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You are here: BAILII >> Databases >> European Court of Human Rights >> VENDITTELLI v. ITALY - 14804/89 [1994] ECHR 23 (18 July 1994) URL: http://www.bailii.org/eu/cases/ECHR/1994/23.html Cite as: [1994] ECHR 23, 19 EHRR 464, (1995) 19 EHRR 464

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In the case of Vendittelli 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 L.-E. Pettiti,

Mr B. Walsh,

Mr C. Russo,

Mr A. Spielmann,

Mrs E. Palm,

Mr A.N. Loizou,

Mr G. Mifsud Bonnici,

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

Registrar,

Having deliberated in private on 24 February and

21 June 1994,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

* Note by the Registrar. The case is numbered 24/1993/419/498.

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.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 12 July 1993,

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. 14804/89) against the Italian Republic

lodged with the Commission under Article 25 (art. 25) by an

Italian national, Mr Manlio Vendittelli, on 11 January 1989.

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) of the Convention and Article 1 of Protocol No. 1

(P1-1).

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. The Chamber to be constituted 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 25 August 1993,

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

names of the other seven members, namely Mr Thór Vilhjálmsson,

Mr L.-E. Pettiti, Mr A. Spielmann, Mr J. De Meyer, Mrs E. Palm,

Mr A.N. Loizou and Mr G. Mifsud Bonnici (Article 43 in fine of

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

Mr B. Walsh, substitute judge, replaced Mr De Meyer, who was

unable to take part in the further consideration of the case

(Rules 22 para. 1 and 24 para. 1).

4. As President of the Chamber (Rule 21 para. 5),

Mr Ryssdal, acting through the Registrar, consulted the Agent of

the Italian Government ("the Government"), the applicant's lawyer

and the Delegate of the Commission 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 8 December 1993. In a letter of 7 October 1993 the

applicant's lawyer had said that he would not be filing a

memorial. The Delegate of the Commission did not make any

observations in writing.

5. On 10 November 1993 the Commission produced the file on

the proceedings before it, as requested by the Registrar on the

President's instructions.

6. 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 21 February 1994. The Court had

held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr G. Raimondi, magistrato, on secondment

to the Diplomatic Legal Service,

Ministry of Foreign Affairs Co-Agent,

Mr E. Selvaggi, Director of Human Rights,

Department of Criminal Affairs,

Ministry of Justice, Counsel;

(b) for the Commission

Mr S. Trechsel, Delegate;

(c) for the applicant

Mr A. Sinagra, avvocato, Counsel.

The Court heard addresses by them and also replies to its

questions.

7. In letters of 10 and 14 March 1994 the Government

provided additional information.

AS TO THE FACTS

8. Mr Manlio Vendittelli, an architect, lives in Rome.

9. On 19 May 1986 the Rome municipal police (vigili urbani)

sealed his flat, on the ground that he had infringed the

town-planning regulations.

10. On 20 May 1986 the Rome magistrate (pretore) confirmed

the sequestration (sequestro) and criminal proceedings were

instituted against the applicant. Mr Vendittelli lodged three

applications for release of his property from sequestration on

30 May 1986 and 5 and 26 June 1987 but they were dismissed on

12 June 1986 and 9 July 1987 for reasons of prevention and of

preservation of evidence (per fini preventivi e cautelari).

11. On 25 July 1987 the applicant sought an early hearing,

pointing to the damage caused him by his being unable to enjoy

the benefit of his property. The trial was initially set down

for 17 November 1987 but was postponed to 15 December 1987.

In a judgment delivered the same day, which was filed in

the registry on 30 December 1987 and notified on 1 December 1988,

the magistrate imposed on Mr Vendittelli, who was present when

the judgment was delivered, a suspended sentence of twenty days'

imprisonment and a fine of ten million lire, without any entry

in the criminal records, for having carried out works in his flat

without a permit from the mayor (concessione edilizia).

12. The applicant appealed against this decision within three

days of its delivery and filed his pleadings on 10 December 1988;

the twenty-day period allowed for filing grounds of appeal began

to run on the day of service of the judgment. The hearing in the

Rome Court of Appeal began on 2 May 1989. It was adjourned on

8 January and 27 March 1990 - on the first occasion at the

request of Mr Vendittelli, whose doctor had ordered him to rest

for five days, and on the second occasion because his counsel was

unable to attend. In the meantime, on 13 January 1990, the

lawyer had already applied for the trial to be resumed.

13. In a judgment of 4 July 1990, which was filed in the

registry on the same day and became final and therefore

enforceable on 30 October 1990, the Court of Appeal held that

the offence had been amnestied and the prosecution barred as a

result of a presidential decree that had been issued on

12 April 1990. It did not, however, order that the property

should be released from sequestration, nor was the judgment

notified to the applicant, who had to obtain a copy from the

registry on 5 December 1990. In the meantime, by a letter of

19 July 1990, Mr Vendittelli had applied for a hearing to be

fixed.

14. On 19 November 1990 the file was sent to the magistrate

for placing in the archives. In a letter of 10 December 1990 to

the President of the Rome Court of Appeal, which was sent on

17 December to the magistrate's court (pretura), the applicant

again sought to have his property released from sequestration.

He complained of the bad state of his flat.

15. On 17 December the registrar of the magistrate's court

sent the file to the magistrate for execution of the judgment,

that is to say release from sequestration. On 31 January 1991

the magistrate held that he had no jurisdiction and ordered that

the file should be returned to the Court of Appeal.

16. It arrived the next day. The central registry of the

Court of Appeal recorded the point raised regarding execution

(incidente di esecuzione) and on 11 February 1991 sent the file

to the registry of the Second Criminal Division. On 10 April and

9 May 1991 Mr Vendittelli again sought to have his property

released from sequestration.

17. In an order of 17 May 1991, which was filed on 21 May,

sent to Rome Town Hall on 23 May "for execution of what was

ordered in it" and served on the applicant on 3 June, the Rome

Court of Appeal allowed Mr Vendittelli's application and also

noted that the mayor had issued a permit in the meantime.

PROCEEDINGS BEFORE THE COMMISSION

18. Mr Vendittelli applied to the Commission on

11 January 1989. He complained of the length of the criminal

proceedings against him (Article 6 para. 1 of the Convention)

(art. 6-1) and of an infringement of his right to the peaceful

enjoyment of his possessions arising from the length of the

proceedings and from the continued sequestration of his flat

after the Rome Court of Appeal's judgment of 4 July 1990

(Article 1 of Protocol No. 1) (P1-1).

19. The Commission declared the application (no. 14804/89)

admissible on 14 October 1992. In its report of 31 March 1993

(made under Article 31) (art. 31), it expressed the unanimous

opinion that

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

of the Convention by reason of the excessive length of the

proceedings;

(b) it was unnecessary to state its opinion on the complaint

under Article 1 of Protocol No. 1 (P1-1) relating to the length

of the criminal proceedings; and

(c) there had been a breach of Article 1 of Protocol No. 1

(P1-1) on account of the failure to remove the seals after the

judgment of the Court of Appeal.

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 293-A of Series A of the Publications of the Court), but

a copy of the Commission's report is obtainable from the

registry.

_______________

AS TO THE LAW

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

CONVENTION

20. The applicant submitted that the length of the criminal

proceedings against him had been contrary to Article 6 para. 1

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

"In the determination of ... any criminal charge

against him, everyone is entitled to a ... hearing within

a reasonable time by [a] ... tribunal ..."

The Government rejected this complaint but the Commission

accepted it.

21. The period to be taken into consideration began on

20 May 1986 with the decision by the Rome magistrate, who upheld

the placing of seals on Mr Vendittelli's flat (see paragraph 10

above). It ended on 30 October 1990, when the Rome Court of

Appeal's decision became final (see paragraph 13 above and, as

the most recent authority and mutatis mutandis, the Raimondo

v. Italy judgment of 22 February 1994, Series A no. 281-A, p. 20,

para. 42). It therefore covers four years, five months and ten

days.

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

determined 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.

23. The Government stated that the length of the proceedings

in the two courts concerned could not be regarded as excessive.

They blamed the applicant for having at first instance sought to

have his property released from sequestration rather than to have

his case dealt with more quickly (see paragraph 10 above) and for

having on appeal twice sought adjournments (see paragraph 12

above).

24. In Mr Vendittelli's submission, there had been legitimate

reasons for adjourning the hearings on appeal (see paragraph 12

above) and the proceedings had been delayed for only a few days.

The judicial authorities had waited eleven months and fifteen

days before notifying the decision of the magistrate's court

(see paragraph 11 above) and did not serve the Court of Appeal's

decision of 4 July 1990 at all (see paragraph 13 above).

25. The Court reiterates that only delays attributable to the

State may justify a finding that a "reasonable time" has been

exceeded (see, among other authorities, the Monnet v. France

judgment of 27 October 1993, Series A no. 273-A, p. 12,

para. 30).

26. Like the Commission, it notes, firstly, that the case was

not particularly complex.

27. It considers, furthermore, that Mr Vendittelli bears some

responsibility for the prolongation of the proceedings in the

Court of Appeal as, although legitimate, the two adjournments he

sought (see paragraph 12 above) caused a delay of about six

months, which, in proceedings lasting fourteen months in all, was

a fairly substantial one; moreover, they enabled the applicant

to take advantage of the amnesty.

28. As to the conduct of the authorities, the Court notes

that it took eleven months and fifteen days for the magistrate's

court to notify its decision of 15 December 1987. Nevertheless,

seeing that Mr Vendittelli had been present when it was

delivered, he could reasonably have been expected to obtain a

copy of the judgment himself it was sent to the registry on

30 December 1987 (see paragraph 11 above) and draw up his

grounds of appeal from that moment.

The Court of Appeal's judgment which was filed on the

same day that it was delivered (see paragraph 13 above) and not

five months later, as the Commission indicated was admittedly

never served. However, that failure had no effect on the length

of the proceedings since the matter was one of taking formal note

of an amnesty.

29. Having regard to all the circumstances of the case, to

the applicant's conduct, to the fact that two courts dealt with

the case, and to the outcome, the Court does not consider the

overall length of the trial to have been excessive. There has

accordingly been no breach of Article 6 para. 1 (art. 6-1).

II. ALLEGED VIOLATIONS OF ARTICLE 1 OF PROTOCOL NO. 1 (P1-1)

30. Mr Vendittelli also maintained that the length of the

criminal proceedings against him and the continued sequestration

of his flat (see paragraph 13 above) had infringed Article 1 of

Protocol No. 1 (P1-1), which provides:

"Every natural or legal person is entitled to the

peaceful enjoyment of his possessions. No one shall be

deprived of his possessions except in the public interest

and subject to the conditions provided for by law and by

the general principles of international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it

deems necessary to control the use of property in

accordance with the general interest or to secure the

payment of taxes or other contributions or penalties."

A. Article 1 of Protocol No. 1 (P1-1) taken together with

Article 6 para. 1 of the Convention (art. 6-1)

31. The applicant argued that the length of the proceedings

deprived him of the enjoyment of his property.

32. The Government did not express a view.

33. The Commission considered that it was unnecessary to rule

on the issue.

34. The Court points out that one and the same fact may fall

foul of more than one provision of the Convention and Protocols

(see, as the most recent authority, the Wiesinger v. Austria

judgment of 30 October 1991, Series A no. 213, p. 27, para. 77).

In the instant case the sequestration of the flat was a

measure ancillary to the criminal proceedings. That being so,

given the conclusion in paragraph 29 above, no breach has been

made out in this respect.

B. Article 1 of Protocol No. 1 (P1-1) taken alone

35. The applicant also complained that the Rome Court of

Appeal had waited for about eleven months after the judgment of

4 July 1990 that ended the criminal proceedings before ordering

the release of his property from sequestration (see

paragraphs 13 and 17 above). During that period he had not been

able to enjoy the use of his flat or dispose of it as he wished.

36. The Government put forward several reasons for this lapse

of time. Firstly, the registries of the courts concerned had to

carry out various formalities (see paragraphs 14-16 above). Then

it had to be verified that Mr Vendittelli was the owner of the

sequestered flat. Lastly, the period to be taken into

consideration when the alleged delay in returning the property

was being assessed began on 7 November 1990, the date on which

the applicant obtained the building permit making the works that

had been carried out lawful.

37. The Delegate of the Commission submitted that the

starting-point should be taken to be 4 July 1990 (see

paragraph 13 above). In the case of a judgment implementing an

amnesty, it was unnecessary to wait for it to become final since

it was unlikely that an appeal would be lodged with a view to

having the sequestration continued.

38. Like the Commission, the Court finds that the impugned

measure was provided for by law and was designed not to deprive

the applicant of his property but only to prevent him from using

it. Consequently, the second paragraph of Article 1 of

Protocol No. 1 (P1-1) applies in this instance.

The sequestration, which was part of the criminal

proceedings, had two objectives: to preserve the evidence of the

offence and to prevent any aggravation of the offence. The

measure therefore had a legitimate aim.

39. In accordance with its case-law (see the Raimondo v.

Italy judgment previously cited, p. 20, para. 42), the Court

considers that the time allowed for the prosecution to appeal on

points of law must be taken into account. It will therefore

examine the applicant's complaint in respect of the period

running from 30 October 1990 to 21 May 1991, when the Court of

Appeal's order that the property should be released from

sequestration was filed in the registry (see paragraph 17 above).

The date of 7 November 1990 indicated by the Government

as being the day on which Mr Vendittelli received the building

permit does not appear either in the case file or in the

documents supplied by the Government themselves. Furthermore,

the formalities relied on do not explain why release of the

property from sequestration was not ordered at least as soon as

the Court of Appeal's judgment of 4 July 1990 became final.

Admittedly, the applicant sent his letter of 10 December 1990

(see paragraph 14 above) to the wrong judicial authority, but he

thereby helped to set in motion the proceedings relating to the

execution of the judgment (see paragraphs 14 and 15 above).

40. The Court concludes that the Court of Appeal ought to

have ordered the immediate release of the property from

sequestration without even waiting for Mr Vendittelli to raise

the issue, as the considerations justifying sequestration until

30 October 1990 (see paragraph 38 above) had ceased to exist

thereafter. Continuing the sequestration after that date until

21 May 1991 (see paragraph 39 above) therefore placed a

disproportionate burden on the applicant. There has accordingly

been a breach of Article 1 of Protocol No. 1 (P1-1) in this

respect.

III. APPLICATION OF ARTICLE 50 (art. 50)

41. Under Article 50 (art. 50) of the Convention,

"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."

42. At the hearing, counsel for Mr Vendittelli submitted

several documents containing his client's claims for the damage

sustained. He also sought reimbursement of costs and expenses.

43. The Court notes that Rule 50 of its Rules of Court lays

down that claims must be filed at least one month before the

opening of the oral proceedings.

Even if allowance is made for the difficulty of

assembling all the necessary vouchers, it considers that the time

allowed in this case for making these claims was sufficient.

44. That being so, the claims must be dismissed as being out

of time.

FOR THESE REASONS, THE COURT

1. Holds by five votes to four that there has been no breach

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

2. Holds by five votes to four that there has been no

breach of Article 1 of Protocol No. 1 (P1-1) taken

together with Article 6 para. 1 (art. 6-1);

3. Holds unanimously that there has been a breach of

Article 1 of Protocol No. 1 (P1-1) in that the

sequestration of the applicant's flat was continued

beyond 30 October 1990;

4. Dismisses unanimously the claims for just satisfaction.

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

hearing in the Human Rights Building, Strasbourg, on

18 July 1994.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Acting 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 joint

dissenting opinion of Mr Walsh, Mr Spielmann, Mrs Palm and

Mr Loizou is annexed to this judgment.

Initialled: R.R.

Initialled: H.P.

JOINT DISSENTING OPINION OF JUDGES WALSH, SPIELMANN,

PALM AND LOIZOU

1. We regret that we cannot join with the majority of the

Court in their judgment on the questions of whether there were

breaches of Article 6 para. 1 (art. 6-1) of the Convention and

of Article 1 of Protocol No. 1 combined with Article 6 para. 1

(P1-1, art. 6-1).

2. The stark fact is that the proceedings against the

applicant in what, by any standards, was a simple case of whether

or not there had been breach of the planning laws covered a

period of four and a half years. Even allowing for the delay of

about six months attributable to the applicant, we are of opinion

that the time taken was inexcusable in the circumstances of the

case, the most important of which was that during the period in

question the applicant was locked out of his home by the public

authorities, a situation which should have added some sense of

urgency to the prosecuting and judicial authorities. We are

satisfied that there has been a breach of Article 6 para. 1

(art. 6-1).

3. We agree with the majority of the Court that there has

been a breach of Article 1 of Protocol No. 1 (P1-1) for the

reasons stated by the Court.

4. In our opinion that breach of Article 1 of

Protocol No. 1 (P1-1) is the direct result of and inextricably

linked with the breach of Article 6 para. 1 (art. 6-1) and

therefore there has also been a breach of Article 1 of

Protocol No. 1 combined with Article 6 para. 1 (P1-1, art. 6-1).