the estate-owner signed three agreements for the transfer of the land (within the meaning of section 25 of Law no. 2359 of 1865), thus formalising the expropriation. Those agreements provided that once the new Law came into force and the final compensation was calculated, interest would be paid on the difference.
In a judgment of 15 July 1983 the Constitutional Court declared unconstitutional Law no. 385 of 1980 which made compensation subject to the passing of a future Act. That judgment had the effect of bringing back into force Law no. 2359 of 1865, which provided that expropriation compensation for building land should correspond to the market value of the land.
Subsequently the estate-owner unsuccessfully requested the municipality on several occasions to determine the final amount of compensation.
As the municipality of Spinea failed to take action, on 12 January 1991 the estate-owner brought proceedings against it in the Venice District Court seeking final expropriation compensation.
On 8 August 1992 Law no. 359 of 1992 came into force. It laid down new criteria for calculating expropriation compensation.
In a decision of 14 January 1993, deposited on 21 July 1993, the Venice District Court declared that it lacked jurisdiction to examine the application, which should, it ruled, be lodged with the Venice Court of Appeal.
On 25 January 1994 the estate-owner resumed the case in the Venice Court of Appeal.
In an order of 24 May 1994 the Court of Appeal stated that it would rule on the matter of its jurisidiction before appointing an expert.
On 19 June 1995 the estate-owner died.
On 20 June 1995 the Venice Court of Appeal held that it also lacked jurisdiction to examine the case and made an order referring it to the Court of Cassation for consideration of the issue as to which court had jurisdiction (regolamento di competenza).
On 30 September 1995 the town of Spinea declared itself insolvent (stato di dissesto) in accordance with Legislative Decree no. 77 of 25 February 1995.
On 17 April 1997 the applicants and another group of joint heirs were proposed a friendly settlement by the commissioner responsible for managing the town of Spinea’s finances. The proposal was refused.
On 10 May 1997 the commissioner responsible for managing the town of Spinea’s finances made a second offer of a friendly settlement in which he proposed to pay an aggregate sum to all the joint heirs of 936,000,000 Italian lire (ITL), namely ITL 22,223,540 for each of the applicants, in expropriation compensation. That amount did not include compensation for the length of the proceedings. Under the terms of this proposal the applicants were required to waive the pending proceedings and any claim connected with the expropriation of the land in question.
The applicants accepted that proposal on 13 May 1997. At that time the Court of Cassation had not yet determined the issue as to which court had jurisdiction.
However, the commissioner refused to follow up his proposal, given that the other group of joint heirs had refused the offer. On 16 July 1997 the applicants lodged an application with the Ministry of the Interior for payment of the amount proposed in the settlement.
In a decision of 20 October 1997 the Ministry of the Interior granted the applicants’ request.
On 23 April 1998 the sum in question (ITL 22,223,540 each) was paid to the applicants, less the 20% tax deductible under Law no. 413 of 1991.
B. Relevant domestic law
In passing Constitutional Amendment Act no. 2 of 23 November 1999, the Italian Parliament decided to include the principle of a fair trial in the Constitution itself. The relevant parts of Article 111 of the Constitution are now worded as follows:
“1. Jurisdiction shall be exercised through fair proceedings, conducted in accordance with the law.
2. All proceedings shall be conducted in compliance with the principles of adversarial process and equality of arms before a neutral and impartial court. The right to be tried within a reasonable time shall be guaranteed by law.”
In order to ensure the effective application at domestic level of the “reasonable-time” principle now enshrined in the Constitution, Parliament passed the Pinto Act on 24 March 2001. The relevant parts of the Act provide:
Section 2 (Entitlement to just satisfaction)
“1. Anyone sustaining pecuniary or non-pecuniary damage as a result of a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, on account of a failure to comply with the ‘reasonable-time’ requirement in Article 6 § 1 of the Convention, shall be entitled to just satisfaction.
2. In determining whether there has been a violation, the court shall have regard to the complexity of the case and, in the light thereof, the conduct of the parties and of the judge deciding procedural issues, and also the conduct of any authority required to participate in or contribute to the resolution of the case.
3. The court shall assess the quantum of damage in accordance with Article 2056 of the Civil Code and shall apply the following rules:
(a) only damage attributable to the period beyond the reasonable time referred to in subsection 1 may be taken into account;
(b) in addition to the payment of a sum of money, reparation for non-pecuniary damage shall be made by giving suitable publicity to the finding of a violation.”
Section 3 (Procedure)
“1. Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under Article 11 of the Code of Criminal Procedure to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending.
2. The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by Article 125 of the Code of Civil Procedure.
3. The application shall be made against the Minister of Justice where the alleged violation has taken place in proceedings in the ordinary courts, the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners. In all other cases, the application shall be made against the Prime Minister.
4. The court of appeal shall hear the application in accordance with Articles 737 et seq. of the Code of Civil Procedure. The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of State Counsel [Avvocatura dello Stato] at least fifteen days prior to the date of the hearing before the chamber.
5. The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in section 2 is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing. The parties may lodge memorials and documents up till five days before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties.
6. The court shall deliver a decision within four months after the application is lodged. An appeal shall lie to the Court of Cassation. The decision shall be enforceable immediately.
7. To the extent that resources permit, payment of compensation to those entitled shall commence on 1 January 2002.”
Section 4 (Time-limits and procedures for lodging applications)
“A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within six months from the date when the decision ending the proceedings becomes final. Claims lodged after that date shall be time-barred.”
Section 5 (Communications)
“If the court decides to allow an application, its decision shall be communicated by the registry to the parties, to State Counsel at the Court of Audit to enable him to start an investigation into liability, and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity.”
Section 6 (Transitional provisions)
“1. Within six months after the entry into force of this Act, anyone who has lodged an application with the European Court of Human Rights in due time complaining of a violation of the ‘reasonable-time’ requirement contained in Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, shall be entitled to lodge a claim under section 3 hereof provided that the application has not by then been declared admissible by the European Court. In such cases, the application to the court of appeal must state when the application to the said European Court was made.
2. The registry of the relevant court shall inform the Minister for Foreign Affairs without delay of any claim lodged in accordance with section 3 and within the period laid down in subsection 1 of this section.”
Section 7 (Financial provisions)
“1. The financial cost of implementing this Act, which is put at 12,705,000,000 lire from 2002, shall be met by releasing funds entered in the three-year budget 2001-2003 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.”
By a legislative decree of 12 October 2001, the six-month time-period allowed under section 6 of the Pinto Act was extended to 18 April 2002.
Relying on Article 6 § 1 of the Convention, the applicants complained of the length of the civil proceedings.
The applicants complained of the length of the civil proceedings. They relied on Article 6 § 1 of the Convention, the relevant parts of which provide:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government submitted that the applicants had not exhausted domestic remedies under Article 35 § 1 of the Convention given that the Pinto Act had come into force.
The applicants contended that this remedy was optional rather than compulsory since the term used in section 6 of the Act was “entitled” and not “must”. They relied on the tempus regit actum principle to dispute the retroactive application of the Act.
The Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system (ibid). In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Akdivar and Others v. Turkey, 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 65, and Aksoy v. Turkey, 18 December 1996, Reports 1996-VI, p. 2275, § 51).
Nevertheless, the only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, in particular, Akdivar and Others, cited above, p. 1210, § 66, and Dalia v. France, 19 February 1998, Reports 1998-I, pp. 87-88, § 38). In addition, according to the “generally recognised principles of international law”, there may be special circumstances which absolve the applicants from the obligation to exhaust the domestic remedies at their disposal (see Selmouni, cited above, § 75). However, the Court points out that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Akdivar and Others, cited above, p. 1212, § 71, and Van Oosterwijck v. Belgium, 6 November 1980, Series A no. 40, p. 18, § 37; see also Koltsidas, Fountis, Androutsos and Others v. Greece, applications nos. 24962/94, 25370/94 and 26303/95 (joined), Commission decision of 1 July 1996, Decisions and Reports 86-A, p. 83, at p. 93).
In the instant case the Court observes at the outset that the applicants are entitled to rely on the transitional provision in section 6 of the Pinto Act. The remedy of an application to the Court of Appeal is therefore available to them.
It further notes that one of the aims of the Pinto Act is to ensure the effective application at domestic level of the “reasonable-time” principle enshrined in the Italian Constitution following the revision of Article 111. Furthermore, as the Court observed in Kudła v. Poland ([GC], 26 October 2000, § 152, ECHR 2000-XI), the right to a hearing within a reasonable time will be less effective if there is no opportunity to submit Convention claims to a national authority first. It should also be pointed out that in Kudła the Court held that there had been a violation of Article 13 of the Convention in that no remedy was available in Polish law to enable the applicant to enforce his right to a “hearing within a reasonable time” (see Kudła, cited above, §§ 132-160).
As regards the effectiveness of the remedy available in the instant case, it should be noted that under the Pinto Act, anyone who is a party to judicial proceedings falling within the ambit of Article 6 § 1 of the Convention may lodge an application with a view to obtaining a finding of an infringement of the “reasonable-time” principle and, where appropriate, may be awarded just satisfaction for any pecuniary and non-pecuniary damage sustained. Furthermore, as is evident from section 2(2) of the Act, in assessing the reasonableness of the length of proceedings the national courts are required to apply the criteria established by the Court’s case-law, namely the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II, and Philis v. Greece (no. 2), 27 June 1997, Reports 1997-IV, p. 1083, § 35). That being so, the Court considers that there is no reason to believe that the remedy provided by the Pinto Act would not afford the applicants the opportunity to obtain redress for their grievance or that it would have no reasonable prospect of success (see Brusco v. Italy (dec.), no. 69789/01, to be published in ECHR 2001).
It is true that the present application was lodged before the Pinto Act had come into force and that, consequently, at the time when the applicants first referred their complaint to the Court in Strasbourg, they did not have an effective remedy available in Italian law in respect of the length of the proceedings in issue.
In this connection, the Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it. However, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Baumann v. France, no. 33592/96, § 47, 22 May 2001, unreported).
The Court considers that many factors in the instant case justify a departure from the general principle that the exhaustion requirement must be assessed with reference to the time at which the application was lodged.
It observes, in particular, that the growing frequency with which it has found violations by the Italian State of the “reasonable-time” requirement has led it to conclude that the accumulation of such breaches constitutes a practice that is incompatible with the Convention, and to draw the Government’s attention to the “important danger” that “excessive delays in the administration of justice” represent for the rule of law (see Bottazzi v. Italy [GC], no. 34884/97, § 22, ECHR 1999-V, and Di Mauro v. Italy [GC], no. 34256/96, § 23, ECHR 1999-V). It has also held that the lack of an effective remedy in respect of the excessive length of proceedings has forced individuals to apply systematically to the Court in Strasbourg when their complaints might have been dealt with more appropriately, in the first place, by the Italian legal system. In the long term, that situation is likely to affect the operation, at both national and international level, of the system of human-rights protection set up by the Convention (see, mutatis mutandis, Kudła, cited above, § 155).
The purpose of the remedy introduced by the Pinto Act is to enable the authorities of the respondent State to redress breaches of the “reasonable-time” requirement and, consequently, to reduce the number of applications for the Court to consider. That is true not only of applications lodged after the date on which the Act came into force, but also of those which were already on the Court’s list of cases by that date.
In this connection, particular importance should be attached to the fact that the transitional provision in section 6 of the Pinto Act refers explicitly to applications already lodged with the Court in Strasbourg and is therefore designed to bring within the jurisdiction of the national courts all applications currently pending before the Court that have not yet been declared admissible. The provision in question affords Italian litigants a genuine opportunity to obtain redress for their grievances at national level; in principle, it is for them to avail themselves of that opportunity.
In the light of the foregoing, the Court considers that the applicants were required by Article 35 § 1 of the Convention to lodge a claim with the Court of Appeal under sections 3 and 6 of the Pinto Act. Furthermore, there do not appear to be any exceptional circumstances capable of exempting them from the obligation to exhaust domestic remedies.
It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the remainder of the application inadmissible.
Erik Fribergh Christos Rozakis
GIACOMETTI AND OTHERS v. ITALY DECISION
GIACOMETTI AND OTHERS v. ITALY DECISION