PARTLY DISSENTING OPINION OF JUDGE FERRARI BRAVO

( Translation )

I voted against the part of the judgment in which the applicant is awarded compensation for non-pecuniary damage. Far from sustaining any damage, he gained by the delay in delivering judgment in that he did not have to pay the larger sum for his children’s maintenance that he was subsequently ordered to pay. In those circumstances I fail to see what the “non-pecuniary damage” could be. As to the rest, I agree that the Italian State should be found to have committed a violation on account of the excessive length of the judicial proceedings.

JOINT PARTLY DISSENTING OPINION OF JUDGES TULKENS AND CASADEVALL

( Translation )

1. We regret that we cannot share the opinion expressed by the majority of the Grand Chamber, who adopted the Commission’s approach and held that there was no need to examine the complaint under Article 8 of the Convention.

2. We consider, as the applicant requested, that the case should also have been examined under Article 8, which concerns the right to respect for family life. The consequences of excessive length of judicial proceedings are not the same in every case. In the present case the fact cannot be disregarded that the length of the proceedings (which lasted more than eight years up to the Nola District Court’s judgment of 27 May 1998), which concerned, inter alia , custody and access arrangements in respect of the children, who were aged 6 and 2 at the beginning of the proceedings, may have entailed serious moral and emotional difficulties for the applicant in his relationship with his children.

3. Rightly or wrongly, but at all events irreversibly, Mr Laino therefore lost eight precious, formative and irretrievable years of regular, close contact with his children. In our opinion, that simple analysis sufficed to justify examining the complaint under Article 8 of the Convention.

4. Reiterating its case-law, the Court accepts in paragraph 18 of its judgment that special diligence is required in cases relating to civil status “in view of the possible consequences which the excessive length of proceedings may have, notably on enjoyment of the right to respect for family life”. Moreover, in paragraph 22, the Court holds that, “having regard to what was at stake for the applicant (judicial separation and determination of the arrangements for custody of the children and access rights), the domestic courts failed to act with the special diligence required by Article 6 § 1 of the Convention in such cases”. Unfortunately, however, the Court did not draw the appropriate conclusions.

5. The foregoing considerations in the judgment support our view, since, without prejudging at this stage the decision we would have reached on the merits, we think that judicial proceedings lasting over eight years – in which custody and access rights in respect of young children were at issue – may have had harmful effects on the applicant’s relationship with his children and therefore on his family life.

[1] Notes by the Registry

1-2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[3] 3. Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis.

[1] Notes by the Registry

1. Protocol No. 9 came into force on 1 October 1994 and was repealed by Protocol No. 11.

2. Rules of Court B, which came into force on 2 October 1994, applied until 31 October 1998 to all cases concerning States bound by Protocol No. 9.

[2] 1. Note by the Registry. For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry.