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You are here: BAILII >> Databases >> European Court of Human Rights >> ZANGHÌ v. ITALY (ARTICLE 50) - 11491/85 [1993] ECHR 3 (10 February 1993) URL: http://www.bailii.org/eu/cases/ECHR/1993/3.html Cite as: [1993] ECHR 3

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In the case of Zanghì v. Italy*,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention")** and the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

Mr J. Cremona, President,

Mr Thór Vilhjálmsson,

Mrs D. Bindschedler-Robert,

Mr F. Gölcüklü,

Sir Vincent Evans,

Mr C. Russo,

Mr N. Valticos,

Mr S.K. Martens,

Mr J.M. Morenilla,

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

Registrar,

Having deliberated in private on 23 September 1992 and

1 February 1993,

Delivers the following judgment, which was adopted on

the last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 3/1990/194/254. The first number is the case's

position on the list of cases referred to the Court in the relevant

year (second number). The last two numbers indicate the case's

position on the list of cases referred to the Court since its creation

and on the list of the corresponding originating applications to the

Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came into

force on 1 January 1990.

_______________

PROCEDURE AND FACTS

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 16 February 1990. It originated

in an application (no. 11491/85) against the Italian Republic lodged

with the Commission by an Italian national, Mr Claudio Zanghì, on

16 April 1985.

2. For the facts of the case, reference should be made to

paragraphs 9-14 of the judgment delivered on 19 February 1991 (Series A

no. 194-C, p. 45). In that judgment the Court found a violation of

Article 6 para. 1 (art. 6-1) of the Convention because civil

proceedings brought on 3 April 1982, though not complex, remained

pending (ibid., pp. 46-47, paras. 18-21 of the judgment, and point 1

of the operative provisions). The Court did not deem it necessary to

consider also the complaint based on Article 1 of Protocol No. 1 (P1-1)

(ibid., p. 47, paras. 22-23 of the judgment, and point 2 of the

operative provisions).

3. Mr Zanghì did not make any pecuniary claim in respect of the

violation of Article 6 para. 1 (art. 6-1), nor did he seek

reimbursement of the costs and fees incurred in the proceedings before

the Commission and the Court. He did, on the other hand, seek

compensation in the amount of 7,950,000 Italian lire for pecuniary

damage sustained as a result of the alleged breach of Article 1 of

Protocol No. 1 (P1-1).

The Court dismissed this claim as matters stood, as it was

still possible that the national courts would make reparation for the

financial consequences of failing to try the case within a reasonable

time (ibid., pp. 47-48, paras. 24-26 of the judgment and point 3 of the

operative provisions).

4. In a judgment of 31 May 1990, which was filed in its registry

on 25 June 1990 and became final on 26 September 1991, the Catania

Court of Appeal found against Mrs D. and awarded the respondent,

Mr Zanghì, compensation in the amount of 298,000 lire, representing the

value of a parcel of land that had been unlawfully occupied by Mrs D.

The applicant informed the European Court's registry of this

decision on 24 May 1991 and supplied the text on 27 January 1992.

5. On 18 September 1991, as authorised by the President, Mr Zanghì

filed his claim for just satisfaction.

On 11 and 23 March 1992 observations were received from the

Government and the Commission respectively; the applicant replied to

them on 21 April.

6. On 23 September 1992 the Court re-entered the case in its list

and decided not to hold a hearing.

7. As Mr R. Ryssdal was unable to attend the deliberations on

1 February 1993, his place as President of the Chamber was taken by

Mr J. Cremona (Rule 21 para. 5, second sub-paragraph); Sir Vincent

Evans, substitute judge, replaced Mr Ryssdal as a member of the Chamber

(Rules 22 para. 1 and 24 para. 1).

AS TO THE LAW

8. Under Article 50 (art. 50),

"If the Court finds that a decision or a measure taken by a

legal authority or any other authority of a High Contracting

Party is completely or partially in conflict with the

obligations arising from the ... Convention, and if the

internal law of the said Party allows only partial reparation

to be made for the consequences of this decision or measure,

the decision of the Court shall, if necessary, afford just

satisfaction to the injured party."

9. Mr Zanghì maintained that the Court's dismissal, "as matters

stood", of his earlier claim was explained by the fact that there had

not been any final national decision and by the possibility that the

relevant authorities might make reparation for the financial damage

caused by the failure to try the case within a reasonable time. As the

situation had changed in the meantime (see paragraph 4 above), he asked

the Court to award him 13,057,862 lire - a sum to be adjusted for

inflation and to which statutory interest up to the date of payment

should be added - in compensation for the "pecuniary damage sustained

during the period representing the excessive length of the proceedings"

(letter of 18 September 1991, para. 11).

10. The Government submitted that the fresh claim should be

dismissed, since it was identical with the original one. In the

alternative, they pleaded estoppel, as the applicant had stated in his

memorial of 16 July 1990 that he was not seeking compensation for the

breach of Article 6 para. 1 (art. 6-1) of the Convention.

11. The Commission observed at the outset that it was not part of

its functions to interpret the judgment of 19 February 1991. It

expressed surprise that Mr Zanghì had neglected to disclose to the

Court during the hearing on 3 October 1990 that the Catania Court of

Appeal had given a decision four months earlier; this was a matter not

just of courtesy but of the parties' duty to inform the Court of any

fact relevant to the consideration of a case. Lastly, it opined that

the fact that a judgment - an immediately enforceable one, moreover -

had become final could not justify a further decision under Article 50

(art. 50).

12. The Court finds that, as it held it unnecessary to rule on the

complaint based on Article 1 of Protocol No. 1 (P1-1), the financial

consequences of an infringement of the applicant's right to the

peaceful enjoyment of his possessions cannot be taken into

consideration. As to the consequences of the breach of Article 6

para. 1 (art. 6-1) of the Convention which it found on

19 February 1991, it noted at the time, even though no claim for just

satisfaction had been made under that head, that it was still possible

that the national courts might make reparation for them. The Catania

Court of Appeal's judgment of 31 May 1990, the text of which was only

communicated to the Court on 27 January 1992, is not of such a nature

as to call for a reconsideration of the decision delivered on

19 February 1991.

FOR THESE REASONS, THE COURT

Dismisses by eight votes to one the applicant's claim for just

satisfaction.

Done in English and in French, and notified in writing on

10 February 1993 pursuant to Rule 55 para. 2, second sub-paragraph, of

the Rules of Court.

Signed: John CREMONA

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of the Rules of Court, the dissenting

opinion of Mrs Bindschedler-Robert is annexed to this judgment.

Initialled: J.C.

Initialled: M.-A.E.

DISSENTING OPINION OF JUDGE BINDSCHEDLER-ROBERT

(Translation)

I concur with the Court

(a) when it acknowledges (by implication) that the dismissal of the

claim for just satisfaction "as matters stood" in its judgment of

19 February 1991 was only provisional;

(b) when it considers (likewise by implication) that the issue it has

to determine is that of the damage caused to the applicant by the

breach of Article 6 (art. 6), thus recognising that there is no cause

to hold that he is estopped because he relied at the time, in support

of his claim, on Article 1 of Protocol No. 1 (P1-1) and not on

Article 6 (art. 6) of the Convention, and therefore taking into account

the fact that the Court itself said, in its judgment of 19 February

1991, that it considered it unnecessary to determine also the complaint

based on the latter Article in view of the circumstances of the case

and the finding of a breach of the former Article for failure to try

the case within a "reasonable time"; and

(c) when it refrains from drawing conclusions unfavourable to the

applicant from the fact that he did not make known to it, before the

judgment of 19 February 1991 was delivered, the text of the Catania

Court of Appeal's judgment, and thus has regard to the fact that this

judgment did not become final until 26 September 1991, in other words

after it had delivered its own judgment.

To my great regret, I find I must part company with the

majority when they state that the Catania Court of Appeal judgment "is

not of such a nature as to call for a reconsideration of the decision

delivered on 19 February 1991" and accordingly dismiss the applicant's

claim for just satisfaction, this time finally.

It is true that the Catania Court of Appeal, upholding the

judgment of the Catania District Court, ordered the defendant, Mrs D.,

to pay the applicant compensation in the amount of 298,000 lire; but

an examination of the judgment shows that this compensation was for the

physical damage caused by the construction of the dividing wall - which

damage does not fall to be taken into account for the purposes of

Article 6 (art. 6). The Court of Appeal does indeed confirm the

existence of a right of view for the benefit of the applicant, but does

not determine whether damage flowed from the temporary loss of that

right or what any such damage consisted in or its amount. In any case,

even if the compensation had been awarded in respect of such damage,

the question would arise of the extent to which it satisfied the

requirements of Article 50 (art. 50). In my opinion, it is so minimal

that the answer to that question must be in the negative.

In conclusion, I am mainly of the view that the Court should

have considered the consequences of the Catania Court of Appeal's

judgment in regard to Article 50 (art. 50). I also consider that,

since the compensation upheld in that judgment did not relate to the

damage sustained as a result of the prolonged loss of the right of

view, and as the compensation awarded was anyway too minimal to satisfy

the requirements of Article 50 (art. 50), the Court should have ordered

the Italian State to pay a certain sum as just satisfaction.