Resolution CM/ResDH(2009)84 [1]

Execution of the judgment of the European Court of Human Rights

Kaufmann against Italy

(Application No. 14021/02, judgment of 19 May 2005, final on 12 October 2005 )

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation found by the Court in this case concerns the fact that the applicant was denied access to a court due to the dismissal in 2000 by the civil section of the Court of Cassation of the applicants appeal on points of law as out of time even though the delay was not of his making (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2009)84

Information about the measures taken to comply with the judgment in the case of

Kaufmann against Italy

Introductory case summary

The case concerns a violation of the applicant ' s right of access to a court, on account of the dismissal by the Italian Court of Cassation in 2000 of the applicant ' s appeal on points of law on the ground that it was out of time, whereas he had complied within the time-limits and was not responsible for the delay in serving the notice to his appeal on the parties to the proceedings who were living abroad (violation of Article 6§1). The appeal concerned a contestation over the ownership of a plot of land.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

5 500 EUR

4 000 EUR

9 500 EUR

Paid on 13/01/2006

b) Individual measures

In its examination of the just satisfaction to be granted to the applicant, the European Court considered that no direct causal link existed between the violation found in this judgment and the pecuniary damage alleged by the applicant on account of the loss of his property rights, which were the subject of the proceedings before the Court of Cassation. In fact, the European Court indicated that it could not speculate on the outcome of the contested civil proceedings if the violation of the Convention had not taken place and compensated the applicant for the loss of opportunities and the non-pecuniary damage suffered. The applicant has not expressed a wish to have the civil proceedings reopened.

II. General measures

In decisions adopted prior to the facts of this case, in 1994, the Constitutional Court had already found that the individual should not be penalised by the late compliance of foreign authorities. In a decision of 2002, i.e. after the facts of this case, the Constitutional Court further specified that the dies ad quem for notification should be fixed at the moment when the party to the proceeding files the act to be notified with the judicial authorities, as any further activity of the judicial authorities does not fall under the control of the individual. In the light of this development of the case-law, new violations similar to that found in this case should not occur again.

III. Conclusions of the respondent state

The government considers that the measures adopted will prevent new, similar violations and that Italy has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 30 September 2009 at the 1065th meeting of the Ministers’ Deputies