Lexploria

In the case of Billi 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. Bernhardt, President,

Mr Thór Vilhjálmsson,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr C. Russo,

Mr N. Valticos,

Mr S.K. Martens,

Mrs E. Palm,

Mr F. Bigi,

and also of Mr M.-A. Eissen, Registrar,

Having deliberated in private on 29 October 1992 and

2 February 1993,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 13/1992/358/432. 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 by the European

Commission of Human Rights ("the Commission") on 13 April 1992,

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. 15118/89) against the Italian Republic

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

Italian national, Mrs Emma Billi, on 20 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).

2. In response to the enquiry made in accordance with

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

that she wished to take part in the proceedings; the President

of the Court gave her leave to use the Italian language and to

present her own case (Rules 27 para. 3 and 30 para. 1, second

sentence).

3. On 25 April 1992 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 Pizzetti,

De Micheli, F.M., Salesi, Trevisan and Messina v. Italy* should

be heard by the same Chamber.

_______________

* Cases nos. 8/1992/353/427 to 12/1992/357/431 and

14/1992/359/433.

_______________

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 L.-E. Pettiti, Mr N. Valticos,

Mr S.K. Martens, Mrs E. Palm and Mr F. Bigi (Article 43 in fine

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

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 on the organisation

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

order made in consequence, the Registrar received the applicant's

memorial on 17 June 1992. By a letter of 23 July the Government

stated that they wished to refer the Court to their observations

before the Commission. The Delegate of the Commission did not

lodge written observations.

6. On 26 May the Chamber had decided to dispense with a

hearing, having found that the conditions for such a derogation

from the usual procedure were satisfied (Rules 26 and 38).

7. On 3 September the Commission produced the file on the

proceedings before it, as requested by the Registrar on the

President's instructions.

8. As Mr Ryssdal was unable to attend the deliberations on

29 October, he was replaced as President of the Chamber by

Mr R. Bernhardt, the Vice-President of the Court (Rule 21

para. 5, second sub-paragraph).

9. On 20 October and 8 November 1992 respectively the

Government and the Commission filed their observations on the

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

Convention) (art. 50).

10. On 12 November the Government communicated to the

Registrar certain additional information concerning the facts of

the case.

AS TO THE FACTS

11. Mrs Emma Billi resides at Genzano di Roma. The facts

established by the Commission pursuant to Article 31 para. 1

(art. 31-1) of the Convention are as follows (paragraphs 16-21

of its report):

"16. By writ of summons dated 3 June 1969, served on

7 June 1969, the municipality of Perugia instituted

proceedings before the Perugia District Court against SAI,

a friendly society which organised mutual assistance

between employees and pensioners. The SAI was set up to

grant subsidies or loans to its members. It was financed

by specific contributions from members and by means of

deductions from the pay of wage-earning members.

The municipality of Perugia accused the SAI of

misappropriating large sums of money belonging to it

through the accountant who doubled up as secretary-

treasurer of the friendly society and chief accountant of

the municipality. On 22 May 1969 the President of the

court had ordered the interim seizure of the immovable

property belonging to the members of the SAI's governing

body, which then included Milziade Billi, the applicant's

father. Mr Billi died during the trial and the applicant,

as his heir, sought leave to be joined to the proceedings

at the hearing of 25 January 1973. On 22 February 1973

the investigating judge ordered an accountant's report and

arranged for a hearing to be held on 6 April 1973 so that

the expert could take the oath. On 6 April 1973 the

expert was given six months to draw up his report and the

next hearing was arranged for 15 November 1973. After

that date the proceedings were adjourned several times,

sometimes at the request of the expert, who asked for more

time to complete his report on 28 February 1974,

21 May 1974 and 8 October 1974, and sometimes

(on 15 November 1973, 2 May 1974 and 17 October 1974) at

the request of the parties' lawyers, who were waiting for

the expert's report to be filed.

17. On 19 December 1974 the investigating judge ordered

a further expert opinion. On 20 February 1975 the second

expert was given ninety days to draw up his report. The

investigating judge later granted the expert's request for

an extension until 26 September 1975. The next two

hearings were adjourned at the request of counsel, the

first pending the deposit of the expert's report

(19 June 1975), the second to allow them time to study the

report (22 January 1976).

18. The next hearing, initially arranged for

15 June 1976, was first adjourned until 14 December 1976

and then until 21 February 1978 to give counsel time to

file their final submissions. On 21 February 1978 the

case was set down for trial by the District Court.

However, on 12 January 1979 the proceedings were

interrupted because an heir of one of the defendants, who

had been represented in the proceedings up to that time by

his guardian, reached his majority. Counsel for the

municipality asked for the proceedings to be reopened, and

on 17 April 1979 the investigating judge arranged for the

next hearing to be held on 19 October 1979. On that date

the case was adjourned until 25 January 1980, as the file

had been mislaid. Subsequent adjournments, until 30 June

1980, 31 October 1980 and 3 April 1981, were caused by the

transfer of the investigating judge to other duties or by

the absence of the judge dealing with the case.

19. On 3 April 1981, when in the opinion of counsel the

case was ready for trial, the Perugia District Court

decided that a further expert opinion was necessary. In

a decision dated 19 May 1981 the court appointed an

investigating judge, who, on 13 July 1981, instructed the

expert to elucidate a number of points raised by counsel

in their final submissions.

20. There was then a series of adjournments (on

16 December 1981, 10 February 1982, 21 April 1982,

14 June 1982, 20 September 1982 and 16 March 1983) caused

by the need to wait for the additional expert report to be

filed. On 1 October 1982 the investigating judge granted

the expert an extension of the time-limit. The next two

hearings were adjourned, at counsel's request, because the

expert had still not filed his report. After repeatedly

summoning the expert to produce his report, and after

receiving a letter from the expert dated 8 March 1984

asking for a different expert to be appointed, the

investigating judge appointed another expert, who took the

oath on 14 May 1984.

21. Further adjournments followed on 28 November 1984

and 22 April 1985 pending the filing of the expert report.

On 29 May 1985 the report was filed and counsel again

requested an adjournment to give them time to study it.

On 18 September 1985 the investigating judge asked the

registry to supply the criminal file, since the facts

complained of by the municipality had in the meantime led

to criminal proceedings. A number of adjournments then

followed (on 13 November 1985, 18 December 1985,

3 December 1986, 27 January 1987 and 5 February 1987) for

the filing by counsel of their final submissions.

On 21 July 1986 the President of the court had appointed

a new investigating judge. On 5 February 1987 the

investigation was closed and the case set down for trial

by the court on 9 April 1988. In a judgment dated

14 May 1988, deposited with the registry on

7 November 1988, the Perugia District Court rejected the

municipality's claims."

12. According to the information supplied by the Government

(see paragraph 10 above), no appeal was filed against this

decision by the applicant, in relation to whom it became final

on 7 November 1989.

PROCEEDINGS BEFORE THE COMMISSION

13. Mrs Billi lodged her application with the Commission on

20 January 1989. Relying on Article 6 para. 1 (art. 6-1) of the

Convention, she complained of the length of the civil proceedings

in question.

14. On 8 July 1991 the Commission declared the application

(no 15118/89) admissible. In its report of 9 December 1991 (made

under 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 257-G of Series A of the Publications of the Court), but

a copy of the Commission's report is available from the registry.

_______________

AS TO THE LAW

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

15. The applicant alleged that the civil action concerning her

had not been tried within a "reasonable time" as required by

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 contested this claim, whereas the

Commission accepted it.

16. The period to be taken into consideration did not begin on

25 January 1973, the date on which Mrs Billi joined the

proceedings as the heir to her father, Mr Milziade Billi, but

only on 1 August 1973 when the Italian declaration accepting the

right of individual petition (Article 25) (art. 25) took effect.

In order to determine the reasonableness of the length of time

which elapsed after that date, regard must be had however to the

state of the case at that time (see, inter alia, the Pandolfelli

and Palumbo v. Italy judgment of 27 February 1992, Series A

no. 231-B, p. 19, para. 14).

The period in question ended on 7 November 1989.

17. 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.

18. The Government pleaded the complexity of the facts of the

dispute, the number of those taking part in the proceedings and

the difficulty of drawing up the expert reports which the court

needed to give judgment. They also cited the conduct of the

parties - including the applicant -, who had requested

adjournments throughout the proceedings.

Mrs Billi complained of the Italian State's failure to

take appropriate action in the field of the administration of

justice.

19. Like the Commission, the Court notes in the first place

that the case was a complex one: beyond any doubt the necessity

of an expert opinion and the presence of several defendants

rendered the proceedings more cumbersome and slowed them down.

It should however be stressed that the majority of the requests

by the parties for adjournments were made on the justifiable

ground that they were waiting for the expert's report to be

filed.

In addition, as the Commission correctly pointed out, more

than twelve years elapsed between the hearing at which the first

expert took the oath (6 April 1973) and the date on which the

second lodged his report (29 May 1985). In this connection, the

Court observes that they were both working in the context of

judicial proceedings supervised by a judge, who remained

responsible for the preparation and the speedy conduct of the

trial (see, mutatis mutandis, the above-mentioned Pandolfelli and

Palumbo judgment, p. 19, para. 17).

20. Accordingly, and having regard in addition to the fact

that the case was heard at only one level of jurisdiction, the

Court cannot consider "reasonable" the period of over sixteen

years which elapsed in the proceedings in issue.

In conclusion, there has been a violation of Article 6

para. 1 (art. 6-1).

II. APPLICATION OF ARTICLE 50 (art. 50)

21. Under 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."

22. The applicant claimed 150,000,000 Italian lire for

pecuniary damage and the same sum again for non-pecuniary damage.

She included her costs and expenses in the second amount. The

pecuniary damage had stemmed from the attachment of all the

applicant's moveable and immoveable property, a situation which

had lasted throughout the proceedings.

23. The Government denied that there had been any pecuniary

damage; in any event there was no evidence establishing it.

24. According to the Delegate of the Commission, Mrs Billi had

sustained clear and substantial pecuniary damage. She had

provided sufficient evidence to establish that the damage claimed

was real and the sums which she sought were in no way excessive.

As regards the non-pecuniary damage invoked, a mere finding of

a violation would not constitute sufficient reparation.

25. On the basis of the documentary evidence adduced and in

particular the evidence concerning the details of the attachment

and sale of Mr Milziade Billi's property (judgment of the Perugia

District Court of 14 May 1988 and applicant's memorial), the

Court awards to the applicant 20,000,000 lire, to cover all the

heads of claim.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 6

para. 1 (art. 6-1);

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

applicant, within three months, 20,000,000 (twenty

million) Italian lire for damage;

3. Dismisses 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

1993.Signed: Rudolf BERNHARDT

President

Signed: Marc-André EISSEN

Registrar

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CASE OF BILLI v. ITALY

CASE OF BILLI v. ITALY

LEXI