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You are here: BAILII >> Databases >> European Court of Human Rights >> BORGESE v. ITALY - 12870/87 [1992] ECHR 4 (26 February 1992) URL: http://www.bailii.org/eu/cases/ECHR/1992/4.html Cite as: [1992] ECHR 4

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In the case of Borgese v. Italy*,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention")** and the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr Thór Vilhjálmsson,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr B. Walsh,

Mr C. Russo,

Mr A. Spielmann,

Mr N. Valticos,

Mr S.K. Martens,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 28 October 1991 and

24 January 1992,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 29/1991/281/352. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating

applications to the Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came

into force on 1 January 1990.

_______________

PROCEDURE

1. The case was referred to the Court on 8 March 1991 by the

European Commission of Human Rights ("the Commission"), within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 12870/87) against the Italian Republic lodged with

the Commission under Article 25 (art. 25) by an Italian national,

Mr Michelangelo Borgese, on 15 April 1987.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Italy recognised

the compulsory jurisdiction of the Court (Article 46) (art. 46).

The object of the request was to obtain a decision as to whether the

facts of the case disclosed a breach by the respondent State of its

obligations under Article 6 para. 1 (art. 6-1).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that

he wished to take part in the proceedings and designated the lawyer

who would represent him (Rule 30).

3. On 23 April 1991 the President of the Court decided that,

pursuant to Rule 21 para. 6 and in the interests of the proper

administration of justice, this case and the cases of Gilberti,

Nonnis, Trotto, Nibbio, Biondi, Macaluso, Monaco, Cattivera, Seri,

Manunza, Gori, Casadio, Testa, Lestini, Covitti, Zonetti, Simonetti

and Dal Sasso* should be heard by the same Chamber.

_______________

* Cases nos. 19/1991/271/342; 23/1991/275/346; 26/1991/278/349;

28/1991/280/351; 30/1991/282/353 to 32/1991/284/355;

34/1991/286/357; 35/1991/287/358; 37/1991/289/360; 45/1991/297/368;

52/1991/304/375 to 57/1991/309/380; 60/1991/312/383

_______________

4. The Chamber to be constituted for this purpose included ex

officio Mr C. Russo, the elected judge of Italian nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On the same day, in

the presence of the Registrar, the President drew by lot the names

of the other seven members, namely Mr Thór Vilhjálmsson,

Mr F. Matscher, Mr J. Pinheiro Farinha, Mr L.-E. Pettiti,

Mr B. Walsh, Mr N. Valticos and Mr S.K. Martens (Article 43 in fine

of the Convention and Rule 21 para. 4) (art. 43).

Subsequently, Mr A. Spielmann, substitute judge, replaced

Mr Pinheiro Farinha, who had resigned and whose successor at the

Court had taken up his duties before the hearing (Rules 2 para. 3

and 22 para. 1).

5. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Deputy Registrar, consulted the

Agent of the Italian Government ("the Government"), the Delegate of

the Commission and the applicant's lawyer on the organisation of the

proceedings (Rules 37 para. 1 and 38). Pursuant to the order made

in consequence, the Registrar received the Government's memorial on

17 July 1991 and the applicant's memorial on 25 July. By a letter

received on 22 September, the Secretary to the Commission informed

the Registrar that the Delegate would submit oral observations.

6. On 29 August the Commission had produced the file on the

proceedings before it, as requested by the Registrar on the

President's instructions.

7. In accordance with the decision of the President - who had

given the applicant leave to use the Italian language

(Rule 27 para. 3) -, the hearing took place in public in the Human

Rights Building, Strasbourg, on 28 October 1991. The Court had held

a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr G. Raimondi, magistrato,

seconded to the Diplomatic Legal

Service of the Ministry of Foreign Affairs, Co-Agent,

Mr G. Manzo, magistrato,

seconded to the Ministry of Justice,

Mrs A. Passannanti, magistrato,

seconded to the Ministry of Justice, Counsel;

(b) for the Commission

Mr J.A. Frowein, Delegate;

(c) for the applicant

Mr G. Angelozzi, avvocato, Counsel,

Mr M. de Stefano, avvocato, Adviser.

The Court heard addresses by Mr Raimondi and Mr Manzo for the

Government, by Mr Frowein for the Commission and by Mr Angelozzi and

Mr de Stefano for the applicant, as well as their answers to its

question.

8. On 14 October the Government had lodged their observations

on the applicant's claims for just satisfaction (Article 50 of the

Convention) (art. 50); on 5 November the Commission filed its

observations on those claims.

AS TO THE FACTS

9. Mr Michelangelo Borgese is an Italian national and resides in

Rome. He is unemployed. The facts established by the Commission

pursuant to Article 31 para. 1 (art. 31-1) of the Convention are as

follows (paragraphs 16-20 of its report):

"16. On 4 September 1984 the applicant took proceedings before

the Rome magistrate's court (pretore) against the Istituto Nazionale

della Previdenza Sociale (INPS) to establish his entitlement to a

disability pension.

17. The investigation commenced at the hearing of

13 November 1984, on which date the magistrate's court called for a

medical report. The hearing of 19 December 1984 was postponed owing

to a strike by lawyers. At the hearing on 9 January 1985 the expert

appointed was sworn in. On 13 February 1985 the medical report was

lodged with the registry.

18. Two further hearings took place on 6 March and

17 April 1985. Subsequently, at the close of the hearing

on 22 May 1985, the magistrate's court ordered the INPS to pay the

pension claimed and the arrears as from 1 November 1983. The text

of the decision was lodged with the registry on 22 May 1985.

19. On 5 November 1985 the INPS appealed against the above

decision and on 12 November 1985 the presiding judge of the Rome

District Court fixed the hearing before the appropriate chamber of

the court for 17 September 1987.

20. On that date, the court ordered a further medical report.

At the close of the hearing on 12 April 1988, the District Court

found that the applicant qualified for the pension as from

31 December 1984, and dismissed the appeal by the INPS for the

remainder. The text of the decision was lodged with the registry on

6 July 1988.

21. ... ."

10. According to the information supplied to the European Court

by the applicant, the District Court's judgment became final on

6 July 1989, there having been no appeal to the Court of Cassation.

PROCEEDINGS BEFORE THE COMMISSION

11. Mr Borgese lodged his application with the Commission on

15 April 1987. He complained of the length of the civil proceedings

brought by him and relied on Article 6 para. 1 (art. 6-1) of the

Convention.

12. On 11 May 1990 the Commission declared the application

(no. 12870/87) admissible. In its report of 15 January 1991

(Article 31) (art. 31), it expressed the unanimous opinion that

there had been a violation of Article 6 para. 1 (art. 6-1). The

full text of the Commission's opinion is reproduced as an annex to

this judgment*.

________________

* Note by the Registrar: for practical reasons this annex will

appear only with the printed version of the judgment (volume 228-B

of Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

13. At the hearing the Government confirmed the submission put

forward in their memorial, in which they requested the Court to hold

"that there [had] been no violation of the Convention in the present

case".

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)

14. The applicant claimed that his civil action had not been

tried within a "reasonable time" as required under Article 6 para. 1

(art. 6-1) of the Convention, according to which:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing within a reasonable time by

[a] ... tribunal ..."

The Government disputed this view, whereas the Commission accepted

it.

15. The period to be taken into consideration began on

4 September 1984 when the proceedings were instituted against the

INPS in the magistrate's court. It ended on 6 July 1989 when the

Rome District Court's judgment became final (see the Pugliese (II)

v. Italy judgment of 24 May 1991, Series A no. 206-A, p. 8,

para. 16).

16. The reasonableness of the length of proceedings is to be

assessed with reference to the criteria laid down in the Court's

case-law and in the light of the circumstances of the case, which in

this instance call for an overall assessment.

17. The Government referred to the complexity of the facts and

the inaction of the applicant, who had never requested that the

hearings be held at shorter intervals. They also invoked the

excessive workload of the relevant courts and the latter's duty in

principle to deal with cases in the order in which they were

registered.

According to the applicant, the case was a simple one and his own

conduct could have had only a negligible effect.

18. The Court stresses that special diligence is necessary in

employment disputes, which include pensions disputes (see, inter

alia, mutatis mutandis, the Vocaturo v. Italy judgment of

24 May 1991, Series A no. 206-C, p. 32, para. 17). Italy moreover

acknowledged this by amending, in 1973, the special procedure laid

down in this field and by introducing, in 1990, emergency measures

intended to speed up the conduct of such proceedings.

The Government pleaded the backlog of cases in the relevant courts,

but Article 6 para. 1 (art. 6-1) imposes on the Contracting States

the duty to organise their legal systems in such a way that their

courts can meet each of its requirements (see the same judgment,

ibid.).

This case did not give rise to any complex question of fact or law.

Moreover the proceedings were conducted at a normal pace in the

magistrate's court. Furthermore, the applicant would appear to have

delayed serving on the INPS the decision of 22 May 1985 so that the

State cannot be held responsible for the five and a half months

which elapsed before the appeal was filed on 5 November 1985; nor is

it answerable for the year which went by before the judgment of

12 April 1988 became final.

On the other hand, the appeal proceedings remained dormant for more

than twenty-two months. On 12 November 1985 the President of the

Rome District Court set down the first hearing before the competent

chamber for 17 September 1987, on which date the chamber called for

a further medical opinion; it does not appear from the evidence that

other investigative measures were taken prior to that.

19. Accordingly and in view of what was at stake in the

proceedings for Mr Borgese, the Court cannot regard as "reasonable"

the lapse of time in the present case.

There has therefore been a violation of Article 6 para. 1

(art. 6-1).

II. APPLICATION OF ARTICLE 50 (art. 50)

20. According to Article 50 (art. 50):

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising

from the ... Convention, and if the internal law of the said Party

allows only partial reparation to be made for the consequences of

this decision or measure, the decision of the Court shall, if

necessary, afford just satisfaction to the injured party."

A. Damage

21. The applicant claimed in the first place 8,000,000 Italian

lire for damage.

In the Government's contention, he sustained no pecuniary damage; he

had moreover secured an order that his disability pension be paid to

him with effect from 31 December 1984. As to non-pecuniary damage,

a finding of a violation would constitute sufficient just

satisfaction.

22. There is no evidence that the violation found caused

Mr Borgese pecuniary damage. On the other hand, he must have

suffered a degree of non-pecuniary damage for which the Court,

making an assessment on an equitable basis, awards him

3,000,000 lire.

B. Costs and expenses

23. The applicant also sought 3,000,000 lire for costs and

expenses incurred before the Convention organs.

Having regard to the evidence at its disposal and to its case-law in

this field, the Court awards him 2,000,000 lire under this head.

C. Interest

24. Mr Borgese requested finally that interest be paid on the

sums awarded, at the statutory rate in force in his country and in

respect of the period running from the delivery of the present

judgment to the payment of such sums by the national authorities.

The Commission invited the Court to fix for the Government - who did

not give their opinion - a compulsory time-limit for executing the

judgment and to make provision for the payment of interest in the

event of their failure to comply therewith.

25. The first of these proposals is in conformity with a

practice followed by the Court since October 1991.

As to the second, the Court does not consider it appropriate to

require any payment of interest in this instance.

FOR THESE REASONS, THE COURT

1. Holds by five votes to four that there has been a violation

of Article 6 para. 1 (art. 6-1);

2. Holds unanimously that the respondent State is to pay to the

applicant, within three months, 3,000,000 (three million) Italian

lire for non-pecuniary damage and 2,000,000 (two million) lire for

costs and expenses;

3. Dismisses unanimously the remainder of the claim for just

satisfaction.

Done in English and in French, and delivered at a public hearing in

the Human Rights Building, Strasbourg, on 26 February 1992.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the Convention

and Rule 53 para. 2 of the Rules of Court, the dissenting opinion of

Mr Thór Vilhjálmsson, Mr Pettiti, Mr Russo and Mr Valticos is

annexed to the present judgment.

Initialled: R. R.

Initialled: M.-A. E.

DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON, PETTITI,

RUSSO AND VALTICOS

(Translation)

We are unable to agree with the majority in this case because we do

not consider that the sum of the delays for which the State can be

held responsible amounts to an unreasonable time in this instance.