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You are here: BAILII >> Databases >> European Court of Human Rights >> NIBBIO v. ITALY - 12854/87 [1992] ECHR 7 (26 February 1992) URL: http://www.bailii.org/eu/cases/ECHR/1992/7.html Cite as: [1992] ECHR 7

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In the case of Nibbio 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. Ryssdal, President,

Mr Thór Vilhjálmsson,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr B. Walsh,

Mr C. Russo,

Mr A. Spielmann,

Mr N. Valticos,

Mr S.K. Martens,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 28 October 1991 and

24 January 1992,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 28/1991/280/351. 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 on 8 March 1991 by the

European Commission of Human Rights ("the Commission"), within the

three-month period laid down by Article 32 para. 1 and Article 47 of

the Convention (art. 32-1, art. 47). It originated in an

application (no. 12854/87) against the Italian Republic lodged with

the Commission under Article 25 (art. 25) by an Italian national,

Mrs Silvana Nibbio, on 3 April 1987.

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 and designated the lawyer

who would represent her (Rule 30).

3. On 23 April 1991 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 Gilberti,

Nonnis, Trotto, Borgese, Biondi, Macaluso, Monaco, Cattivera, Seri,

Manunza, Gori, Casadio, Testa, Lestini, Covitti, Zonetti, Simonetti

and Dal Sasso* should be heard by the same Chamber.

_______________

* Cases nos. 19/1991/271/342; 23/1991/275/346;

26/1991/278/349; 29/1991/281/352 to 32/1991/284/355;

34/1991/286/357; 35/1991/287/358; 37/1991/289/360;

45/1991/297/368; 52/1991/304/375 to 57/1991/309/380;

60/1991/312/383

_______________

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 J. Pinheiro Farinha, Mr L.-E. Pettiti,

Mr B. Walsh, Mr N. Valticos and Mr S.K. Martens (Article 43 in fine

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

Subsequently, Mr A. Spielmann, substitute judge, replaced

Mr Pinheiro Farinha, who had resigned and whose successor at the

Court had taken up his duties before the hearing (Rules 2 para. 3

and 22 para. 1).

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's lawyer on the organisation of the

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

in consequence, the Registrar received the Government's memorial on

17 July 1991 and the applicant's memorial on 25 July. By a letter

received on 22 September, the Secretary to the Commission informed

the Registrar that the Delegate would submit oral observations.

6. On 29 August the Commission had produced the file on the

proceedings before it, as requested by the Registrar on the

President's instructions.

7. In accordance with the decision of the President - who had

given the applicant leave to use the Italian language

(Rule 27 para. 3) -, the hearing took place in public in the Human

Rights Building, Strasbourg, on 28 October 1991. The Court had held

a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr G. Raimondi, magistrato,

seconded to the Diplomatic Legal

Service of the Ministry of Foreign Affairs, Co-Agent,

Mr G. Manzo, magistrato,

seconded to the Ministry of Justice,

Mrs A. Passannanti, magistrato,

seconded to the Ministry of Justice, Counsel;

(b) for the Commission

Mr J.A. Frowein, Delegate;

(c) for the applicant

Mr G. Angelozzi, avvocato, Counsel,

Mr M. de Stefano, avvocato, Adviser.

The Court heard addresses by Mr Raimondi and Mr Manzo for the

Government, by Mr Frowein for the Commission and by Mr Angelozzi and

Mr de Stefano for the applicant, as well as their answers to its

questions.

8. On 14 October the Government had lodged their observations

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

Convention) (art. 50); on 5 November the Commission filed its

observations on those claims.

AS TO THE FACTS

9. Mrs Silvana Nibbio is an Italian national and resides at

Modene Grande. She is unemployed. The facts established by the

Commission pursuant to Article 31 para. 1 (art. 31-1) of the

Convention are as follows (paragraphs 16-19 of its report):

"16. On 20 October 1982 the applicant instituted proceedings

against the Istituto Nazionale della Previdenza Sociale (INPS) in

the Rome magistrate's court (pretore) to obtain a declaration of her

right to a disability pension.

17. The investigation commenced at the hearing of

22 February 1983, when the magistrate's court called for a medical

opinion, appointed the expert and summoned him to a hearing

on 21 June 1983. That hearing did not take place, and the expert's

failure to appear prompted the adjournment of the hearings

of 3 April and 2 October 1984. At the next hearing (date not

indicated in the records), the expert was sworn in and given sixty

days as from 10 June 1985 to lodge the medical opinion. As the

deadline was not met, the hearing of 6 November 1985 was postponed.

On 30 November 1985 the medical opinion was lodged with the registry

and at the close of the hearing on 12 February 1986 the magistrate's

court ordered the INPS to pay the pension claimed, but ruled that

the applicant's entitlement thereto ran from 1 June 1985 only and

decided that the parties should pay their own costs. The text of

the decision was lodged with the registry on 15 February 1986.

18. On 20 October 1986 the applicant appealed against the

decision in so far as it fixed the commencement of her pension

entitlement at a later date than the introduction of her application

and ordered the parties to pay their own costs.

19. On 23 October 1986 the presiding judge of the Rome District

Court fixed the hearing before the appropriate chamber of the court

for 29 November 1988. However, the hearing was postponed

to 1 June 1989 owing to the transfer of the investigating judge.

...

20. ... ."

10. According to the information provided to the European Court

by the participants in the Strasbourg proceedings, the District

Court dismissed the applicant's appeal on 1 June 1989. She then

appealed to the Court of Cassation from the District Court's

decision, which had been lodged with the registry on 7 October 1989.

A hearing took place on 27 September 1991, but at the date of the

adoption of the present judgment it is not known whether and how the

Court of Cassation ruled.

PROCEEDINGS BEFORE THE COMMISSION

11. Mrs Nibbio lodged her application with the Commission on

3 April 1987. She complained of the length of the civil proceedings

brought by her and relied on Article 6 para. 1 (art. 6-1) of the

Convention.

12. On 11 May 1990 the Commission declared the application

(no. 12854/87) admissible. In its report of 15 January 1991

(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 228-A

of Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

13. At the hearing the Government confirmed the submission put

forward in their memorial, in which they requested the Court to hold

"that there [had] been no violation of the Convention in the present

case".

AS TO THE LAW

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

14. The applicant claimed that her civil action had not been

tried within a "reasonable time" as required under 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 disputed this view, whereas the Commission accepted

it.

15. The period to be taken into consideration began on

20 October 1982 when the proceedings were instituted against the

INPS in the magistrate's court. As far as the Court is aware, it

has not yet ended since Mrs Nibbio's appeal is apparently still

pending in the Court of Cassation.

16. The reasonableness of the length of proceedings is to be

assessed 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.

17. The Government invoked the excessive workload of the

relevant courts and the latter's duty in principle to deal with

cases in the order in which they were registered. In addition the

applicant had never requested that the hearings be held at shorter

intervals.

According to the applicant, the case was a simple one and her own

conduct could have had only a negligible effect.

18. The Court stresses that special diligence is necessary in

employment disputes, which include pensions disputes (see, inter

alia, mutatis mutandis, the Vocaturo v. Italy judgment of

24 May 1991, Series A no. 206-C, p. 32, para. 17). Italy moreover

acknowledged this by amending, in 1973, the special procedure laid

down in this field and by introducing, in 1990, emergency measures

intended to speed up the conduct of such proceedings.

The Government pleaded the backlog of cases in the relevant courts,

but Article 6 para. 1 (art. 6-1) imposes on the Contracting States

the duty to organise their legal systems in such a way that their

courts can meet each of its requirements (see the same judgment,

ibid.).

In this case the magistrate's court took more than three years to

give judgment; it does not appear to have displayed the vigilance

necessary to ensure that the expert appointed by it carried out his

task within the period prescribed (see the Capuano v. Italy judgment

of 25 June 1987, Series A no. 119, p. 13, para. 30).

The applicant did not appeal from the judgment of 12 February 1986

until the following 20 October, for which period the State is not

responsible, but the appeal proceedings remained dormant for

approximately twenty-five months. On 23 October 1986 the President

of the Rome District Court set down the first hearing before the

competent chamber for 29 November 1988 and it does not appear from

the evidence that any investigative measures were taken prior to

that hearing; the transfer of the investigating judge led to an

additional delay of more than six months.

Finally, according to the information supplied by the participants

in the Strasbourg proceedings, the Court of Cassation had still not

given judgment at the date of the adoption of the present judgment.

19. In these circumstances and in view of what was at stake in

the proceedings for Mrs Nibbio, the Court cannot regard as

"reasonable" in this instance a lapse of time which is already more

than nine years.

There has therefore been a violation of Article 6 para. 1

(art. 6-1).

II. APPLICATION OF ARTICLE 50 (art. 50)

20. According to 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."

A. Damage

21. The applicant claimed in the first place 8,000,000 Italian

lire for damage.

In the Government's contention, she sustained no pecuniary damage;

she had moreover secured an order that her disability pension be

paid to her with effect from 1 June 1985. As to non-pecuniary

damage, a finding of a violation would constitute sufficient just

satisfaction.

22. There is no evidence that the violation found caused

Mrs Nibbio pecuniary damage. On the other hand, she must have

suffered a degree of non-pecuniary damage for which the Court,

making an assessment on an equitable basis, awards her

6,000,000 lire.

B. Costs and expenses

23. The applicant also sought 3,000,000 lire for costs and

expenses incurred before the Convention organs.

Having regard to the evidence at its disposal and to its case-law in

this field, the Court awards her 2,000,000 lire under this head.

C. Interest

24. Mrs Nibbio requested finally that interest be paid on the

sums awarded, at the statutory rate in force in her country and in

respect of the period running from the delivery of the present

judgment to the payment of such sums by the Italian authorities.

The Commission invited the Court to fix for the Government

- who did not give their opinion - a compulsory time-limit for

executing the judgment and to make provision for the payment of

interest in the event of their failure to comply therewith.

25. The first of these proposals is in conformity with a

practice followed by the Court since October 1991.

As to the second, the Court does not consider it appropriate to

require any payment of interest in this instance.

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, 6,000,000 (six million) Italian lire for

non-pecuniary damage and 2,000,000 (two million) lire for costs and

expenses;

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 1992.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar