Final Resolution ResDH (2002)147 Human Rights Application No. 14667/89 Cantafio against Italy

(Adopted by the Committee of Ministers on 17 December 2002 at the 819th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to Interim Resolution DH(95)260, adopted on 20 November 1995 in the case of Cantafio against Italy, in which the Committee of Ministers decided that there had been a violation of Article 6, paragraph 1, of the Convention and to make public the report of the European Commission of Human Rights;

Recalling that the violation found in this case concerned the fact that the applicant had no access to a court in order to resolve a dispute, dating from 1986, with the Municipality of Decollatura since the arbitration committee established for the purpose never met as a result of notification problems and the legislation then in force excluded the possibility of seising an ordinary court; Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicant, proposals supplemented by a letter of the President of the Commission dated 13 November 1996;

Whereas at the 582nd meeting of the Ministers’ Deputies, the Committee of Ministers, agreeing with the Commission’s proposals, held by a decision adopted on 28 January 1997, in accordance with former Article 32, paragraph 2, of the Convention, that the Government of the respondent State was to pay the applicant as just satisfaction, within three months, 9 000 000 Italian lire in respect of non-pecuniary damage and 4 500 000 Italian lire in respect of costs and expenses, namely a total sum of 13 500 000 Italian lire, and that interest should be payable on any unpaid sum, calculated on the basis of each full elapsed month of delay at the statutory rate applicable on the date of this decision, it being understood that the interest would accrue from the expiry of the time-limit until full payment was placed at the disposal of the applicant;

Whereas the Committee of Ministers invited the Government of the respondent State to inform it of the measures taken following its decisions of 20 November 1995 and 28 January 1997, having regard to Italy’s obligation under former Article 32, paragraph 4, of the Convention to abide by them;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent State indicated that the Commission’s report as well as the Committee of Ministers’ decisions had been sent out to the authorities directly concerned and gave the Committee information about the individual and general measures taken in consequence of the Committee’s decisions (this information appears in the appendix to this resolution);

Whereas the Committee of Ministers satisfied itself that on 14 April 1997, within the time-limit set, the Government of the respondent State had paid the applicant the total sum of 13 500 000 Italian lire as just satisfaction,

Declares, after having taken note of the measures taken by the Government of Italy, that it has exercised its functions under former Article 32 of the Convention in this case.

Appendix to Final Resolution ResDH (2002)147

Information provided by the Government of Italy during the examination of the Cantafio case by the Committee of Ministers

The Constitutional Court, by decision No. 152 of 9 May 1996, declared unconstitutional the provision according to which neither of the parties to a dispute could unilaterally derogate from the arbitrator’s competence in the field of public works (Article 16 of Law No. 741 of 10 December 1981, which replaced the relevant part of Article 47 of Presidential Decree No. 1063 of 16 July 1962). This finding of unconstitutionality signifies that it is not compulsory to have recourse to arbitration and t hat each party may seise ordinary courts, in situations, among others, similar to this case. There is therefore no risk of new violations similar to that found in this case.

As regards the individual measures required, Mr Cantafio could, at any time following the above-mentioned decision, have brought the matter before an ordinary court in order to solve the dispute with the administration awarding the contract, at least until 3 October 1996, the date upon which his right to payment for the work carried out is presumed to have lapsed.

The Government also notes that in 1997 the applicant introduced a new application (No. 37851/97), reiterating among other things his complaint of lack of access to a tribunal and that the European Court of Human Rights, by a decision of 30 May 2000, dismissed it in application of Article 35, paragraph 4, of the Convention, having considered that the complaint was substantially the same as the previous application No. 14667/89 and that it did not contain any relevant new information.

In the light of the information above, the Government considers that Italy has satisfied its obligations under former Article 32 of the Convention in this case.