No violation of Art. 6-1;No violation of Art. 8;Preliminary objection rejected (non-exhaustion of domestic remedies)

The applicant was born in 1952 and lives at Villeurbanne (France). He is the father of three children whom he had been bringing up alone: I. and Ch., who were born in the Ivory Coast in 1974 and 1976 respectively, and C., who was born in France in 1988.

On 14 January 1992 the applicant took C. to the ophthalmic unit of Herriot Hospital in Lyons. The child, who presented bruising to each eye, a cut to the right forearm, abrasions to the abdomen and healed scar tissue to the face, was admitted to the paediatric ward.

The Lyons public prosecutor's office was informed and a police investigation set in motion. On 15 January 1992 the public prosecutor made an order placing C. in the care of the child-welfare service (“the ASE”) of the Rhône département. A doctor examined the child on 16 January and concluded that his tegumentary lesions could have been caused by abuse.

On 17 January 1992 the investigating judge at the Lyons tribunal de grande instance charged the applicant with assault with intent by an ascendant on a minor aged under 15 and placed him under court supervision.

On 20 January 1992 the children's judge at the Lyons tribunal de grande instance made an order under Articles 375 et seq. of the Civil Code for C.'s temporary placement with the ASE and issued an injunction against the applicant banning him from “all contact before the hearing of 12 February 1992” on the ground that “... [C.] [had] been admitted to hospital and that he [was] at risk in the family home ...”.

By a judgment of 12 February 1992 the children's judge placed C. with the ASE for a period of one year. He put the applicant's two other sons in the care of the same authority; I. was to remain in care until he reached his majority and Ch. for one year. The reasons given in the judgment were: “... the domestic situation is difficult and the children are in danger; ... their removal from home is necessary to enable relations with the father to become less conflictual and to make the children feel more secure by helping them to resolve their personal difficulties”.

On an appeal by the applicant, the Special Minors' Division of the Lyons Court of Appeal upheld all the provisions of the judgment of the court below in a decision of 23 March 1992, on the following grounds:

“... Mr Gnahoré is bringing up his three sons in circumstances made difficult in particular by the fact that he works as a night-watchman and the three mothers are absent: two live in Africa, while his relations with the third, Ch.'s mother, are very intermittent.

... on 8 January 1990 Mr Gnahoré applied for educative assistance measures in respect of his son, I., who had run away from home and was beyond his control; ... in an interview with the caseworkers on 12 April 1990, the father came across as someone who was inflexible, incapable of understanding his son's sufferings and with whom it would be impossible to implement any educative measures; I. has had to remain in care ...

... Ch. has been virtually abandoned and no longer tolerates the tension in his relations with his father or his father's authoritarianism. ... it appears that he is unable to obtain from his father a response to his emotional and educative needs. ... accordingly, since the conditions in which the minor is brought up are highly unsatisfactory, the order for Ch.'s placement will stand. ...

... on both occasions [C.] was admitted to hospital – on 3 August 1991 with a cranial traumatism and bruising to both eyelids and on 15 January 1992 with bilateral periorbital bruising – the public prosecutor's office was advised by the Lyons civil hospital authorities of the suspect origin of the injuries.

... whatever the origin of the injuries, it does not appear that Mr Gnahoré offers the material and educative guarantees necessary to ensure the child's health and safety. ...”

On 18 May 1992 Professor D., a doctor at Herriot Hospital, examined C. and found that he presented post-traumatic ecchymosis caused by a fall a few days' earlier in the home where he had been placed. On 25 May he said in a letter to the investigating judge that it was “possible that the child presented a propensity to major haematomic reaction to moderate trauma and [that it was] quite possible that that propensity had ... led to the degree of trauma being over-estimated during the child's two stays in hospital that had resulted in the public prosecutor's office being informed. ...”. A copy of that letter was sent to the children's judge. He also wrote to the public prosecutor's office.

By an order of 10 August 1992 the children's judge suspended the applicant's rights to contact until 30 September 1992 on the ground that “[the applicant's] visits invariably provoke[d] violent incidents, [C.] [was] disturbed and insecure afterwards, a carer had been subjected to violence by the applicant” and “arrangements were being made for [the child] to be placed with foster parents”. He further ordered that the name and address of C.'s foster parents were not to be communicated to the father and contact was only to be arranged after 30 September 1992, “in a neutral location to be determined by the ASE, and provided that there [was] no risk of violence and that Mr Gnahoré complie[d] with the timetable and the conditions imposed”.

In a judgment of 14 December 1992 the children's judge extended the period of C.'s placement with the ASE for a year starting on 12 February 1993. On an appeal by the applicant, the Special Minors' Division of the Lyons Court of Appeal upheld that judgment in a decision of 10 May 1993, subject to arrangements being made for contact. It held in particular:

“... the ASE says that the child has made positive progress in his foster home, ... having gained in confidence and not demonstrating any behavioural disorders. ... the father does not accept the care order and the attitude of both father and son during the monthly visits is passive, although the boy subsequently vents his emotions. ... The father refuses to speak with the social workers.

... the father lodged a report by a forensic expert in the criminal proceedings with the court. In addition to containing an opinion on whether the abuse was intentional or not (a matter for the judge dealing with the criminal proceedings), it refers to the psychological trauma suffered by the child as a result of his separation from his mother and to the child's need to live in a home, as the father is unable in his present condition to assume both the paternal and maternal roles.

... those circumstances make it necessary to continue with protective measures, while it is hoped that relations between the father and the social services will improve through mutual acceptance.

... It does, however, appear necessary for the child's development to facilitate contact with the father by making it more extensive than the child-welfare service has currently decided, namely [an hour every month].

... the court considers it necessary to regulate access by allowing visits [of four hours, twice monthly]. ... It has been explained to Mr Gnahoré that if the visits take place without disruption he will be able to apply to the children's judge for a review of the arrangements and that any incidents must be referred to the children's judge, who will review the case in the interest of the child.”

On 26 February 1993 an expert appointed by the investigating judge on 3 April 1992 had lodged a report. The Government quoted the following extract from that report in their memorial of 2 August 1999:

“The scars to the abdomen, face, and the right forearm are of traumatic origin. The lesions to the abdomen and face appear to have been caused by a blunt or cutting instrument and the lesion to the right forearm by a cigarette burn. An examination of the child's mental state ... has not revealed any marked pathological symptoms but does suggest retarded development of adequate defence mechanisms to counter anxiety ... He does not present any of the characteristic psychological disorders seen in abused children.

[On] examination, the cutaneous lesions presented by [the child] on his admission to hospital on 14 January 1992 are consistent in both form and evolution with the suspected abuse, but cannot constitute concrete evidence of abuse.

On the other hand, the psychological after-effects which the child currently presents are directly related to the serious situation that has arisen as a result of severance from the mother figure which the child went through probably in his third year. Those psychological after-effects also demonstrate the incapacity of his father and brother to adopt with him a sufficiently stable maternal role ...

The psychological after-effects by themselves justify his placement in a foster home, as it appears risky to force the father to assume the mother's role alone, when the characteristic nature of that role is continuous presence.”

On 26 May 1993 the investigating judge held that the applicant had no case to answer as there was insufficient evidence against him.

In a letter of 9 June 1993, the applicant's counsel requested the children's judge to hear further evidence from the applicant and to review the care order in the light of the decision to drop the prosecution.

By an order of 16 June 1993 the children's judge suspended the applicant's right to contact until 9 August 1993, on the following grounds:

“[C.] is showing worrying behavioural disorders and severe anxiety at the prospect of seeing his father. A meeting with a psychiatrist has been arranged and it appears necessary to suspend the visits until that meeting has taken place. An order has been made for a psychiatric report on the child.”

On 15 September 1993 the children's judge renewed the order suspending contact, holding:

“An order for a psychiatric report has been made and the report is due to be lodged on 30 September 1993. [The child] still opposes seeing his father. The father's right to contact shall remain suspended until the hearing that will take place once the expert's report has been lodged.”

In their memorial of 2 August 1999, the Government quote the following extract from the psychiatric report lodged on 20 September 1993:

On examination, [C.] does not display any organised pathology but signs of anxiety that appear to be related less to the father's absence than to the interiorised image of the father.

It would be disturbing for the child for the father's right to contact to be reinstated at this point. We therefore consider it more prudent to maintain the status quo – placement in a foster home without visits from the father – for the coming eighteen months and to review the position at that juncture.”

In a judgment of 15 October 1993 the children's judge renewed the order for C.'s placement with the ASE for a period of eighteen months from 15 October 1993 (that is to say, until 15 April 1995). In their memorial of 2 August 1999, the Government quote the following extract from that judgment:

“The psychiatric report confirms the need for [C.] to be protected from the invasive presence of his father ... Mr Gnahoré remains impervious to any advice concerning his son, whom he regards as his property and whom he affords no opportunity for independent development; ... these circumstances justify renewing [C.'s] placement with the ASE for eighteen months and suspending contact for that period.”

In a judgment of 24 January 1994 the Special Minors' Division of the Lyons Court of Appeal upheld the order renewing the child's placement with the ASE. With regard to the suspension of contact, it appointed an expert to assess whether, and, if appropriate, how, contact between the father and his son could take place and adjourned the hearing of the case “to the first available date after the expert's report is lodged”.

The expert's report was lodged on 7 June 1994. The Government quoted the following extracts in their memorial of 2 August 1999:

“ It is not desirable for [C.] to return home to the family environment with his father ...

Intermittent contact between Mr Gnahoré and his son have a moderate relatively morbid impact on [C.]; the lack of contact is not a source of mental suffering ...

Consequently, it is possible to propose a conditional lifting of the ban on contact and brief visits to be allowed every ten days at a neutral location.

Allowing Mr Gnahoré to see [C.] will provide no solution unless accompanied by psychotherapeutic treatment for him. Admittedly, it seems highly unlikely that he will accept, but it must be impressed on him that all the experts agree that he is suffering from personality disorders. If this course of action is to have any chance of succeeding, it will be necessary for a committee to be set up composed of certain people in whom he has confidence ..., which will inform him of the prescribed treatment and ask him to follow it for the good of and out of love for [C.].”

On 4 July 1994 the Special Minors' Division of the Lyons Court of Appeal once again deferred a decision on contact and adjourned examination of the case to 10 October 1994, the applicant being invited in the meantime to envisage starting therapy, as advised by the expert. The Division added that contact remained suspended until the next hearing, although the applicant was authorised to make arrangements for the reimbursement of his expenses.

On 24 October 1994 the Special Minors' Division upheld all the provisions of the judgment of 15 October 1993. It noted that the applicant had failed to attend the hearing before it and had refused to cooperate with the ASE, as he had not responded to appointments he had been given so that arrangements for contact with his son could be made. It also noted that the child was relaxed in his new home.

On 18 April 1995 the children's judge renewed the order for C.'s placement with the ASE for two years. The reasoning set out in his judgment was as follows:

“The domestic situation has remained largely unaltered over the past two years. Although he has been kept regularly informed by the ASE of his son's progress, Mr Gnahoré has failed to get in touch, despite being offered appointments. He recently went to [C.'s] former school where he made a scene and alarmed those present by his aggressiveness. He has not attended today's hearing but has sent a letter calling for his son's return. [C.] has been making positive progress with his foster parents. It is not possible to envisage [C.'s] returning home at present. Before any meetings between the father and the son can take place, Mr Gnahoré will need to contact the ASE so that the question can be explored.”

By an order of 12 July 1996 the children's judge dismissed an application by the applicant for the care order to be lifted and renewed the placement with the ASE for two years from that date. The order stipulated that the applicant's rights to ordinary contact and to residential contact would be conditional on “professional support for both father and child being provided”. The reasons for the order were as follows:

“Mr Gnahoré seeks the return of his son, but did not attend the last hearing on 18 April 1995. He has been kept informed by the ASE of his son's progress but says that he has never received any documents and refuses all contact with the social worker responsible for [C.]. He claims that he is able to tend to all his son's needs and perceives the placement as having torn the family apart and as a means of persecuting him and his son's need as an extension of himself. He rejects any idea of treatment or of a third party's intervening between him and his son. [C.] is progressing well in his foster home but clams up when his father is mentioned and refuses to listen. The situation is currently in an impasse and it does not appear possible at present for contact between the father and his son to be envisaged without the presence of a mediator and a third party, and it will be necessary for [C.] to be accompanied and helped to find the strength to broach the subject of relations with his father.”

The applicant appealed to the Special Minors' Division of the Lyons Court of Appeal. At his request, the applicant's son was heard by a member of that Division on 2 November 1996. On 9 December 1996 the Court of Appeal delivered the following decision:

“[C.] was placed into the care of the ASE after suspected abuse; the placement was also a consequence of the father's inability to tend to his material and educative needs. At the material time, Mr Gnahoré, who had been living on his own since [C.'s] mother's return to Africa in March 1989, was also wholly incapable of bringing up his then adolescent sons, [I.] and [Ch.], who had to be placed in care by the children's judge.

The father's violent conduct towards the social workers during visits to his son led the children's judge to arrange for the visits to take place at a neutral location and subsequently to suspend them and to seek an informed opinion on whether contact between the father and the child was possible. The experts found that Mr Gnahoré was suffering from severe personality disorders and was incapable of considering his son as a separate being (Dr [Pe.]) or other than as a narcissistic object (Dr [C.]). In that connection, the appellant confirmed by his remarks at the hearing on 2 December that he was incapable of imagining that [C.] could lead a separate existence (he kept repeating: 'my son is dead').

Mr Gnahoré refuses to acknowledge that [C.] made a firm request at the hearing to be allowed to live with his foster parents 'all the time', though he also seeks contact with a father of whom he is fond.

In these circumstances, returning the minor to his father would put his health and safety at risk and would be very damaging to his welfare. The decision to renew his placement will therefore be upheld.

Although Mr Gnahoré rejects the whole idea of treatment or meetings with third parties, in order to offer the meetings with [C.], whom he has not seen for three years, 'a chance of success' (Dr [Pe.]), attempts should be made to arrange contact at a neutral location through a specialist counselling service. As it will take some time to make the arrangements, the first visit will be during the Christmas holidays ... The Court of Appeal ... upholds the decision of the court below regarding [C.'s] continued placement; holds that Mr Gnahoré shall be entitled to visit his son, [C.], at a neutral location and that there shall be an initial one-hour visit during the Christmas holidays followed by one-and-a-half-hour visits at fortnightly intervals until 31 March 1997; to that end, orders an inquiry and welfare counselling by a centre for educative action ... whose task will be to determine the arrangements (place, date and time) of the visits; orders that the centre for educative action will report to the Court of Appeal by 15 March 1997 on progress and may, in the event of serious incident, terminate the measure immediately, provided it informs the President of the Minors' Division without delay. ...”

On 30 December 1996 Mr Gnahoré lodged a notice of appeal on points of law with the registry of the Lyons Court of Appeal. On 9 January 1997 he made an application for legal aid to the Legal Aid Office of the Court of Cassation. In a decision of 2 October 1997, the Legal Aid Office accepted the applicant's eligibility for legal aid on the means test but dismissed his application on the ground that “no arguable ground of appeal on points of law [could] be made out against the impugned decision”. Mr Gnahoré exercised his right of appeal to the President of the Court of Cassation under section 23 of Law no. 91-647 of 10 July 1991 on legal aid, but his appeal was dismissed by an order of 8 December 1997 on the ground that “it [did] not appear from an examination of the evidence in the file that a ground of appeal on points of law [could] be argued with any real prospect of success”.

On 14 May 1998 the President of the Court of Cassation dismissed the appeal as being out of time on the following ground:

“The notice of the appeal on points of law does not set out any valid ground of appeal. Furthermore, the appellant has not sent a memorial containing valid grounds of appeal to the registry of the Court of Cassation within the statutory time-limit.”

In their memorial of 2 August 1999, the Government alleged that on 21 March 1997 the centre for educative action had sent to the Special Minor's Division of the Lyons Court of Appeal a record of the applicant's three visits to his son, in which it had concluded: “It does not appear desirable for the meetings between father and son to continue in these circumstances, since [C.] remains at risk when with his father, whose pathology makes it impossible for him to consider his son otherwise than as a part of himself, such that there is no room for the independent existence of this small boy.”

On 10 July 1998 the children's judge renewed the order placing C. in the care of the ASE for a period of two years starting on 12 July 1998. The judgment contained the following reasons:

“... Mr Gnahoré continues to call for [C.'s] return ... He says that he finds their separation painful and regards it as unjustified and unlawful. He is unable to comprehend that renewed contact must take place gradually and does not consider that the children's judge has any right to take decisions concerning [C.]. [C.] is making positive progress in his foster home. He says that he is ready to meet his father once he is better. It is necessary to assess the feasibility of contact between father and son.”

On the same day the children's judge ordered a new medical, psychological and psychiatric report on C. According to the Government, the report, which was lodged on 12 November 1998, concluded as follows (extract from the Government's memorial of 2 August 1999):

“On medical examination, [C.'s] general health ... was seen to be good and his psychomotor development normal.

[C.'s] mental development is normal. He will shortly be reaching adolescence and shows considerable interest in the Ivory Coast, consistent with the construction of his identity and the need to adhere to his biological origins.

There is no sign of marked mental illness on examination. ...

[C.] does not present any physical or mental disorders or disabilities likely to influence his behaviour.

No special protection, assistance or therapeutic measures are required. However, in view of the history of mental suffering that has occurred concurrently with visits from his father and [C.'s] current genuine wish to see his father again, any new contact that takes place should be accompanied by enhanced psychological support to avert and treat new symptoms.

There is no need for specialised treatment for the time being.

There is no medical reason why contact should not take place. He is receiving a normal education which he is pursuing with success.”

The Government added that on 17 May 1999 the children's judge delegated to the ASE by way of a grant of power pursuant to Article 375-7 of the Civil Code such parental authority as would enable it to obtain a national identity card for C., on the ground that “Mr Gnahoré is not in touch with the ASE ...”.

On 2 December 1999 the children's judge sent the following letter to the applicant's lawyer:

“... I acknowledge receipt of your letter of 18 November 1999 regarding the possibility of Mr Gnahoré visiting his son [C.].

In view of the very difficult background to this case, no visit can be arranged unless Mr Gnahoré first contacts the ASE ... who are responsible for [C.].

[C.] has not asked to see his father recently and may find a visit very perturbing. ...”

In January 2000 the Director of the Children's Service of the Villeurbanne Territorial Unit sent the following letter to the applicant:

“I acknowledge receipt of your letter of 23 December 1999 and note what you say.

I would remind you that [C.'s] file is still being handled by the Children's Service of the Villeurbanne Territorial Unit ...

Mr [D.] remains the caseworker responsible for [C.] and I can, if you so wish, send you news of your son by letter.

However, I regret to inform you that I am unable to grant your request to see [C.].

This is because it has never been possible to do any preparatory work with you, despite the efforts of members of this service, or to build relations with you without your resorting to violence, or making demands or threats.

Furthermore, at the request of the Court of Appeal a review of the father/son relationship has been conducted by the COAE responsible for East Lyons. You saw [C.] in that connection once a month for six months and the same findings were reached, namely that:

(i) it is impossible for you to re-establish a relationship with your son in his interest and in liaison with the children's service;

(ii) you refuse to accept that you need treatment.

Under these circumstances and in [C.'s] interest, I have no alternative but to stand by my decision ...”

The relevant provisions of the Civil Code are as follows:

“If the health, safety or morals of an unemancipated minor are at risk, or if the conditions in which he or she is being brought up are highly unsatisfactory, a court order may be made for educative assistance measures on application by the father and mother, jointly or severally, the person or authority in whose care the child has been placed, the guardian, the child itself or by a representative of State Counsel's Office. The court may act on its own initiative in exceptional circumstances. ...

The duration of the measure shall be determined by the court in its decision but shall not exceed two years if the assistance is to be provided by a service or an institution. The measure may be renewed by a reasoned decision.”

“The children's judge shall have jurisdiction for all matters concerning educative assistance.

The children's judge shall in all cases endeavour to obtain the family's agreement to the measure envisaged.”

“Whenever possible, the minor shall remain in his or her present home. In such cases, the judge shall appoint a qualified person or a service for observation, education or rehabilitation in the home to provide the family with help and advice in order to surmount the material or psychological difficulties encountered. That person or service shall be responsible for monitoring the child's development and periodically reporting to the judge.

The judge may also order that the child shall remain at home only if special obligations are complied with, such as regular attendance at an ordinary or specialised health or educational institution, or carrying on an occupational activity.”

“Decisions concerning educative assistance may at any time be varied or set aside by the judge who delivered them, either on his or her own initiative or on application by the father and mother, jointly or severally, the person or authority in whose care the child has been placed, the guardian, the child itself or by a representative of State Counsel's Office.”

“The father and mother of the child for whose benefit assistance has been ordered shall retain their parental authority over the child and shall be entitled to exercise all attributes of that authority that are not inconsistent with the application of the measure. For so long as an educative assistance measure is in force they shall not be entitled to emancipate the child without permission from the judge.

If the child has had to be placed outside the family home, his or her parents shall retain the right to correspond with the child and to have contact. The judge shall decide on the arrangements and may even, if the interest of the child so demands, decide that the exercise of either or both of those rights shall be provisionally suspended. The judge may order that a placement for the child shall be sought in a location that will facilitate so far as possible contact with the parent or parents.”


The applicant, Pauli Lella, is a Finnish national, born in 1944 and living in Kehro.

At the relevant time the applicant had been politically active for over twenty years, as a member of the Urjala Municipal Assembly and as candidate for Parliament on two occasions.

In 1996 he was convicted of aggravated debtor’s dishonesty and a book-keeping offence and sentenced to one year and six months’ imprisonment. The judgment was upheld by a court of appeal and the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal in September 1998. A subsequent request for the case to be re-opened was likewise refused.

On 29 September 1998 the Department for Prison Administration of the Ministry of Justice refused the applicant’s request that the enforcement of his sentence be postponed due to his illness.

On 19 October 1998 the Urjala Municipal Assembly voted to disqualify the applicant from sitting on the assembly on account of his having been sentenced to over six months’ imprisonment. His appeal was refused by the County Administrative Court (lääninoikeus, länsrätten) of Häme on 11 May 1999. His further appeal to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) was apparently likewise refused.

Meanwhile, on 29 October 1998, the Chief Enforcement Officer (kihlakunnanvouti, häradsfogden) of Valkeakoski granted the applicant’s further postponement request in order to enable him to organise certain private matters prior to serving his sentence. He was ordered to start serving his prison term on 4 January 1999.

In November 1998 the applicant requested that the enforcement of his sentence be postponed until 1 April 1999 so as to allow for his effective participation in the parliamentary elections on 21 March 1999 in which he intended to present himself as a candidate.

On 30 November 1998 this request was dismissed, the Chief Enforcement Officer having concluded that the already fixed enforcement would not engender any exceptional and significant losses or difficulties to the applicant, his family, his employer or to society within the meaning of the chapter 2, section 1 (c) of the Act on the Enforcement of Sentences (laki rangaistusten täytäntöönpanosta, lag om verkställighet av straff). Moreover, the considerations militating in favour of the immediate enforcement of his sentence clearly outweighed the inconvenience which such enforcement would cause. Under chapter 2, section 1 (d) of the said Act the decision was automatically referred to the Department for Prison Administration which upheld it on 10 December 1998.

Having started to serve his sentence on 4 January 1999, the applicant, on 11 February 1999, filed an extraordinary appeal to the Supreme Administrative Court, seeking to have the refusal quashed as it had been based on a manifestly incorrect application of the law. He also sought to have the enforcement of his sentence stayed at least until the court had decided the matter. On 12 March 1999 the court refused to re-open the case.

Meanwhile, on 4 February 1999 the applicant registered as candidate in the upcoming elections.

His three requests for leave immediately prior to and on the election day, in order to enable him to complete his campaign, were all refused by the Prison Governor. The refusals were automatically referred to the Department for Prison Administration which upheld them.

The applicant was not elected.

The sentences imposed on four other defendants convicted in the same criminal proceedings were allegedly not enforced until 1 October 1999.

B. Relevant domestic law

Parliamentary elections are normally held every four years in Finland. Under the Parliament Act (valtiopäiväjärjestys, riksdagsordning), as in force at the relevant time, anyone entitled to vote in parliamentary elections is likewise entitled to stand as a candidate, unless placed under guardianship (section 7).


The applicant is a public company “The Urals Factory of Heavy Engineering” (Открытое акционерное общество «Уральский завод тяжелого машиностроения», AO “Uralmash” or “the applicant company”) located in Yekaterinburg. The applicant company is represented before the Court by Ms I. Krivykh, the head of its legal department.

The facts of the case, as submitted by the applicant company, may be summarised as follows.

Pursuant to decisions of the Sverdlovsk Regional Committee for Management of the State Property of 6 and 25 November 1992, the applicant company was privatised and the assets of the serial devices engineering plant (Завод серийных машин, “the Plant”) were included, among others, in the applicant company’s charter capital.

On 9 December 1994 the applicant company made an offer to the Government to return the Plant into state ownership in exchange for a certain number of the applicant company’s shares. On 6 September 1995 the Government accepted the offer and the terms and conditions of the exchange were developed at a meeting on 17 October 1995.

On 11 June 1996 the applicant company and the Government signed an agreement on the transfer of the Plant to the State for consideration. On the same day the applicant company transferred the Plant to the State Committee for Management of the State Property of the Russian Federation, acting on behalf of the Government.

On 3 October 1997 the applicant company invited the Government to pay the stipulated consideration for the Plant. On 19 January and 2 February 1998 the Ministry of Finance of the Russian Federation and the Government acknowledged the outstanding debt and offered to pledge the respective amount in the next year’s State budget. However, on 27 November and 29 December 2000 the Ministry of Finance of the Russian Federation refused to pay the applicant company with reference to the absence of supporting documentation.

On 2 February 2001 the applicant company lodged a civil action against the Government and the Ministry of Finance with the Moscow Commercial Court (Арбитражный суд г. Москвы). The applicant company sought to recover the outstanding payment for the transferred Plant.

On 23 May 2001 the Moscow Commercial Court dismissed the applicant company’s action. The court held that the Plant had been unlawfully privatised and, therefore, it could not be legitimately transferred back into state ownership for consideration.

On 13 June 2001 the applicant company brought an appeal (апелляционная жалоба) against the judgment of 23 May 2001. It argued, inter alia, that the privatisation had been lawful and subsequently approved by a Government resolution.

On 17 August 2001 the Appeal Instance of the Moscow Commercial Court (апелляционная инстанция Арбитражного суда г. Москвы) granted the applicant company’s action and awarded it RUR 204,363,814.33 to be paid by the Ministry of Finance on behalf of the Russian Federation.

On 11 and 17 September 2001 the Ministry of Finance and the Ministry for State Property brought cassation appeals (кассационные жалобы) against the judgment of 17 August 2001.

On 24 October 2001 the Federal Commercial Court of the Moscow Circuit (Федеральный арбитражный суд Московского округа) granted the cassation appeals, quashed the judgment of 17 August and restored the judgment of 23 May 2001.

The applicant company sent several applications for supervisory review (заявление о принесении протеста в порядке надзора). These applications were refused by letters of the deputy President of the Supreme Commercial Court of the Russian Federation of 27 April and 13 June 2002 and a letter of the President of the Supreme Commercial Court of the Russian Federation of 31 October 2002.

On 9 January 2003 the applicant company lodged an application for supervisory review under the new procedure, in force as of 1 January 2003.

On 31 January 2003 the application for supervisory review was dismissed. The applicant company was advised that, under the new procedure, no new applications on the same subject were permissible.

On 1 September 2002 the new Code on Commercial Procedure of the Russian Federation (Арбитражный процессуальный кодекс РФ) entered into force, with the exception of Chapter 36 of the Code “Proceedings for the review of courts’ decisions by way of supervision” (“Производство по пересмотру судебных актов в порядке надзора”) which became effective as of 1 January 2003. Chapter 36 established a new procedure for the supervisory review of courts’ decisions that have already entered into legal force.

According to a general rule in Article 292 § 3 of the Code on Commercial Procedure, the application for supervisory review can be filed with the Supreme Commercial Court of the Russian Federation within three months after the contested decision entered into legal force, provided that all other remedies have been exhausted.

The Law on the Introduction of the Code on Commercial Procedure of the Russian Federation of 24 July 2002 (Федеральный закон «О введении в действие Арбитражного процессуального кодекса РФ» № 96-ФЗ) provided that, in respect of courts’ decisions made before 1 January 2003, the period for filing an application for supervisory review of such decisions will be calculated from 1 January 2003.


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Reasonable time);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Elisabeth Steiner;Giovanni Bonello;Jean-Paul Costa;Karel Jungwiert;Lech Garlicki;Lucius Caflisch;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Mariavaleria Del Tufo;Matti Pellonpää;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Stanislav Pavlovschi;Sverre Erik Jebens;Vladimiro Zagrebelsky

The applicants were born in 1959, 1949, 1951 and 1953 respectively and live in Reggio di Calabria.

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.

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.

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.

The offer was refused by Mr A. Scordino.

On 21 March 1983 the Regional Council issued an expropriation order in respect of the land.

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.

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.

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.

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.

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.

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.

Preparation of the case for hearing began on 7 January 1991.

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.

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.

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.

On 4 December 1991 the expert submitted a report.

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.

Mr A. Scordino died on 30 November 1992. On 18 September 1993 the applicants declared their intention to continue the proceedings.

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.

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.

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.

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.

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.

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.

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.

Those amounts were to be index-linked and subject to interest until the date of settlement.

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.

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.

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.

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.

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.”

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.

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.

The applicants did not appeal to the Court of Cassation. The Court of Appeal’s decision became final on 26 October 2003.

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.

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.

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.

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.

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).

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.

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.

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).

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).

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.

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.

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).

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).

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.

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.

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

“(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.”

“(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.”

“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.”

“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.”

“(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.”

“(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.”

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”.

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 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 Convention 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’.

The considerations expounded in sections 3 to 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 Convention) 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 reasoning, apart from being rendered immaterial by the fact that the European Court has already ruled that non-pecuniary damage had been sustained because of a 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.

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 compensation for non-pecuniary damage 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 (Court HR, 27 March 2003, Scordino v. Italy).”

The Court of Cassation held as follows:

“...Where the victim of unreasonably lengthy proceedings dies prior to the entry into force of Law no. 89/2001 [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 ...”

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 put 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.

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.

In the case giving rise to the order mentioned above referring the case to the full court (see paragraph 67), 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 the domestic legal order the fundamental rights, belonging to the category of rights conferred on the individual by public law, provided for in Section I of the Convention and which correspond to a large extent to 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. ...”

This judgment of the Court of Cassation concerned an appeal by the Ministry of Justice challenging a court of appeal’s award of compensation for non-pecuniary damage to a juristic person. The Court of Cassation referred to the decision reached in Comingersoll S.A. 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.

The Court of Cassation made the following observations:

“... [Considering that] 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. 89/2001 to meet the objective of awarding proper compensation for a breach of the right to a hearing within a reasonable time (vocation acknowledged by the European Court in, inter alia, a decision of 27 March 2003 in Scordino v. Italy (application no. 36813/97)), and accordingly shall not allow any doubt as to the compatibility of that domestic standard with the international commitments entered into by the Italian Republic when ratifying the European Convention and the formal recognition, also at constitutional level, of the principle of Article 6 § 1 of that Convention ...”

In the report CM/Inf/DH(2004)23, revised on 24 September 2004, the Ministers’ Deputies made the following indications regarding an assessment of the Pinto remedy:

“11. As regards the domestic remedy introduced in 2001 by the ‘Pinto Act’, a number of shortcomings remain, particularly in connection with the effectiveness of the remedy and its application in conformity with the Convention: in particular, the law does not provide yet for the acceleration of pending proceedings.

In the framework of its examination of the 1st annual report, the Committee of Ministers expressed concern at the fact that this legislation did not foresee the speeding up of the proceedings and that its application posed a risk of aggravating the backlog of the appeal courts.

It should be pointed out that in the framework of its examination of the 2nd annual report, the Committee of Ministers had noted with concern that the Convention had no direct effect and had consequently invited the Italian authorities to intensify their efforts at national level as well as their contacts with the different bodies of the Council of Europe competent in this field.

In this interim resolution the Ministers’ Deputies indicated as follows:

“The Committee of Ministers ...

Noting ...

– the setting-up of a domestic remedy providing compensation in cases of excessive length of proceedings, adopted in 2001 (the ‘Pinto’ law), as well as the recent development of the case-law of the Court of Cassation, increasing the direct effect of the case-law of the European Court in the Italian legal system, while noting that this remedy still does not enable for acceleration of proceedings so as to grant effective redress to all victims;

Stressing that the setting-up of domestic remedies does not dispense States from their general obligation to solve the structural problems underlying violations;

Finding that despite the efforts undertaken, numerous elements still indicate that the solution to the problem will not be found in the near future (as evidenced in particular by the statistical data, the new cases before both domestic courts and the European Court, the information contained in the annual reports submitted by the government to the Committee and in the reports of the Prosecutor General at the Court of Cassation);

Stressing the importance the Convention attaches to the right to fair administration of justice in a democratic society and recalling that the problem of the excessive length of judicial proceedings, by reason of its persistence and extent, constitutes a real danger for the respect of the rule of law in Italy;

URGES the Italian authorities to enhance their political commitment and make it their effective priority to meet Italy’s obligation under the Convention and the Court’s judgments, to secure the right to a fair trial within a reasonable time to all persons under Italy’s jurisdiction;

The European Commission for the Efficiency of Justice was set up at the Council of Europe by Resolution Res(2002)12 with the aim of (a) improving the efficiency and the functioning of the justice of member States with a view to ensuring that everyone within their jurisdiction can enforce their legal rights effectively, thereby generating increased confidence of the citizens in the justice system and (b) enabling a better implementation of the international legal instruments of the Council of Europe concerning efficiency and fairness of justice.

In its framework programme (CEPEJ (2004) 19 Rev 2 § 6), the CEPEJ noted that the mechanisms which are limited to compensation are too weak and do not adequately incite the States to modify their operational process, and provide compensation only a posteriori in the event of a proven violation instead of trying to find a solution for the problem of delays.