CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 29 mars 2006

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font-size:14pt } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s60723A49 { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sC361C2D4 { width:13.2pt; display:inline-block } .s1CF55B85 { width:207.8pt; display:inline-block } .sDEA786DA { width:210.67pt; display:inline-block }       GRAND CHAMBER         CASE OF SCORDINO v. ITALY (No. 1)   (Application no. 36813/97)                     JUDGMENT       STRASBOURG   29 March 2006     In the case of Scordino v. Italy (no. 1), The European Court of Human Rights, sitting as a Grand Chamber composed of:   Luzius Wildhaber, President ,   Christos Rozakis,   Jean-Paul Costa,   Nicolas Bratza,   Boštjan M. Zupančič,   Lucius Caflisch,   Corneliu Bîrsan,   Karel Jungwiert,   Matti Pellonpää,   Margarita Tsatsa-Nikolovska,   Rait Maruste,   Stanislav Pavlovschi,   Lech Garlicki,   Alvina Gyulumyan,   Egbert Myjer,   Sverre Erik Jebens, judges ,   Mariavaleria del Tufo, ad hoc judge , and Lawrence E arly, Deputy Grand Chamber Registrar , Having deliberated in private on 1 July 2005 and 18 January 2006, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 36813/97) against the Italian Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Italian nationals, Giovanni, Elena, Maria and Giuliana Scordino (“the applicants”), on 21 July 1993. 2.     Having originally been designated by the initials G.S. and Others, the applicants subsequently agreed to the disclosure of their names. They were represented before the Court by Mr N. Paoletti, of the Rome Bar. The Italian Government (“the Government”) were represented by their Agent, Mr   I.M.   Braguglia, their co-Agent, Mr F. Crisafulli, and their Deputy co-Agent, Mr N. Lettieri. 3.     Under Article 1 of Protocol No. 1 and Article 6 of the Convention the applicants alleged that there had been an unjustified interference with their right to the peaceful enjoyment of their possessions and a breach of their right to a fair hearing within a reasonable time. 4.     The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5.     The application was allocated to the First Section of the Court (Rule   52 § 1 of the Rules of Court). Vladimiro Zagrebelsky, the judge elected in respect of Italy, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mariavaleria del Tufo to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 6.     On 27 March 2003, after a hearing on the admissibility and merits (Rule 54 § 3), the application was declared admissible by a Chamber of the First Section, composed of Christos Rozakis, President, Giovanni Bonello, Peer Lorenzen, Nina Vajić, Snejana Botoucharova, Elisabeth Steiner, judges, Mariavaleria del Tufo, ad hoc judge, and Søren Nielsen, Deputy Section Registrar. 7.     In its judgment of 29 July 2004 (“the Chamber judgment”), the Chamber decided, unanimously, to dismiss the Government’s preliminary objection and held unanimously that there had been a violation of Article 6 § 1 of the Convention on account of the length and unfairness of the proceedings. It also held that there had been a violation of Article 1 of Protocol No. 1 on account of an unjustified interference with the applicants’ right to the peaceful enjoyment of their possessions. 8.     On 26 October 2004 the Government requested, in accordance with Article 43 of the Convention and Rule 73, that the case be referred to the Grand Chamber. On 2 February 2005 a panel of the Grand Chamber accepted that request. 9.     The composition of the Grand Chamber was determined in accordance with the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 10.     The applicants and the Government each filed a memorial. In addition, third-party comments were received from the Polish, Czech and Slovakian Governments, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). The applicants replied to those comments (Rule 44 § 5). 11.     A hearing took place in public in the Human Rights Building, Strasbourg, on 29 June 2005 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Mr   N. Lettieri ,   Deputy co - Agent ; (b)     for the applicants Mr   N. Paoletti ,   Counsel , Mrs   A. Mari , Mrs   G. Paoletti , all of the Rome Bar,   Advisers .   The Court heard addresses by Mr Paoletti, Mrs Mari and Mr Lettieri, and Mr Lettieri’s replies to judges’ questions. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 12.     The applicants were born in 1959, 1949, 1951 and 1953 respectively and live in Reggio di Calabria. 13.     In 1992 the applicants inherited from Mr A. Scordino several plots of land in Reggio di Calabria, entered in the land register as folio 111, parcels 105, 107, 109 and 662. On 25 March 1970 Reggio di Calabria District Council had adopted a general development plan, which was approved by the Calabria Regional Council on 17 March 1975. The land in issue in the present application, an area of 1,786 sq. m designated as parcel 109, was made the subject of an expropriation permit under the general development plan with a view to the construction of housing on the land. The land was subsequently included in the zonal development plan approved by the Calabria Regional Council on 20 June 1979. A.     The expropriation of the land 14.     In 1980 Reggio di Calabria District Council decided that a cooperative society, Edilizia Aquila, would carry out building work on the land in question. In a decision of 13 March 1981, the administrative authorities granted the cooperative permission to occupy the land. 15.     On 30 March 1982, pursuant to Law no. 385/1980, Reggio di Calabria District Council offered an advance on the compensation payable for the expropriation, the amount having been determined in accordance with Law no. 865/1971. The sum offered, 606,560 Italian lire (ITL), was calculated according to the rules in force for agricultural land, using a value of ITL 340 per square metre as a basis, with the proviso that the final amount of compensation would be determined once a law had been enacted laying down new compensation criteria for building land. 16.     The offer was refused by Mr A. Scordino. 17.     On 21 March 1983 the Regional Council issued an expropriation order in respect of the land. 18.     On 13 June 1983 the District Council made a second offer of an advance, this time amounting to ITL 785,000. The offer was not accepted. 19.     In judgment no. 223 of 15 July 1983, the Constitutional Court declared Law no. 385/1980 unconstitutional on the ground that it made the award of compensation subject to the enactment of a future law. 20.     As a result of that judgment, Law no. 2359/1865, which provided that compensation for expropriation should correspond to the market value of the land in question, came back into force. 21.     On 10 August 1984 Mr A. Scordino served formal notice on the District Council to determine the final amount of compensation in accordance with Law no. 2359/1865. On 16 November 1989 he learned that Reggio di Calabria District Council had assessed the final amount at ITL   88,414,940 (ITL 50,000 per square metre) in an order of 6 October 1989. B.     Proceedings for the award of compensation for the expropriation 22.     On 25 May 1990, contesting the amount of compensation he had been awarded, Mr A. Scordino brought proceedings against the District Council and the cooperative in the Reggio di Calabria Court of Appeal. 23.     He argued that the amount determined by the District Council was ridiculously low in relation to the market value of the land and requested, among other things, to have the compensation calculated in accordance with Law no. 2359/1865. He also sought compensation for the period during which the land had been occupied before the expropriation order had been issued, and for the area of land (1,500 sq. m) that had become unusable as a result of the building work. 24.     Preparation of the case for hearing began on 7 January 1991. 25.     The cooperative gave notice of its intention to defend and raised an objection, arguing that it could not be considered a party to the proceedings. 26.     On 4 February 1991, as the District Council had still not given notice of its intention to defend, the Reggio di Calabria Court of Appeal declared it to be in default and ordered an expert assessment of the land. By an order of 13   February 1991, an expert was appointed and was given three months in which to submit his report. 27.     On 6 May 1991 the District Council gave notice of its intention to defend and raised an objection, arguing that it could not be considered a party to the proceedings. The expert agreed to his terms of reference and was sworn in. 28.     On 4 December 1991 the expert submitted a report. 29.     On 14 August 1992 Law no. 359 of 8 August 1992 (“Urgent measures aimed at stabilising public finances”) came into force. Section 5 bis of the Law laid down new criteria for calculating compensation for the expropriation of building land. The Law was expressly applicable to pending proceedings. 30.     Mr A. Scordino died on 30 November 1992. On 18 September 1993 the applicants declared their intention to continue the proceedings. 31.     On 4 October 1993 the Reggio di Calabria Court of Appeal appointed another expert and instructed him to assess the compensation for the expropriation according to the new criteria laid down in section 5 bis of Law no. 359/1992. 32.     The expert submitted his report on 24 March 1994, concluding that the land’s market value on the date of the expropriation had been ITL   165,755 per square metre. In accordance with the new criteria laid down in section 5 bis of Law no. 359/1992, the compensation due was ITL   82,890 per square metre. 33.     At a hearing on 11 April 1994, the parties asked for time to submit comments on the expert’s report. Counsel for the applicants produced a separate expert opinion and observed that the expert appointed by the court had omitted to calculate the compensation for the 1,500 sq. m of land that was not covered by the expropriation order but had become unusable as a result of the building work. 34.     A hearing was held on 6 June 1994 at which observations were submitted in reply. The next hearing, scheduled for 4 July 1994, was adjourned by the court of its own motion until 3 October 1994 and then until 10 November 1994. 35.     By an order of 29 December 1994, the court ordered a further expert assessment and adjourned the proceedings until 6 March 1995. However, the hearing was subsequently adjourned on several occasions as the investigating judge was unavailable. At the applicants’ request, the investigating judge was replaced on 29 February 1996 and the parties made their submissions at a hearing on 20 March 1996. 36.     In a judgment of 17 July 1996, the Reggio di Calabria Court of Appeal held that the applicants were entitled to compensation calculated according to section 5 bis of Law no. 359/1992, both for the land that had been formally expropriated and for the land that had become unusable as a result of the building work. It also held that the compensation thus determined should not be subject to the further 40% statutory deduction applicable where the owner of the expropriated land had not signed an agreement for its transfer ( cessione volontaria ), seeing that in the applicants’ case the land had already been expropriated when the Law had come into force. 37.     In conclusion, the Court of Appeal ordered the District Council and the cooperative to pay the applicants: (a)     ITL 148,041,540 (ITL 82,890 per square metre for 1,786 sq. m of land) in compensation for the expropriation; (b)     ITL 91,774,043 (ITL 75,012.50 per square metre for 1,223.45 sq. m) in compensation for the part of the land that had become unusable and was to be regarded as having been de facto expropriated; and (c)     compensation for the period during which the land had been occupied prior to its expropriation. 38.     Those amounts were to be index-linked and subject to interest until the date of settlement. 39.     On 20 December 1996 the cooperative appealed on points of law, arguing that it could not be considered a party to the proceedings. On 20 and 31   January 1997 respectively the applicants and the District Council likewise appealed. On 30 June 1997 the cooperative applied for a stay of execution of the Court of Appeal’s judgment. That application was dismissed on 8 August 1997. 40.     In a judgment of 3 August 1998, deposited with the registry on 7   December 1998, the Court of Cassation allowed the cooperative’s appeal, acknowledging that it was not a party to the proceedings as it had not formally been a party to the expropriation, although it had benefited from it. It upheld the remainder of the Reggio di Calabria Court of Appeal’s judgment. 41.     In the meantime, on 18 June 1997, the amount awarded by the Court of Appeal had been deposited at the National Bank. On 30 September 1997 tax was deducted from it at a rate of 20% in accordance with Law no.   413/1991. C.     The “Pinto” proceedings 42.     On 18 April 2002 the applicants applied to the Reggio di Calabria Court of Appeal under Law no. 89 of 24 March 2001, known as the “Pinto Act”, complaining about the excessive length of the above-described proceedings. The applicants asked the court to find that there had been a violation of Article 6 § 1 of the Convention and order the Italian State and the Ministry of Justice to compensate them for non-pecuniary damage, which they assessed at 50,000 euros (EUR), and the pecuniary damage that they considered they had sustained as a result of the application of Law no. 359/1992 to their case. 43.     In a decision of 1 July 2002, deposited with the registry on 27 July 2002, the Reggio di Calabria Court of Appeal found that the length of the proceedings had been excessive. It held as follows: “... The proceedings began on 24 May 1990 and ended on 7 December 1998. They were conducted at two levels of jurisdiction and were not particularly complex. It can be seen from the case-law of the European Court of Human Rights that three years is deemed to be an acceptable period for proceedings at first instance and two years at second instance. The applicants declared their intention to continue the proceedings as the heirs of Mr A. Scordino, who died in 1992, when a reasonable time had not yet been exceeded. Accordingly, the delays must be calculated only in respect of the subsequent period, and amount to three years and six months. It is not the applicants who are responsible for the delay, but rather the malfunctioning of the judicial system. The pecuniary damage alleged by the applicants has not been caused by the length of the proceedings and cannot therefore be compensated. Having regard to the foregoing, the applicants are entitled only to compensation for the non-pecuniary damage they have sustained on account of the length of the proceedings, that is, the prolonged uncertainty regarding the outcome of the proceedings and the distress generally experienced as a result of that uncertainty. In view of what was at stake, the amount to be awarded for non-pecuniary damage is EUR 2,450.” 44.     The Court of Appeal ordered the Ministry of Justice to pay the applicants a total sum of EUR 2,450 for non-pecuniary damage alone. With regard to the government, the Court of Appeal considered that they could not be considered as a party to the proceedings. 45.     Regarding the apportionment of the legal costs, the Court of Appeal ordered the Ministry of Justice to pay EUR 1,500 and the applicants to pay the remaining EUR 1,500. 46.     The applicants did not appeal to the Court of Cassation. The Court of Appeal’s decision became final on 26 October 2003. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The expropriation 47.     Section 39 of Law no. 2359/1865 provided that, where land was expropriated, the compensation to be paid should correspond to its market value at the time of the expropriation. 48.     Article 42 of the Constitution, as interpreted by the Constitutional Court (see, inter alia , judgment no. 138 of 6 December 1977), guarantees the payment of compensation for expropriation, in an amount lower than the market value of the land. 49.     Law no. 865/1971 (supplemented by section 4 of Legislative Decree no.   115/1974, which subsequently became Law no. 247/1974, and by section 14 of Law no. 10/1977) laid down new criteria: compensation for any land, whether it was agricultural or building land, should be paid as though it were agricultural land. 50.     In judgment no. 5 of 25 January 1980, the Constitutional Court declared Law no. 865/1971 unconstitutional on the ground that it afforded the same treatment to two very different situations by providing for the same form of compensation for building and agricultural land. 51.     The scope of a decision of the Constitutional Court declaring a law illegal is not limited to the case in question but is erga omnes . It is of retrospective effect in that the law declared unconstitutional can no longer produce any effects or be applied from the day after the publication of the decision (Article 136 of the Constitution taken in conjunction with section 1 of Constitutional Act no. 1 of 1948 and section 30(3) of Law no. 87/1953). The Constitutional Court has often made explicit the retrospective effect of declarations of unconstitutionality (see, inter alia , judgment no. 127 of 15 December 1966). It has indicated in this connection that a declaration of unconstitutionality can be equated with a straightforward annulment, since it makes the law in question unconstitutional from the time of its entry into force, annuls it and makes it inapplicable to any non-final situation (and to the final situations defined by law). Furthermore, no one at all, in particular the courts, may rely on provisions that have been declared unconstitutional to assess a given situation, even if that situation arose prior to the declaration of unconstitutionality (see, on this point, judgment no. 49 of 2   April 1970 and decisions no. 271 of 1985, no. 329 of 1985 and no. 94 of 1986). A similar decision has been given by the Court of Cassation, declaring that “where a law has been declared unconstitutional it cannot in any circumstances be applied, given that it must be considered as having never existed, and that a decision declaring a law unconstitutional has a retrospective effect regarding any non-final situation” (Court of Cassation, Section II, 23 June 1979; Section V, 15 June 1992). 52.     When the Constitutional Court declares a law unconstitutional the provisions that had previously been applicable come back into force ( reviviscenza ), unless they have also been declared unconstitutional. 53.     After judgment no. 5/1980 had declared Law no. 865/1971 unconstitutional, Parliament enacted Law no. 385 of 29 July 1980, which reaffirmed, but this time on a provisional basis, the criteria that had been declared unconstitutional. The Law provided that compensation should be paid in the form of an advance, to be supplemented by a payment calculated on the basis of a subsequent law that would lay down specific compensation criteria for building land. 54.     In judgment no. 223 of 15 July 1983, the Constitutional Court declared Law no. 385/1980 unconstitutional on the ground that it made the award of compensation for the expropriation of building land subject to the enactment of a future law and that it reintroduced – even if only on a provisional basis – compensation criteria that had been declared unconstitutional. In that connection the Constitutional Court reiterated that the legislature had to accept that a law that had been declared illegal stopped producing its effects immediately, and stressed the need to draw up provisions for substantial awards of compensation for expropriation ( serio ristoro ). 55.     As a result of judgment no. 223 of 1983, section 39 of Law no.   2359/1865 came back into force. Consequently, the compensation payable for building land was to correspond to the land’s market value (see, for example, Court of Cassation, Section I, judgment no. 13479 of 13   December 1991; Section I, judgment no. 2180 of 22 February 1992; and plenary court, judgment no. 3815 of 29 August 1989). 56.     Section 5 bis of Law no. 359 of 8 August 1992 introduced a “temporary, exceptional and urgent” measure aimed at stabilising public finances, to remain valid until structural measures were adopted. That provision applied to any expropriation under way and to any pending proceedings related thereto. Section 5 bis of Law no. 359/1992, which was published in the Official Gazette on 13 August 1992, came into force on 14   August 1992. 57.     Section 5 bis provides that the compensation payable for the expropriation of building land is to be calculated using the following formula: market value of the land plus the total of annual ground rent multiplied by the last ten years, divided by two, minus a 40% deduction. 58.     In such cases, the compensation corresponds to 30% of the market value. That amount is subject to tax, deducted at source at a rate of 20% (in accordance with section 11 of Law no. 413/1991). 59.     The 40% deduction can be avoided if the basis for the expropriation is not an expropriation order but a “voluntary agreement” for the transfer of the land or, as in the instant case, if the expropriation took place before section 5 bis came into force (see the Constitutional Court’s judgment no.   283 of 16 June 1993). In such cases, the resulting compensation corresponds to 50% of the market value. Again, that amount is subject to tax at a rate of 20% (see paragraph 58 above). 60.     The Constitutional Court has held section 5 bis of Law no. 359/1992 and its retrospective application to be compatible with the Constitution (judgment no. 283 of 16 June 1993, and judgment no. 442 of 16 December 1993) on account of the urgent and temporary nature of the Law. 61.     The Code of Expropriation Provisions (Presidential Decree no.   327/2001, subsequently modified by Legislative Decree no. 302/2002), which came into force on 30 June 2003, codified the existing provisions and the principles established by the relevant case-law in respect of expropriation. Article 37 of the Code reiterates the main criteria for calculating compensation for expropriation set forth in section 5 bis of Law no.   359/1992. B.     The complaint concerning the length of the proceedings 1.     Law no. 89 of 24 March 2001 (the “Pinto Act”) 62.     Award of just satisfaction in the event of a breach of the requirement to dispose of proceedings within a reasonable time and amendment to Article 375 of the Code of Civil Procedure Chapter II – Just satisfaction Section 2 – Entitlement to just satisfaction “(1)     Anyone sustaining pecuniary or non-pecuniary damage as a result of a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, on account of a failure to comply with the ‘reasonable time’ requirement in Article 6 § 1 of the Convention, shall be entitled to just satisfaction. (2)     In determining whether there has been a violation, the court shall have regard to the complexity of the case and, in the light thereof, the conduct of the parties and of the judge deciding procedural issues, and also the conduct of any authority required to participate in or contribute to the resolution of the case. (3)     The court shall assess the quantum of damage in accordance with Article 2056 of the Civil Code and shall apply the following rules: (a)     only damage attributable to the period beyond the reasonable time referred to in subsection (1) may be taken into account; (b)     in addition to the payment of a sum of money, reparation for non-pecuniary damage shall be made by giving suitable publicity to the finding of a violation.” Section 3 – Procedure “(1)     Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under Article 11 of the Code of Criminal Procedure to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending. (2)     The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by Article 125 of the Code of Civil Procedure. (3)     The application shall be made against the Minister of Justice where the alleged violation has taken place in proceedings in the ordinary courts, the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners. In all other cases, the application shall be made against the Prime Minister. (4)     The court of appeal shall hear the application in accordance with Articles 737 et seq. of the Code of Civil Procedure. The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of State Counsel [ Avvocatura dello Stato ] at least fifteen days prior to the date of the hearing before the Chamber. (5)     The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in section 2 is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing. The parties may lodge memorials and documents up until five days before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties. (6)     The court shall deliver a decision within four months after the application is lodged. An appeal shall lie to the Court of Cassation. The decision shall be enforceable immediately. (7)     To the extent that resources permit, payment of compensation to those entitled shall commence on 1 January 2002.” Section 4 – Time-limits and procedures for lodging applications “A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within six months from the date when the decision ending the proceedings becomes final. Claims lodged after that date shall be time-barred.” Section 5 – Communications “If the court decides to allow an application, its decision shall be communicated by the registry to the parties, to State Counsel at the Court of Audit to enable him to start an investigation into liability, and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity.” Section 6 – Transitional provisions “(1)     Within six months after the entry into force of this Act, anyone who has lodged an application with the European Court of Human Rights in due time complaining of a violation of the ‘reasonable time’ requirement contained in Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, shall be entitled to lodge a claim under section 3 hereof provided that the application has not by then been declared admissible by the European Court. In such cases, the application to the court of appeal must state when the application to the said European Court was made. (2)     The registry of the relevant court shall inform the Minister for Foreign Affairs without delay of any claim lodged in accordance with section 3 and within the period laid down in subsection (1) of this section.” Section 7 – Financial provisions “(1)     The financial cost of implementing this Act, which is put at 12,705,000,000   Italian lire from 2002, shall be met by releasing funds entered in the three-year budget 2001-03 in the chapter concerning the basic current-liability estimates from the ‘special fund’ in the year 2001 forecast of the Ministry of the Treasury, Economy and Financial Planning. Treasury deposits shall be set aside for that purpose. (2)     The Ministry of the Treasury, Economy and Financial Planning is authorised to make the appropriate budgetary adjustments by decree.” 2.     Extracts from Italian case-law (a)     The departure from precedent of 2004 63.     On appeal from decisions delivered by the courts of appeal in “Pinto” proceedings, the Court of Cassation, sitting as a full court ( Sezioni Unite ), gave four judgments (nos. 1338, 1339, 1340 and 1341) of 27   November 2003, the texts of which were deposited with the registry on 26   January 2004, quashing the appeal court’s decision and remitting the case for a rehearing. It held that “the case-law of the Strasbourg Court is binding on the Italian courts regarding the application of Law no. 89/2001”. In its judgment no. 1340 it affirmed, inter alia , the principle that “the court of appeal’s determination of non-pecuniary damage in accordance with section 2 of Law no. 89/2001, although inherently based on equitable principles, must be made in a legally defined framework since reference has to be made to the amounts awarded, in similar cases, by the Strasbourg Court. Some divergence is permissible, within reason”. 64.     Extracts from the plenary Court of Cassation’s judgment no. 1339 deposited with the registry on 26 January 2004 read as follows: “2.     The present application poses the fundamental question of what legal effect must be given – in implementing Law no. 89 of 24 March 2001, and in particular in determining the non-pecuniary damage arising out of the breach of the reasonable length of proceedings requirement – to the judgments of the European Court of Human Rights, whether considered generally as interpretative guidelines which the said Court has laid down with regard to the consequences of the said violation, or with reference to a specific case in which the European Court has already had occasion to give a judgment on the delay in reaching a decision. ... As stipulated in section 2(1) of the said Law, the legal fact which gives rise to the right to the just satisfaction that it provides for is constituted by the ‘violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, on account of a failure to comply with the “reasonable time” requirement in Article 6 § 1 of the Convention’. In other words, Law no. 89/2001 identifies the fact constituting the right to compensation by reference to a specific provision of the European Convention on Human Rights. This Convention instituted a Court (the European Court of Human Rights, with its seat in Strasbourg) to ensure compliance with the provisions contained therein (Article 19). Accordingly, the competence of the said Court to determine, and therefore to interpret, the significance of the said provisions must be recognised. As the fact constituting the right conferred by Law no. 89/2001 consists of a violation of the Convention, it is for the Strasbourg Court to determine all the elements of such a legal fact, which thus ends by being ‘brought into conformity’ by the Court, whose case-law is binding on the Italian courts in so far as the application of Law no. 89/2001 is concerned. It is not necessary therefore to pose the general problem of the relationships between the Convention and the internal judicial system, which the Advocate-General [ Procuratore Generale ] has amply discussed in court. Whatever opinion one may have about that controversial issue and therefore about the place of the Convention in the context of the sources of domestic law, it is certain that the direct implementation in the Italian judicial system of a provision of the Convention, established by Law no.   89/2001 (that is, by Article 6 § 1 in the part relating to ‘reasonable time’), cannot diverge from the interpretation which the European Court gives to the same provision. The opposite argument, which would permit a substantial divergence between the application accorded to Law no. 89/2001 in the national system and the interpretation given by the Strasbourg Court to the right to the reasonable length of proceedings, would deprive the said Law no. 89/2001 of any justification and cause the Italian State to violate Article 1 of the Convention, according to which ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’ (including the said Article 6, which provides for the right to have a case decided within a reasonable time). The reason behind the enactment of Law no. 89/2001 was the need to provide a domestic judicial remedy against violations in respect of the duration of proceedings, so as to give effect to the subsidiary character of intervention on the part of the Strasbourg Court, expressly provided for by the Convention (Article 35: ‘The Court may only deal with the matter after all domestic remedies have been exhausted ...’). The European system for the protection of human rights is founded on the said principle of subsidiarity. From it derives the duty of the States which have ratified the Convention to guarantee to individuals the protection of the rights recognised by the Convention, above all in their own internal order and vis-à-vis the organs of the national judicial system. And this protection must be ‘effective’ (Article 13 of the Convention), that is, of a kind to remedy the claim without the need for recourse to the Strasbourg Court. The domestic remedy introduced by Law no. 89/2001 did not previously exist in the Italian system, with the consequence that applications against Italy in respect of a violation of Article 6 of the Convention had ‘clogged’ (the term used by rapporteur Follieri in the sitting of the Senate of 28 September 2000) the European Court. The Strasbourg Court observed, prior to Law no. 89/2001, that the said failures on the part of Italy to comply ‘reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy. This accumulation of breaches accordingly constitutes a practice that is incompatible with the Convention’ (see the four judgments of the Court delivered on 28 July 1999 in Bottazzi , Di Mauro , Ferrari and A.P .). Law no. 89/2001 constitutes the domestic remedy to which a ‘victim of a violation’ (as defined by Article 34 of the Convention) of Article 6 (failure to comply with the reasonable-time requirement) must have recourse before applying to the European Court to claim the ‘just satisfaction’ provided for in Article 41 of the Convention, which, when the violation exists, is only awarded by the Court ‘if the internal law of the High Contracting Party concerned allows only partial reparation to be made’. Law no. 89/2001 has therefore allowed the European Court to declare inadmissible applications lodged with it (including before the Act was passed) and aimed at obtaining the just satisfaction provided for in Article 41 of the Convention for the excessive length of proceedings (see Brusco v. Italy , decision of 6 September 2001). This mechanism for implementation of the Convention and observance of the principle of subsidiarity in respect of interventions of the European Court of Strasbourg does not operate, however, in cases in which the Court holds that the consequences of the established violation of the Convention have not been redressed by domestic law or that this has been done only ‘partially’, because in such an event the said Article 41 provides for the intervention of the European Court to protect the ‘victim of the violation’. In such cases an individual application to the Strasbourg Court on the basis of Article 34 of the Convention is admissible (see Scordino v. Italy , decision of 27 March 2003) and the Court acts directly to protect the rights of the victim whom it considers not to have been adequately protected by domestic law. The judge of the adequacy or inadequacy of the protection that the victim has had from domestic law is, obviously, the European Court, whose duty it is to apply Article 41 of the Convention to ascertain whether, in the presence of a violation of a provision of the Convention, the internal law has been able to redress fully the consequences of this violation. The argument whereby, in applying Law no. 89/2001, the Italian courts may follow a different interpretation from that which the European Court has given to the provisions of Article 6 of the Convention (violation of which is the fact giving entitlement to the right to compensation attributed by the said national law) implies that the victim of the violation, if he or she receives reparation at national level considered inadequate by the European Court, must obtain the just satisfaction provided for in Article 41 of the Convention from the latter Court. This would defeat the purpose of the remedy provided for in Italian law by Law no. 89/2001 and entail a violation of the principle of the subsidiarity of the intervention of the Strasbourg Court. It is the