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

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sFEE8C148 { width:13.68pt; display:inline-block } .s84D0D60A { width:8.36pt; display:inline-block } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s2ED81498 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sAF1F3329 { margin-top:12pt; margin-left:19.85pt; margin-bottom:12pt; text-indent:-19.85pt; page-break-inside:avoid } .s275CCCF2 { width:5.86pt; text-indent:0pt; display:inline-block } .s97899703 { width:218.79pt; text-indent:0pt; display:inline-block } .s590A3EF4 { margin-top:12pt; margin-left:19.85pt; margin-bottom:0pt; text-indent:-19.85pt } .sBA342AAB { width:18.12pt; text-indent:0pt; display:inline-block } .s7AA0C532 { width:13.35pt; text-indent:0pt; display:inline-block } .s63B06C77 { width:35.3pt; text-indent:0pt; display:inline-block } .s16935426 { margin-top:36pt; margin-bottom:30pt; text-align:justify; font-size:14pt } .sF11CDCAF { margin-top:30pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .sAA8DEB86 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s64129EAB { margin-top:18pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt; text-align:justify } .s9AA12E20 { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify } .s5E062AC1 { margin-top:0pt; margin-left:21.25pt; margin-bottom:0pt; text-indent:7.1pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s5752D6FA { font-family:Arial; font-weight:bold; font-variant:small-caps } .s777FF9C { margin-top:0pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s563E2080 { margin-top:6pt; margin-left:21.25pt; margin-bottom:0pt; text-indent:7.1pt; text-align:center; font-size:10pt } .s14AE285D { margin-top:0pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s8A9F351B { margin-top:12pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s7E121DAC { margin-top:24pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s988F61DE { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sD2CEF84A { margin-top:18pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s360DA689 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s197FB613 { margin-top:6pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s3F88E4B3 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s91F6AE57 { font-family:Arial; font-size:10pt; font-weight:bold } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s893489D0 { margin-top:24pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt; text-align:justify } .s3C0142D3 { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s507703F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super } .s804EF768 { margin-top:24pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s1FDC4C78 { margin-top:30pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt; text-align:justify } .sA6CAF0 { margin-top:30pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify } .sCBC6AB24 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify } .sCD75E457 { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-after:avoid } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sB6F98828 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s39A3E02A { margin-top:12pt; margin-left:31.75pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9C156EF7 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s8B80EBE7 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify } .s6EEABFBA { margin-top:18pt; margin-left:31.75pt; margin-bottom:6pt; text-align:justify; font-size:10pt } .s25DEE6FC { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid } .s8B3E1CD8 { margin-top:12pt; margin-left:21.55pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid } .s5E96E7A2 { margin-top:12pt; margin-left:31.75pt; margin-bottom:6pt; text-align:justify; font-size:10pt } .s48FEA97C { font-family:Arial; vertical-align:3pt } .s1A2B4B2B { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-after:avoid; font-size:10pt } .s450434BC { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; font-size:10pt } .s5C494981 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid } .sCA71A5BA { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8859A5EC { margin-top:18pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE35B190 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9F223FEE { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s40E9DAE9 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s3E2DB4A0 { margin-top:18pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8F4EE4B8 { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s93EDF1FF { margin-top:18pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s21F08A35 { margin-top:18pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s72DACE05 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; font-size:10pt } .s471F7CE { margin-top:6pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .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 } .s34B4B5A7 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s71833996 { width:42.55pt; display:inline-block } .sBA1E98D { width:258.79pt; display:inline-block } .s8C385EB3 { width:252.45pt; display:inline-block } .sFDD53DB9 { width:17.21pt; display:inline-block }     GRAND CHAMBER             CASE OF MOSTACCIUOLO v. ITALY (No. 2)   (Application no. 65102/01)                     JUDGMENT           STRASBOURG   29 March 2006     This judgment is final but may be subject to editorial revision. In the case of Giuseppe Mostacciuolo v. Italy (no. 2), The European Court of Human Rights, sitting as a Grand Chamber composed of:   Mr   L. Wildhaber , President ,   Mr   C.L. Rozakis ,   Mr   J.-P. Costa ,   Sir   Nicolas Bratza ,   Mr   B.M. Zupančič ,   Mr   L. Caflisch ,   Mr   C. Bîrsan,   Mr   K. Jungwiert,   Mr   M. Pellonpää,   Mrs   M. Tsatsa-Nikolovska,   Mr   R. Maruste,   Mr   S. Pavlovschi,   Mr   L. Garlicki,   Mrs   A. Gyulumyan,   Mr   E. Myjer,   Mr   S.E. Jebens , judges ,   Mr   L. Ferrari Bravo , ad hoc judge , and Mr T.L. Early , 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. 65102/01) 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 an Italian national, Mr Giuseppe Mostacciuolo (“the applicant”), on 25   February 1998. 2.     The applicant was represented by Mr V. Collarile and Mr   C.   Marcellino, of the Benevento Bar, in the proceedings before the Chamber and subsequently by Mr S. de Nigris de Maria, Mr T. Verrilli, Mr   C.   Marcellino, Mr   A. Nardone and Mr   V. Collarile, of the Benevento Bar. The Italian Government (“the Government”) were represented successively by their Agents, Mr U. Leanza and Mr I.M. Braguglia, and their co-Agents, Mr V. Esposito and Mr F. Crisafulli, and their deputy co-Agent, Mr   N. Lettieri. 3.     The applicant alleged that there had been a breach of Article 6 § 1 of the Convention on account of the length of civil proceedings to which he had been a party. Subsequently, the applicant indicated that he was not complaining of the manner in which the Court of Appeal had calculated the delays but of the derisory amount awarded in damages. 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 a Section of the Court (Rule 52 § 1 of the Rules of Court). Mr V. Zagrebelsky, the judge elected in respect of Italy, withdrew from sitting in the Grand Chamber (Rule 28). The Government accordingly appointed Mr L. Ferrari Bravo to sit as an ad hoc judge in his place (Article 27 § 2 of the Convention and Rule 29 § 1). 6.     On 22 January 2004 the application was declared admissible by a Chamber of the First Section, composed of Mr   C.L.   Rozakis, Mr P. Lorenzen, Mr G. Bonello, Mr A. Kovler, Mrs   E.   Steiner, Mr   K. Hajiyev, judges, Mr L. Ferrari Bravo, ad hoc judge, and also of Mr S. Nielsen, Section Registrar. 7.     On 10 November 2004 the same Chamber gave judgment in which it held unanimously that there had been a violation of Article 6 § 1 of the Convention. 8.     On 27 January 2005 the Italian Government requested, in accordance with Article 43 of the Convention and Rule 73, that the case be referred to the Grand Chamber. On 30 March 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. The President of the Court decided that in the interests of the proper administration of justice the case should be assigned to the same Grand Chamber as the cases of Riccardi Pizzati v. Italy , Musci v. Italy , Giuseppe Mostacciuolo v. Italy (no. 1), Cocchiarella v. Italy, Apicella v.   Italy, Ernestina Zullo v. Italy and Giuseppina and Orestina Procaccini v.   Italy (applications nos. 62361/00, 64699/01, 64705/01, 64886/01, 64890/01, 64897/01 and 65075/01) (Rules 24, 42 § 2 and 71). To that end the President ordered the parties to form a legal team (see paragraph 2 above). 10.     The applicant and the Government each filed a memorial. In addition, third-party comments were received from the Polish, Czech and Slovak 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 applicant 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 respondent Government Mr   N. Lettieri ,   deputy co - Agent;   (b)     for the applicant Mr   S. de Nigris de Maria , of the Benevento Bar ,   Mr   T. Verrilli , of the Benevento Bar,   Mr   C. Marcellino , of the Benevento Bar,   Mr   A. Nardone , of the Benevento Bar,   Mr   V. Collarile , of the Benevento Bar,       Counsel.   The Court heard addresses by Mr S. de Nigris de Maria, Mr T. Verrilli and Mr N. Lettieri, and Mr Lettieri’s replies to judges’ questions. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 12.     The applicant was born in 1938 and lives in Benevento. A.     The main proceedings 13.     On 5 May 1987 Mr F. asked the Benevento District Court to order the applicant to pay him 73,934,495 Italian lire (38,183.98 euros (EUR)) for professional services. On 11 May 1987 the President of the Benevento District Court granted the application. The order was served on the applicant on 20 May 1987. 14.     On 8 June 1987 the applicant challenged the order in the Benevento District Court. Preparation of the case for trial began on 24 September 1987. Of the twenty-nine hearings listed between 26 November 1987 and 16   October 1998 seven were adjourned by the court of its own motion, ten were devoted to organising expert evidence and supplementary findings and two were adjourned at the parties’ request. 15.     On 16 April 1999 the case was referred to the bench of judges dealing with the oldest cases ( sezioni stralcio ). Of the four hearings listed between 22 September 1999 and 8 February 2002 one was adjourned by the court of its own motion and one because the parties had not appeared. On 2 May 2003 the case was struck out of the list of cases because the parties had not appeared. B.     The “Pinto” proceedings 16.     On 10   January   2002 the applicant lodged an application with the Rome Court of Appeal under Law no.   89 of 24   March   2001, known as the “Pinto Act”, complaining of the excessive length of the above-described proceedings. The applicant asked the court to rule that there had been a breach of Article 6 § 1 of the Convention and to order the Italian Government to pay compensation for the pecuniary and non-pecuniary damage sustained. The applicant claimed EUR 14,460.94 in pecuniary and non-pecuniary damages. He sought the reimbursement of his legal costs, including those incurred before the European Court of Human Rights, but did not quantify or give particulars of them. 17.     In a decision of 21 June 2002, the text of which was deposited with the registry on 2 October 2002, the Court of Appeal found that the length of the proceedings had been excessive. It held as follows: “ ... The proceedings have lasted approximately 15 years without being disposed of. Their length is clearly well over the reasonable time required by Article 6 § 1 of the European Convention. On the basis of the time periods considered reasonable in a series of judgments of the Strasbourg Court, this type of proceedings should have ended within three years at the most since they were normal proceedings on the merits to be prepared and dealt with in accordance with the ordinary procedure. Accordingly, in respect of the surplus period of approximately 12 years the delay has to be regarded as unjustified. That delay certainly cannot be attributed to culpable conduct on the part of the applicant, who did not make any unsubstantiated requests for an adjournment or applications for investigative measures on false pretexts since he merely put up with the numerous adjournments ordered by the court of its own motion and the slowness in preparing the case without being able to intervene to expedite the proceedings, as was in his interests, and have set aside an order to pay a substantial sum which he considered unfair. Nor is the delay attributable to the complexity of the case since, on the contrary, it was an ordinary dispute which could easily have been disposed of in less time by examining a number of documents and the expert report that was drawn up, as the technical investigation did not require a lot of work. Nor have the courts been negligent, since the overlong parts of the proceedings have to be attributed to the excessive caseload and the structural flaws for which the Benevento judicial departments are notorious. Accordingly, responsibility for the delay can only be attributed to the Italian State, which, despite its obligation after signing and ratifying the European Convention of Human Rights to equip itself with a judicial system capable of dealing with its citizens’ legal claims, has failed to expedite proceedings because of persistent structural flaws and the growing increase in the caseload, despite a number of changes to the rules and a reinforcement of the court structures. The applicant shall therefore be awarded just satisfaction. No award shall be made for pecuniary damage because the applicant has failed to substantiate his claim. He is, however, entitled to non-pecuniary damages since it cannot be excluded that he has suffered as a result of the consequent long and frustrating wait for a judgment which has still not been delivered after years of preparation of the case and which should solve a matter of major economic importance for him. Having regard to the length of the delay, the interests at stake and the uncertain outcome of the dispute, we consider it equitable to make an award of 2,000 euros...” The Court of Appeal dismissed the claim for pecuniary damages on the ground that the applicant had not provided any proof, awarded him EUR   2,000 on an equitable basis in compensation for non-pecuniary damage, EUR   700 for costs and expenses incurred in the proceedings before the European Court of Human Rights and EUR 900 for the costs and expenses incurred in the Pinto proceedings. 18.     In a letter of 21 January 2003 the applicant informed the Court of the outcome of the domestic proceedings and asked it to resume its examination of his application. 19.     The applicant has not indicated that he appealed to the Court of Cassation. 20.     The Court of Appeal’s decision was served on the authorities on 23   January 2003 and became final on 24 March 2003. The applicant served the authorities with notice to comply on 15 October 2003. On 29 October 2003 the applicant lodged an application for a garnishee order with the Rome judge responsible for enforcement proceedings and a hearing was held on 28   March 2004. After obtaining a garnishee order on 27 May 2004, the sums were paid on an unspecified date after the order had been served.   II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Law no.   89 of 24 March 2001, known as the “Pinto Act” 21.     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 till 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.” B.     Extracts from Italian case-law 1.     The departure from precedent of 2004 22.     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) on 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 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 done 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.” 23.     Extracts from the plenary Court of Cassation’s judgment no.   1339 deposited with the registry on 26   January   2004 “... 2.- The present application poses the fundamental question of what legal effect must be given – in implementing the Law of 24 March 2001 no. 89, 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 in accordance with the Law of 4 August 1955 no. 848, for failure to comply with the reasonable time referred to in Article 6, paragraph   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 European Convention on Human Rights, it is for the Court of the European Convention on Human Rights to determine all the elements of such a legal fact, which thus ends by being “brought into conformity” by the Strasbourg 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 European Convention on Human Rights 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 European Convention on Human Rights 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 European Convention on Human Rights, 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 of 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 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 European Convention on Human Rights, 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 length of 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 Court of Strasbourg, expressly provided for by the European Convention on Human Rights (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 European Convention on Human Rights to guarantee to individuals the protection of the rights recognised by the European Convention on Human Rights, 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 European Convention on Human Rights), 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 appeals against Italy in respect of a violation of Article 6 of the European Convention on Human Rights 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 to comply on the part of Italy “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 the cases of 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 European Convention on Human Rights) 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 European Convention on Human Rights, 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 just satisfaction provided for in Article 41 of the European Convention on Human Rights for the excessive length of proceedings ( Brusco v. Italy , decision of 6 September 2001). This mechanism for implementation of the European Convention on Human Rights 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 European Convention on Human Rights 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 European Convention on Human Rights is admissible ( Scordino and Others 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 European Convention on Human Rights to ascertain whether, in the presence of a violation of a provision of the European Convention on Human Rights, the internal law has been able to fully redress the consequences of this violation. The argument whereby, in applying Law no. 89/2001, the Italian court may follow a different interpretation from that which the European Court has given to the provisions of Article 6 of the European Convention on Human Rights (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 European Convention on Human Rights 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 therefore necessary to concur with the European Court of Human Rights, which, in the above-mentioned decision on the Scordino application (concerning the inadequacy of the protection afforded by the Italian courts in implementing Law no. 89/2001), affirmed that “it follows from the principle of subsidiarity ... that the national courts must, where possible, interpret and apply domestic law in accordance with the Convention”.   ... The preparatory documents of Law no. 89/2001 are even more explicit. In the report concerning the bill of Senator Pinto (proceedings of the Senate no. 3813 of 16   February 1999) it is affirmed that the compensatory mechanism proposed in the legislative initiative (and then adopted by the Act) secures for the applicant “a protection analogous to that which he or she would receive in the international court”, as the direct reference to Article 6 of the European Convention on Human Rights makes it possible to transfer to domestic level “the limits of applicability of the same provision existing at international level, limits which depend essentially on the State and on the development of the case-law of the Strasbourg authorities, especially that of the European Court of Human Rights, whose decisions must therefore guide ... the domestic court in the definition of these limits”.   ... 6. – The considerations expounded in sections 3-5 of the document refer in general to the importance of the interpretative guidance of the European Court on the implementation of Law no. 89/2001 with regard to reparation for non-pecuniary damage. In this particular instance, however, any possibility for the national court to exclude non-pecuniary damage (despite having found a violation of Article   6 of the European Convention on Human Rights) must be considered as non-existent because such is precluded by the previous decision of the European Court which, with reference to the same proceedings, had already ascertained that the unjustified delay in reaching a decision had had consequences involving non-pecuniary damage for the applicant, which the Court itself redressed for a limited period. From such a decision of the European Court it follows that, once the national court has ascertained that the violation has continued in the period following that considered in the said decision, the applicant has continued to suffer non-pecuniary damage, which must be compensated for in application of Law no. 89/2001. It cannot therefore be maintained – as the Rome Court of Appeal has done – that compensation is not due because of the small amounts at stake in the proceedings in question. Such a reason, apart from being rendered immaterial by the fact that the European Court has already ruled that non-pecuniary damage had been sustained because of delay in the same action, is in any case incorrect, because the amount of what is at stake in an action in which non-compliance with reasonable time-limits has been ascertained can never have the effect of excluding non-pecuniary damage, given that the anxiety and distress resulting from the length of the proceedings normally also occur in cases in which the amounts at stake are small; hence this aspect may have the effect of reducing the amount of compensation but not of totally excluding it. 7. – In conclusion the decision appealed against must be quashed and the case remitted to the Rome Court of Appeal, which, in a different composition, will order payment to the applicant of the non-pecuniary damages payable as a result of the violation of the reasonable-time requirement for the period following 16 April 1996 alone, taking as a reference point payments of the same kind of damages by the European Court of Human Rights, from which it may diverge, but only to a reasonable extent (HR Court, 27 March 2003, Scordino v. Italy )”. 2.     Case-law on the transfer of the right to compensation a)     Judgment of the Court of Cassation no. 17650/02 deposited with the registry on 15   October 2002 24.     The Court of Cassation held as follows: “...Where the victim of unreasonably lengthy proceedings dies prior to the entry into force of Law no. 89 of 2001 [known as the “Pinto Act”] this shall preclude a right [to just satisfaction] from arising and passing to the heirs, in accordance with the general rule that a person who has died cannot become entitled to a right conferred by an Act that is passed after their death...” b)     Judgment of the Court of Cassation no. 5264/03 deposited with the registry on 4 April 2003 25.     The Court of Cassation judges noted that the right to compensation for a violation of the right to a hearing within a reasonable time derived from the Pinto Act. The mechanism set in place by the European standard did not give applicants a cause of action before the domestic courts. Accordingly, the right to “just satisfaction” could neither be acquired nor transferred by a person who had already died by the time the Pinto Act came into force. The fact that the deceased had, while alive, lodged an application with the Strasbourg Court was not decisive. Section 6 of the Pinto Act did not constitute, as the applicants had maintained, a procedural standard bringing about a transfer of powers from the European Court to the domestic courts. c)     Order of the Court of Cassation no. 11950/04 deposited with the registry on 26   June 2004 26.     In this case, which concerned the possibility or otherwise of transferring to heirs the right to compensation deriving from a breach of Article 6 § 1 on account of the length of the proceedings, the First Division of the Court of Cassation referred the case to the full court indicating that there was a conflict between the case-law authorities, that is, between the restrictive approach taken by the Court of Cassation in the earlier judgments regarding heirs and the Pinto Act and the four judgments delivered by the Court of Cassation, sitting as a full court, on 26 January 2004 to the extent that a less strict interpretation would lead to the conclusion that this right to compensation has existed since Italy ratified the European Convention on 4 August 1955. d)     Extracts from judgment no.   28507/05 of the plenary Court of Cassation deposited with the registry on 23 December 2005 27.     In the case giving rise to the order mentioned above referring the case to the full court (see preceding paragraph), the Court of Cassation, sitting as a full court, established the following principles, thus preventing any further conflicting decisions being given by the courts:   (i) Law no.   848 of 4 August 1955, which ratified the Convention and made it enforceable, introduced into domestic legal order the fundamental rights, belonging to the category of rights conferred on the individual by public law, provided for in the first section of the Convention and which correspond to a large extent with those set forth in Article 2 of the Constitution. In that respect the Convention provisions are confirmatory and illustrative. ... (ii) It is necessary to reiterate the principle that the act giving rise to the right to reparation conferred by domestic law corresponds to a breach of the provision in Article 6 of the Convention, which is immediately applicable in domestic law. The distinction between the right to a hearing within a reasonable time, introduced by the European Convention on Human Rights (or even pre-existing as a constitutionally protected value), and the right to equitable reparation, which was allegedly introduced only by the Pinto Act, cannot be allowed in so far as the protection provided by the domestic courts does not depart from that previously offered by the Strasbourg Court, the domestic courts being bound to comply with the case-law of the European Court. ... (iii) Accordingly, the right to equitable reparation for loss sustained as a result of the unreasonable length of proceedings prior to the entry into force of Law no. 89/2001 must be acknowledged by the domestic courts even in favour of the heirs of a party who introduced the proceedings before that date, subject only to the condition that the claim has not already been lodged with the Strasbourg Court and the Court has not ruled on admissibility. ... 3.     Judgment of the Court of Cassation no. 18239/04 deposited with the registry on 10 September 2004 concerning the right to compensation of legal entities 28.     This judgment of the Court of Cassation concerned an appeal by the Ministry of Justice challenging the Court of Appeal’s award of non-pecuniary damages to a juristic person. The Court of Cassation referred to the decision reached in the case of Comingersoll v. Portugal [GC], no.   35382/97, ECHR 2000 ‑ IV and, after referring to the four judgments of the full court delivered on 26 January 2004, found that its own case-law was not in line with the European Court. It held that there was no legal barrier to awarding just satisfaction to “juristic” persons according to the criteria of the Strasbourg Court. Accordingly, since the Court of Appeal had correctly decided the case the appeal was dismissed. 4.     Judgment of the Court of Cassation no. 8568/05, deposited with the registry on 23 April 2005, concerning the presumption of non-pecuniary damage 29.     The Court of Cassation made the following observations: “   ... [Whereas] non-pecuniary damage is the normal, albeit not automatic, consequence of a breach of the right to a hearing within a reasonable time, it will be deemed to exist, without it being necessary to specifically prove it (directly or by presumption), on the basis of the objective fact of the breach, on condition that there are no special circumstances indicating the absence of any such damage in the actual case concerned (Cass. A.P. 26 January 2004 nos. 1338 and 1339). - the assessment on an equitable basis of compensation for non-pecuniary damage is subject – on account of the specific reference in section 2 of Law no. 89 of 24 March 2001 to Article 6 of the European Convention on Human Rights (ratified by Law no.   848 of 4 August 1955) – to compliance with the Convention, in accordance with the judicial interpretation given by the Strasbourg Court (non-compliance with which results in a violation of the law), and must therefore, as far as possible, be commensurate, in substantive and not merely formal terms, with the amounts paid in similar cases by the European Court, it being possible to adduce exceptional circumstances that suggest themselves in the particular case, on condition that they are reasoned, not excessive and not unreasonable (Cass. A.P. 26 January 2004 no. 1340). ... - a discrepancy in the method of calculation [between the Court’s case-law and section 2 of the Pinto Act] shall not affect the general vocation of Law no. 89 of 2001 to meet the objective of awarding proper compensation for a breach of the right to a hearing within a reasonable time (vo