SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38805/97 by W.K. against Italy

The European Court of Human Rights, sitting on 25 June 2002 as a Chamber composed of

Mr J.-P. Costa , President , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mr V. Zagrebelsky , judges , and Mr T.L. Early , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 7 November 1996 and registered on 28 November 1997,

Having deliberated, decides as follows:

THE FACTS

The applicant, W.K., is a Polish national, who was born in 1956 and lives in Poland.

A. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant and Mr P., an Italian citizen living in Italy, are the parents of a daughter born out of wedlock on 19 November 1988. The latter was registered with the civil-status office as being the child of the applicant and Mr P.

Since the child’s birth Mr P. has not assumed any parental duties.

The applicant filed a lawsuit against Mr P. in the District Court of Katowice, claiming maintenance for her minor daughter.

On 23 June 1993, the Katowice District Court ordered the defendant in absentia to pay maintenance equivalent to 3,500,000 zlotys per month, due and payable from 19 November 1988, plus statutory interest should he default on payment. This decision became final on 15 July 1993.

Having received no money, on 30 May 1994 the applicant sought implementation of the UN Convention on the Recovery Abroad of Maintenance of 20 June 1956, and applied to the District Court of Katowice (acting as the Transmitting Agency) for the recovery of maintenance from the Italian Ministry of Internal Affairs (acting as the Receiving Agency), as provided by that Convention.

In her request, the applicant first asked for payment of the sum due of 3,500,000 zlotys per month plus default interest which, by 1 January 1994, came to a total of 213,500,000 zlotys. The applicant also requested an increase in maintenance from 3,500,000 zlotys per month to 6,500,000 zlotys per month, based on information that Mr P. earned 3,000 US dollars per month and because of ever-increasing rearing costs. Finally, she asked the Italian authorities to start judicial proceedings against Mr P. to execute the decision of the Katowice District Court, plus the judicial expenses, if Mr P. refused spontaneously to execute the judgment .

On 30 May 1994, the District Court of Katowice addressed the applicant’s request to the Italian Ministry of Internal affairs.

On 18 October 1994, the Ministry of Internal Affairs, in a letter sent to the Katowice District Court, confirmed receipt of the applicant’s letter and the referral of the matter to the Prefecture of Terni. The Ministry of Internal Affairs also added that, in as far as a decision existed, it obliged Mr P. to pay 3,500,000 zlotys per month; a different amount could not be claimed.

On 3 May 1996, the Ministry of Internal Affairs sent another letter to the Katowice District Court informing it that the Perugia State District Counsel had been appointed to open proceedings to execute the decision of the Katowice District Court.

On 27 December 1996, the Perugia State District Counsel informed the Ministry of Internal Affairs that he had started proceedings before the Perugia Court of Appeal for execution of the decision of the Katowice District Court.

On 21 January 1998 the Court of Appeal of Perugia declared the Katowice District Court decision enforceable in Italy.

On 30 March 1999 the Ministry of Internal Affairs invited the debtor to fulfil his commitment spontaneously.

On 2 April 1999 the decision of the Court of Perugia became final.

On 2 May 2000 the Italian Ministry of Internal Affairs asked the Polish authorities for an up-dated calculation of the debt, to which the Polish authorities replied on 27 September 2000.

On 27 November 2000 the Prefecture of Terni informed the Ministry that on 6 July 1999 and on 23 October 2000 it had formally invited the debtor to pay.

As the debtor did not fulfil his obligation within the time allotted, on 18 December 2000 the Perugia State District Counsel was asked to start the enforcement proceedings.

B. Relevant international and domestic law

1. The Convention on the recovery abroad of maintenance

The Convention on the recovery abroad of maintenance was adopted and opened for signature on 20 June 1956 by the United Nations Conference on Maintenance Obligations. This Conference had been convened by the Economic and Social Council of the United Nations (cf. United Nations, Treaty Series, 1957, pp. 4-11 and 32-47). The Convention came into force on 25 May 1957. Italy and Poland ratified it on 28 July 1958 and 21 March 1968, respectively. The relevant provisions of the Convention read as follows:

Article 1

“1. The purpose of this Convention is to facilitate the recovery of maintenance to which a person, hereinafter referred to as claimant, who is in the territory of one of the Contracting Parties, claims to be entitled from another person, hereinafter referred to as respondent, who is subject to the jurisdiction of another Contracting Party. This purpose shall be effected through the offices of agencies, which will hereinafter be referred to as Transmitting and Receiving Agencies.

2. The remedies provided for in this Convention are in addition to, and not in substitution for, any remedies available under municipal or international law.”

Article 2 §§ 1 and 2

“1. Each Contracting Party shall, at the time when the instrument of ratification or accession is deposited, designate one or more judicial or administrative authorities, which shall act in its territory as Transmitting Agencies.

2. Each Contracting Party shall, at the time when the instrument of ratification or accession is deposited, designate a public or private body, which shall act in its territory as Receiving Agencies.”

Article 3 § 1

“Where a claimant is on the territory of one Contracting Party, hereinafter referred to as the State of the claimant, and the respondent is subject to the jurisdiction of another Contracting Party, hereinafter referred to as the State of the respondent, the claimant may make application to a Transmitting Agency in the State of the claimant for the recovery of maintenance from the respondent.”

Article 4 § 1

“The Transmitting Agency shall transmit the documents to the Receiving Agency of the State of the respondent, unless satisfied that the application is not made in good faith.”

Article 5 § 1

“The Transmitting Agency shall, at the request of the claimant, transmit, under the provision of Article 4, any order, final or provisional, and any other judicial act, obtained by the claimant for the payment of maintenance in the competent tribunal of any Contracting Party, and, where necessary and possible, the record of the proceedings in which such order was made.”

Article 6

“1. The Receiving Agency shall, subject always to the authority given by the claimant, take on behalf of the claimant, all appropriate steps for the recovery of maintenance, including the settlement of the claim and, where necessary, the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance.

2. The Receiving Agency shall keep the Transmitting Agency currently informed. If it is unable to act, it shall inform the Transmitting Agency of its reason and return the documents.

3. Notwithstanding anything in this Convention, the law applicable in the determination of the questions arising in such action or proceedings shall be the law of the State of the respondent, including its private international law.”

2. Law n° 218 of 31 May 1995 (reform of the Italian system of private international law)

Section 64 of Law n° 218 of 1995 indicates the cases where a judgment delivered by a foreign court is recognised in Italy without any specific procedure. Section 67 gives indications about the execution of judgments and decisions in the matter of voluntary jurisdiction and in the matter of any refusal to comply.

3. Law n° 89 of 18 April 2000 (Provision for just satisfaction on failure to comply with the “reasonable-time requirement”)

This Act, which came into force on 18 April 2001, completes Article 111 of the Italian Constitution, which provides that the right to have proceedings conducted within a reasonable time shall be guaranteed by legislation. The new Act enables a claim for compensation to be made in the Court of Appeal, which will apply the case law of the European Court of Human Rights, by anyone who has sustained pecuniary or non-pecuniary damage as a result of the inordinate length of proceedings.

Section 2 (Entitlement to just satisfaction)

“Anyone sustaining pecuniary or non-pecuniary damage as a result of a failure to comply with the “reasonable-time” requirement in Article 6 § 1 of the European Convention on Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, shall be entitled to just satisfaction.

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, as well as the conduct of any authority required to participate in or contribute to the resolution of the case.

The court shall assess the quantum of damage in accordance with Article 2056 of the Civil Code and shall apply the following rules:

- only damage attributable to the period beyond the reasonable time referred to in subsection 1 may be taken into account;

- 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)

“Claims for just satisfaction shall be lodged with the court of appeal in which sits the judge with jurisdiction under Article 11 of the Code of Criminal Procedure to try cases concerning members of the judiciary sitting in the district where the merits of the case – in which the violation is alleged to have occurred – were decided or discontinued or are pending.

The claim shall be made on 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.

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.

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 before the relevant chamber 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.

The parties may apply to the court for an order for the 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 chamber in private if they attend the hearing. The parties may lodge memorials and documents by no later than five days before the date set for the hearing before the chamber or such later date as the court of appeal may decide on application by the parties.

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.

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 respect of which a violation is alleged 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 grant an application, its decision shall be communicated by the registry to the parties, to State Counsel at the Audit Court 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 concerned by the proceedings.”

Section 6 (Transitional provisions)

“Within six months [postponed to twelve by Law no. 432 of 2001] 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 European Convention on 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 shall state when the application to the said European Court was made.

The registry of the relevant court shall inform the Minister of 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.”

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention of the length of proceedings for the recovery of maintenance.

THE LAW

The applicant complains that the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

The Government reject the allegation. They recognise that Article 6 of the Convention applies in the present case to both the recovery and subsequent enforcement proceedings, but they consider the application inadmissible on two grounds: the applicant has failed to exhaust domestic remedies and it is manifestly ill-founded on the merits.

1. The Government’s preliminary objections

The Government object that the applicant did not pursue proceedings under Law n° 218 of 1995 or bring an action under Law n° 89 of 24 March 2001.

The first Law concerns the reform of Italian private international law. The Government submit that, as of 1995, it has not been necessary to bring an action for recovery in execution of foreign decisions. It is sufficient to request a bailiff to implement the judgment , as a foreign judgment is enforceable under Section 67 of the Law. The Government stress that if the applicant had adopted that course of action, the proceedings would have been shorter.

The second Law enables anyone sustaining pecuniary or non-pecuniary damage as a result of a failure to comply with the “reasonable time” requirement in Article 6 § 1 of the Convention to apply to the Court of Appeal for just satisfaction. The transitional provisions of Law n° 89 provide that anyone who has already lodged an application with the European Court of Human Rights shall be entitled to lodge, within a specified time, an application before the domestic courts provided that the application has not by then been declared admissible by the European Court (Article 6 of Law n° 89). Therefore the Government affirm that in the present application the subsidiary jurisdiction of the Court is not applicable because a decision on admissibility has not yet been made.

As regards the first ground of the objection, the Court notes that according to Article 6 (1) of the Convention on the Recovery Abroad of Maintenance, “The Receiving Agency shall, subject always to the authority given by the claimant, take on behalf of the claimant, all appropriate steps for the recovery of maintenance, including the settlement of the claim and, where necessary, the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance”. The applicant, acting as claimant, did not ask the Italian authorities to take the action they chose to take. Consequently, it was up to the Italian authorities to decide how they would provide the assistance required by the Polish District Court. Consequently, the applicant is not responsible if, in 1996, the Italian authorities did not instruct the bailiff directly but started proceedings in the Court of Appeal. Moreover, the Italian authorities did not inform the Polish District Court or the applicant about the possibility of choosing another procedure after the entry into force of Law n° 218 of 1995.

As to the second ground, the Court notes that the present case does not concern the length of proceedings where a dispute must be decided but the execution of a foreign judgement according to international law.

Accordingly, the Court dismisses the Government’s objections.

2. Merits

As to the merits, the Italian Government contend that the application is manifestly ill-founded because the Italian authorities did not question the applicant’s right to enforce the Polish judgment . This is confirmed by the fact that they first activated the administrative procedure in order to arrange a compromise and then they started the judicial procedure to obtain execution of the Polish court’s decision. Accordingly, there was not a “ contestation ” (dispute) concerning the determination of the applicant’s right. The Government also noted that the delays are not the consequence of the conduct of the relevant Italian authorities but the result of Mr P.’s attitude, who refused to execute the Polish judgment spontaneously.

In reply, the applicant maintains that the case has to be assessed as a whole and that it was not complex.

The Court does not agree with the Government’s argument that Article 6 is not applicable to the proceedings at issue. In its opinion, there was a dispute between the applicant and Mr P. and the enforcement by the Italian courts of the judgment given in her favour by the Polish court was essential for the final determination of her civil right to maintenance.

The Court notes that the proceedings began on 30 May 1994, when the District Court of Katowice addressed the applicant’s request to the Italian Ministry of Internal affairs. On 18 December 2000, the proceedings were still pending. At that date, they had already lasted six years, six months and eighteen days.

It considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities and what was at stake for the applicant), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

T.L. Early J.-P. Costa              Deputy Registrar President