CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 avril 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }        In the case of Paccione v. Italy (1),         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 Rules of Court A (2), as a Chamber composed of the following judges:         Mr R. Ryssdal, President,       Mr R. Bernhardt,       Mr C. Russo,       Sir John Freeland,       Mr L. Wildhaber,       Mr G. Mifsud Bonnici,       Mr B. Repik,       Mr P. Jambrek,       Mr K. Jungwiert,   and also of Mr H. Petzold, Registrar,         Having deliberated in private on 27 January and 22 March 1995,         Delivers the following judgment, which was adopted on the last-mentioned date: _______________ Notes by the Registrar   1.   The case is numbered 49/1994/496/578.   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.   2.   Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9).   They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently. _______________   PROCEDURE   1.     The case was referred to the Court by the Italian Government ("the Government") on 12 September 1994, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention.   It originated in an application (no. 16753/90) against the Italian Republic lodged with the European Commission of Human Rights ("the Commission") under Article 25 (art. 25) by an Italian national, Mr Francesco Paccione, on 24 February 1989.         The Government's application referred to Articles 44, 45 and 48 (art. 44, art. 45, art. 48) and to the declaration whereby Italy recognised the compulsory jurisdiction of the Court (Article 46) (art. 46).   The object of the application 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) of the Convention.   2.     In response to the enquiry made in accordance with Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).   The lawyer was given leave by the President to use the Italian language (Rule 27 para. 3).   3.     The Chamber to be constituted 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 24 September 1994, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr R. Bernhardt, Sir John Freeland, Mr L. Wildhaber, Mr G. Mifsud Bonnici, Mr B. Repik, Mr P. Jambrek and Mr K. Jungwiert (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).   4.     As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Government, the applicant's lawyer and the Delegate of the Commission 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 25 November 1994 and the applicant's memorial on 13 December 1994.   The Delegate of the Commission did not submit any written observations.   On 9 January 1995 the applicant lodged his claims for just satisfaction.   5.     On 22 November 1994 the Commission had produced the file on the proceedings before it, as requested by the Registrar on the President's instructions.   6.     In accordance with the President's decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 24 January 1995.   The Court had held a preparatory meeting beforehand. Shortly before the hearing, the applicant's lawyer, Mr Rocchio, informed the registry that he would not be present.         There appeared before the Court:   (a)    for the Government         Mr G. Raimondi, magistrato, on secondment to        the Diplomatic Legal Service,        Ministry of Foreign Affairs,                          Co-Agent;   (b)    for the Commission         Mrs J. Liddy,                                          Delegate.         The Court heard addresses by Mrs Liddy and Mr Raimondi.   AS TO THE FACTS   7.     Mr Francesco Paccione, a retired district medical officer born in 1905, lives in San Remo.   8.     On 1 March 1980 San Remo District Council communicated to him its decision determining the amount of his ordinary retirement pension. The applicant claims that he applied to the Court of Audit on 7 April 1980, complaining that the assessment did not take account of all the relevant factors.   In a letter of 11 April 1985 he asked for his application to be dealt with speedily.   This request was registered on 18 April 1985 and it was listed on the 20th.   On 24 April 1985 the Court of Audit asked the relevant ministry for the applicant's administrative file, which was transmitted to it on 13 December 1985.   9.     On 14 April 1989 the Court of Audit set the case down for hearing on 9 June, and directed that all documents were to be submitted by 20 May 1989 at the latest.   The applicant was notified of these dates on 19 May 1989 and informed the court that he could not keep to them. He asked for new time-limits to be fixed so that he could instruct counsel, which he did, according to the Government, on 19 October 1989.   10.    On 3 July 1990 the applicant's lawyers successfully requested that a hearing be set down for 19 April 1991.   On the appointed day they were absent abroad for professional reasons, and the lawyer they had briefed to stand in for them requested an adjournment without their knowledge.         On their return they asked for the case to be tried as quickly as possible.   11.    At the close of the hearing held on 11 March 1992 the Court of Audit, noting that the application had not been served on the Treasury, ruled that this procedural defect made it inadmissible.   The text of the judgment was deposited in the registry on 4 March 1993.   PROCEEDINGS BEFORE THE COMMISSION   12.    Mr Paccione applied to the Commission on 24 February 1989. Relying on Article 6 para. 1 (art. 6-1) of the Convention, he complained of the length of the trial of his action in the Court of Audit.   13.    The Commission declared the application (no. 16753/90) admissible on 12 January 1994.   In its report of 11 May 1994 (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 (1). _______________ 1.   Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 315-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 BY THE GOVERNMENT TO THE COURT   14.    In their memorial the Government asked the Court to hold that there had been no violation of the Convention in the case.   AS TO THE LAW   I.     ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE       CONVENTION   15.    The applicant complained of the length of the proceedings in the Court of Audit.   He alleged a violation of Article 6 para. 1 (art. 6-1) of the Convention, under which,         "In the determination of his civil rights and obligations ...,       everyone is entitled to a ... hearing within a reasonable time       by [a] ... tribunal ..."   16.    The Government contested this claim, whereas the Commission upheld it.   17.    Mr Paccione contended that the period to be taken into consideration had begun on 7 April 1980 (see paragraph 8 above), not on 11 April 1985 as the Government had argued.         The Court merely notes that even after being invited by it to submit evidence supporting this assertion, the applicant did not prove that he had applied to the Court of Audit in 1980.   Only his letter of 11 April 1985 was registered and listed by the registry of that court (see paragraph 8 above).   This latter date therefore marked the beginning of the proceedings, which ended on 4 March 1993, when the judgment dismissing his application was made public on being deposited in the registry (see, as the most recent authority, the Muti v. Italy judgment of 23 March 1994, Series A no. 281-C, p. 56, para. 12).   They thus lasted nearly seven years and eleven months.   18.    The reasonableness of the length of proceedings is to be determined 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.   19.    The Government pleaded the applicant's conduct and the complexity of the case.         They argued that Mr Paccione had contributed to slowing down the proceedings by requesting two adjournments and that it ill became him now to complain to the Court of an infringement of his right to a speedy hearing of his case.         The lapse of time between the lodging of the application and the first hearing (from 11 April 1985 to 9 June 1989) had been due to the need to retrace the history of Mr Paccione's civilian and military service, which had proved to be a very time-consuming task.   20.    Like the Delegate of the Commission, the Court considers that the first adjournment was justified on account of the short interval between the date on which the applicant received notification that a hearing had been set down (see paragraph 9 above) and the last day on which he could have lodged documents for that hearing (scarcely twenty-four hours, from 19 to 20 May 1989).         The second adjournment did, admittedly, cause a delay of just under eleven months.         As regards the complexity of the case, the Court accepts that the authorities may have experienced difficulties in collecting the documents evidencing the applicant's service record.   However, that is not relevant in the instant case, since the Court of Audit waited until 11 March 1992 before dismissing the application on the sole ground that it had not been served on the Treasury.   As this was a condition of admissibility, the Court of Audit should have noticed immediately that it had not been satisfied.   The investigation was therefore unnecessary.   21.    In the light of the above considerations, the Court concludes that there has been a violation of Article 6 para. 1 (art. 6-1) of the Convention in the present case.   II.    APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION   22.    Under Article 50 (art. 50) of the Convention,         "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."   23.    On 9 January 1995 Mr Paccione's lawyer filed with the registry his client's claims in respect of damage sustained.   He also sought reimbursement of costs and expenses.   24.    The Government argued that these claims were inadmissible as being out of time.   25.    The Court notes that Rule 50 para. 1 provides: "Any claims which the applicant may wish to make under Article 50 (art. 50) of the Convention shall ... be set out in his memorial or, if he does not submit a memorial, in a special document filed at least one month before the date [of] ... the hearing."   However, Mr Rocchio did not submit claims for just satisfaction either in his memorial or even before the final limit of one month before the hearing, despite repeated reminders by the registry.         The time allowed in this case for submission of these claims appears sufficiently long; they must therefore be dismissed as being out of time.   FOR THESE REASONS, THE COURT UNANIMOUSLY   1.     Holds that there has been a breach of Article 6 para. 1       (art. 6-1) of the Convention;   2.     Dismisses the claim for just satisfaction.         Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 27 April 1995.   Signed Rolv RYSSDAL       President   Signed: Herbert PETZOLD       Registrar