Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 19496/92

G.B.

against

Italy

REPORT OF THE COMMISSION

(adopted on 26 June 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 13). . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2 - 4). . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5 - 10) . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11 - 13). . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 14 - 22) . . . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 23 - 42) . . . . . . . . . . . . . . . . . . . .4

A. Complaint declared admissible

(para. 23). . . . . . . . . . . . . . . . . . . . .4

B. Points at issue

(para. 24). . . . . . . . . . . . . . . . . . . . .4

C. As regards Article 6 para. 1 of the Convention

(paras. 25 - 34). . . . . . . . . . . . . . . . . .4

1. The period to be taken into consideration

(para. 26) . . . . . . . . . . . . . . . . . .4

2. Reasonableness of the length of the proceedings

(paras. 27 - 34) . . . . . . . . . . . . . . .4

CONCLUSION

(para. 35). . . . . . . . . . . . . . . . . . . . .5

D. As regards Article 1 of Protocol No. 1

(paras. 36 - 39). . . . . . . . . . . . . . . . . .5

CONCLUSION

(para. 40). . . . . . . . . . . . . . . . . . . . .6

E. Recapitulation

(paras. 41 - 42). . . . . . . . . . . . . . . . . .6

APPENDIX : DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION . . . . .7

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is an Italian citizen, born in 1916 and residing

in Livorno.

3. The application is directed against Italy. The respondent

Government were represented by Mr. Umberto Leanza, Head of the

Diplomatic Legal Service, Ministry of Foreign Affairs.

4. The case concerns the length of the civil proceedings in respect

to the freezing of the applicant's bank account and portfolio as well

as the financial prejudice resulting therefrom. The applicant invokes

Article 6 para. 1 of the Convention and Article 1 of Protocol No. 1 to

the Convention.

B. The proceedings

5. The application was introduced on 21 September 1991 and

registered on 7 February 1992.

6. On 22 February 1995 the Commission (First Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on the admissibility and

merits of the complaints related to the length of the criminal

proceedings and the financial prejudice resulting therefrom.

7. The Government's observations were submitted on 18 May 1995. The

applicant replied on 11 August 1995.

8. On 29 November 1995 the Commission declared the application

admissible as to the complaints concerning the length of the

proceedings and the financial burden resulting from such length; it

declared the remainder of the application inadmissible. The

Commission's decision on the admissibility of the application is

annexed hereto.

9. The text of the Commission's decision on admissibility was sent

to the parties on 7 December 1995.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The Commission (First Chamber), having found that there is no

basis on which a friendly settlement pursuant to Article 28 para. 1 (b)

of the Convention can be effected, has drawn up the present report in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

12. The text of this Report was adopted on 26 June 1996 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

II. ESTABLISHMENT OF THE FACTS

14. On 7 November 1986 the applicant's wife applied to the presiding

judge of the Livorno court in order to obtain an ex parte injunction

freezing ("sequestro conservativo") her husband's bank account and

portfolio (including stocks, shares and securities), in which she

claimed to own a fifty per cent share.

15. By decree of 7 November 1986, the President of the court allowed

the freezing of the applicant's bank account and portfolio, on the

grounds that the applicant's wife's claim appeared prima facie to be

well-founded (fumus boni iuris) and that there existed a periculum in

mora.

16. The freezing of the bank account took effect in Livorno on

11 November 1986; that of the portfolio took effect in Pisa on

14 November 1986.

17. The substantive proceedings were instituted by the applicant's

wife before the Livorno court by summons of 21 November 1986.

18. By judgment of 17 July 1990, the Livorno court held that the

applicant's wife was the legitimate owner of fifty per cent of the

money deposited in the frozen bank account and of the portfolio, and

therefore ratified the injunction.

19. The judgment was filed with the registry on 7 November 1990 and

was served on the applicant's wife on 7 January 1991.

20. By a writ served on 7 February 1991, the applicant lodged an

appeal before the Florence court of appeal against this judgment,

claiming that his wife did not have any property rights over either the

sums of money deposited in his bank account or over his portfolio.

21. By a decision delivered on 5 March 1993, filed with the registry

on 11 June 1993 and served on the applicant on 1 February 1994, the

Florence court of appeal dismissed the appeal on the grounds that it

had been lodged out of time, the relevant thirty days' time limit

having expired on 6 February 1991.

22. On 14 April 1994, the applicant lodged an appeal on points of law

against this judgment; the proceedings are currently pending before the

Court of cassation.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

23. The Commission has declared admissible the applicant's complaints

about the length of the civil proceedings relating to the freezing of

the applicant's bank account and about the financial burden resulting

from such length.

B. Points at issue

24. The points at issue in this case are the following:

(a) whether the length of the proceedings exceeded the "reasonable

time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.

(b) whether, if so, the financial prejudice resulting from the length

of the proceedings amounts to a breach of Article 1 of Protocol No. 1

(P1-1) to the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

25. The relevant part of Article 6 para. 1 (Art. 6-1) of the

Convention provides as follows:

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

everyone is entitled to a (...) hearing within a reasonable time

by [a] tribunal (...)."

1. The period to be taken into consideration

26. The period to be taken into consideration began on 7 November

1986, when the applicant's wife applied for an ex parte injunction

against the applicant, and proceedings are currently pending before the

Court of cassation. The period under consideration is therefore over

nine years and seven months to date.

2. Reasonableness of the length of the proceedings

27. The Commission recalls that:

"The reasonableness of the length of the proceedings is to be

assessed in the light of the particular circumstances of the

case, regard being had to the criteria laid down in the Court's

case-law, in particular the complexity of the case, the

applicant's conduct and that of the competent authorities (...)"

(Eur. Court H.R., Kemmache judgment of 27 November 1991, Series A

no. 218, p. 27, para. 60).

28. The Government maintain that the overall duration of the

proceedings cannot be regarded as being unreasonable, and in any event

is attributable to the applicant's conduct, since he failed to apply

for a speedy trial before the Court of cassation.

29. The applicant contends that the duration of the proceedings is

in any event excessive, in particular in view of his age.

30. The Commission does not consider, nor have the Government

alleged, that the case was particularly complex.

31. As to the applicant's conduct, the Commission considers that it

does not justify the length of the proceedings. In particular, in so

far as the possibility of requesting a speedy trial is concerned, the

Commission considers that the Government have not shown that such a

request would have been effective (see Cifola v.Italy, Comm. report

15.1.91, para. 32, Eur. Court H.R., Series A no. 231-A, p. 13).

32. The Commission notes that several periods of inactivity,

attributable to State authorities, occurred in the proceedings; it

notes in particular that the Florence court of appeal took three years

to dismiss the applicant's appeal for being out of time, and the Court

of cassation has taken more than two years to examine the applicant's

appeal on points of law.

33. The Commission has considered the submissions of the parties in

this respect, and finds that this delay of five years to date, which

is attributable to the competent authorities, is not convincingly

explained by the Government.

34. In light of the criteria and circumstances of the case described

above, the Commission considers that the length of the proceedings in

this case, being over nine years and six months, has not been justified

by the Government. Consequently the Commission finds that the

reasonable time referred to in Article 6 para. 1 (Art. 6-1) of the

Convention has been exceeded.

CONCLUSION

35. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

D. As regards Article 1 of Protocol No. 1 (P1-1)

36. The applicant claims that the length of the proceedings in

question caused him a significant financial prejudice in breach of

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

37. Article 1 of Protocol No. 1 (P1-1) provides:

"Every natural (...) 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".

38. The Commission considers that the negative repercussions the

excessive length of the proceedings may have had on the applicant's

enjoyment of his property may be regarded as the result of the

infringement of the right guaranteed by Article 6 para. 1 (Art. 6-1)

of the Convention and may be taken into consideration only for the

purposes of the just satisfaction that the applicant may obtain

following the establishment of that infringement by the organs upon

which the Convention confers that responsibility.

39. In view of the circumstances of the case and the conclusion

reached in paragraph 35 above, the Commission considers it unnecessary

to determine also the complaint based on Article 1 of Protocol No. 1

(P1-1) (see Eur. Court H.R., Zanghi' judgment of 19 February 1991,

series A no. 194-C, p. 47, para. 23).

CONCLUSION

40. The Commission concludes, unanimously, that in the present case

it is unnecessary to determine the complaint based on Article 1 of

Protocol No. 1 (P1-1) to the Convention.

E. Recapitulation

41. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

42. The Commission concludes, unanimously, that in the present case

it is unnecessary to determine the complaint based on Article 1 of

Protocol No. 1 (P1-1) to the Convention.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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G.B. v. ITALY

G.B. v. ITALY

LEXI