CONCURRING OPINION OF MR. GANSHOF VAN DER MEERSCH

(Translation)

I am of the opinion, like my distinguished colleagues, that the absence of public pronouncement of the Italian Court of Cassation ’ s judgment did not contravene Article 6 § 1 (art. 6-1) of the Convention in the present case; however, I cannot agree with one of the reasons on which our Court has based its decision.

I regret that paragraph 27 of the judgment refers, in order to justify the absence of violation, to the fact that the role of the Court of Cassation "was confined to reviewing in law the decision of the Venice Court of Appeal".

Apparently this is not just an obiter dictum, and this impression is reinforced by the fact that in paragraph 26 the Court also cites in support of its decision the example, to be found in several member States of the Council of Europe, of the procedure consisting of the deposit of the judgment in a registry accessible to the public, such procedure being utilised "especially [in] their courts of cassation".

DISSENTING OPINION OF MR. PINHEIRO FARINHA

(Translation)

1. To my great regret I am unable to share the conclusion of the majority of the Court to the effect that the "reasonable time" referred to in Article 6 § 1 (art. 6-1) of the Convention was not exceeded.

2. Like the majority, I am of the opinion that "the relevant period did not begin to run as from the institution of proceedings before the Vicenza Regional Court on 24 September 1971" - and I emphasise the date -, "but only as from 1 August 1973, when the recognition by Italy of the right of individual petition took effect", and that "in assessing the reasonableness of the time that elapsed after 31 July 1973, account must be taken of the then state of proceedings".

3. I also agree with paragraph 31, where it is stated that "the reasonableness of the length of proceedings has to be assessed in each instance according to the particular circumstances and having regard to the criteria enunciated in the Court ’ s case-law"; this being so, I will now turn to an examination of the specific case.

4. Complexity of the case

The facts were undisputed.

Although the case raised a complex problem of legal interpretation, account must be taken of the fact that the Act which fell to be interpreted (Act no. 590) dated back to 26 May 1965; more than ten years had elapsed between that date and the time when the Court of Cassation was called upon to interpret the Act in the present case. Accordingly, I conclude that the case was not complex, since ten years appear to me to be more than sufficient for an examination of the Act, however complex it may have been.

5. Conduct of Mr. Pretto

I agree with the opinion of the majority to the effect that "Mr. Pretto was entitled to make full use of the time-limits available under Italian law and ... was never out of time".

Mr. Pretto ’ s conduct cannot be criticised; in my view, he was in no way responsible for the prolongation of the proceedings.

6. Conduct of the judicial authorities

It does not seem to me reasonable that the Venice Court of Appeal ’ s judgment, which was adopted on 8 October 1974 , should have been deposited in that Court ’ s registry on 12 December: this meant that two months elapsed before it was made public.

Although the case was ready for hearing as from 3 May 1975 , the Court of Cassation directed that the hearings be held on 18 February 1976 .

On the latter date, the Court of Cassation postponed the hearings in order to await the plenary Court ’ s ruling on appeals on points of law that raised the same issue. The reason for the postponement was not any legal obligation to await the plenary Court ’ s decision but the fact that the Civil Chamber of the Court of Cassation considered it proper. The plenary Court did not give judgment until 10 June 1976 . There is no justification for this delay; in view of the fact that the case had already been pending for several years, Article 6 § 1 (art. 6-1) of the Convention, to the extent that it secures the right to have proceedings conducted within a reasonable time, required that Mr. Pretto ’ s appeal on points of law be examined immediately.

The appeal was only examined on 19 October 1976 (although the judgment adopted by the plenary Court of Cassation had not yet been made public) and the resulting judgment was made public, by being deposited in the Court of Cassation ’ s registry, on 5 February 1977; there is no justification for this delay either.

7. I conclude that the duration of the proceedings exceeded the "reasonable time". I am therefore of the opinion that there was a violation of Article 6 § 1 (art. 6-1) of the Convention.

[*]  Note by the registry: In the version of the Rules applicable when proceedings were instituted.  A revised version of the Rules entered into force on 1 January 1983 , but only in respect of cases referred to the Court after that date.