CEDU - Caso Scordino
10 SCORDINO v. ITALY DECISION
standards laid down in the Convention and in the Strasbourg institutions’
case-law to be applied strictly.
As to the issue of quantum, the Government submitted that the Court of
Cassation could have determined whether the amount of compensation
obtained by the applicants had been adequate. On that point, they observed
that the two Court of Cassation judgments cited by the applicants were
consistent with the now settled line of case-law that the existence of non-
pecuniary damage did not follow automatically from a finding that the
length of proceedings had been unreasonable. The Government accepted
that the possibility of obtaining compensation was conditional on the
applicant’s adducing proof of the damage, or at least sufficient evidence to
give rise to a presumption on the part of the court. In that connection, the
Government pointed out that in certain judgments the Court of Cassation
had dismissed complaints concerning, for example, the inadequacy of an
award of compensation, on the ground that they were too vague and based
on mere allegations.
In conclusion, the Government considered that the applicants should
have appealed to the Court of Cassation, and asked the Court to dismiss
their complaint for failure to exhaust domestic remedies.
The Government raised a second objection, arguing that the applicants
did not have standing as victims.
They observed in that connection that in making an award to the
applicants, the Reggio di Calabria Court of Appeal had not only
acknowledged that there had been a violation of their right to a hearing
within a reasonable time but had also made good the damage sustained. In
the Government’s submission, the amount of compensation awarded was
not open to question by the Court, since the national court had made its
assessment on an equitable basis, acting within its margin of appreciation in
ruling on the award of just satisfaction.
The Government observed that Article 41 of the Convention did not
oblige the Court to award just satisfaction. In their submission, the Court
was therefore at liberty not to make an award, without having to give any
reasons for its decision, since its assessment was made on an equitable
basis; moreover, an applicant who was not satisfied with the amount
awarded did not have the possibility of applying to the Grand Chamber.
2. The applicants’ arguments
The applicants maintained that an appeal to the Court of Cassation was
not a remedy that had to be used, having regard to that court’s relevant case-
law, of which they cited two examples (see “Relevant domestic law and
They argued that it had not been open to them to submit complaints as to
the amount of compensation and the extent of the alleged damage.
SCORDINO v. ITALY DECISION 11
The applicants maintained that they were still “victims” within the
meaning of Article 34 of the Convention, in spite of the Reggio di Calabria
Court of Appeal’s decision, since the decision had not afforded redress for
the violation of the Convention found by that court. The Court of Appeal
had awarded the applicants an insufficient amount of compensation, owing
to the fact that the national courts did not consider the right to a hearing
within a reasonable time to be a fundamental right and that the Convention
was not regarded as applicable.
3. The Court’s assessment
The Court must first determine whether the applicants have exhausted
the remedies available to them in Italian law, as required by Article 35 § 1
of the Convention. The question in their case is whether they were required
to appeal to the Court of Cassation against the Court of Appeal’s decision
on a matter coming under the Pinto Act.
The Court points out that in recent cases concerning claims lodged with
courts of appeal (see Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX,
and Di Cola and Others v. Italy (dec.), no. 44897/98, 11 October 2001) it
held that the remedy introduced by the Pinto Act was accessible and that
there was no reason to question its effectiveness. Furthermore, the Court
took the view that, having regard to the nature of the Pinto Act and the
context in which it was passed, there were grounds for departing from the
general principle that the exhaustion requirement should be assessed with
reference to the time at which the application was lodged.
The Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 of the Convention obliges those seeking to bring
their case against the State before an international judicial or arbitral organ
to use first the remedies provided by the national legal system.
Consequently, States are dispensed from answering for their acts before an
international body before they have had an opportunity to put matters right
through their own legal system. The rule is based on the assumption,
reflected in Article 13 of the Convention – with which it has close affinity –
that there is an effective remedy available in respect of the alleged breach in
the domestic system whether or not the provisions of the Convention are
incorporated into national law. In this way, it is an important aspect of the
principle that the machinery of protection established by the Convention is
subsidiary to the national systems safeguarding human rights (see Akdivar
and Others v. Turkey, judgment of 16 September 1996, Reports of
Judgments and Decisions 1996-IV, p. 1210, § 65).
Although there is no formal obligation on Contracting States to
incorporate the Convention in their domestic legal system (see James and
Others v. the United Kingdom, judgment of 21 February 1986, Series A
no. 98, p. 48, § 86, and Christine Goodwin v. the United Kingdom [GC],
no. 28957/95, § 113, ECHR 2002-VI), it follows from the principle of
12 SCORDINO v. ITALY DECISION
subsidiarity outlined above that the national courts must, where possible,
interpret and apply domestic law in accordance with the Convention. While
it is primarily for the national authorities to interpret and apply domestic
law, the Court is in any event required to verify whether the way in which
domestic law is interpreted and applied produces consequences that are
consistent with the principles of the Convention (see Carbonara and
Ventura v. Italy, no. 24638/94, § 68, ECHR 2000-VI, and Streletz, Kessler
and Krenz v. Germany nos. 34044/96, 35532/97 and 44801/98, § 49,
ECHR 2001-II), of which the Court’s case-law is an integral part.
In this connection, the Court notes, lastly, that by substituting the words
“shall secure” for the words “undertake to secure” in the text of Article 1,
the drafters of the Convention also intended to make it clear that the rights
and freedoms set out in Section I would be directly secured to anyone
within the jurisdiction of the Contracting States (Document H (61) 4,
pp. 664-703, 733 and 927). That intention finds a particularly faithful
reflection in those instances where the Convention has been incorporated
into domestic law (see De Wilde, Ooms and Versyp v. Belgium, judgment of
18 June 1971, Series A no. 12, p. 43, § 82; Swedish Engine Drivers’ Union
v. Sweden, judgment of 6 February 1976, Series A no. 20, p. 18, § 50; and
Ireland v. the United Kingdom, judgment of 18 January 1978, Series A
no. 25, pp. 90-91, § 239). Nevertheless, the Convention, which lives
through the Court’s case-law, is now directly applicable in practically all the
Under Article 35 normal recourse should be had by an applicant to
remedies which are available and sufficient to afford redress in respect of
the breaches alleged. The existence of the remedies in question must be
sufficiently certain not only in theory but in practice, failing which they will
lack the requisite accessibility and effectiveness. However, there is no
obligation to have recourse to remedies which are inadequate or ineffective.
In addition, according to the “generally recognised rules of international
law” there may be special circumstances which absolve the applicant from
the obligation to exhaust the domestic remedies at his disposal. The rule is
also inapplicable where an administrative practice consisting of a repetition
of acts incompatible with the Convention and official tolerance by the State
authorities has been shown to exist, and is of such a nature as to make
proceedings futile or ineffective (see Akdivar and Others, cited above,
p. 1210, §§ 66-67).
The Court would emphasise that the application of the rule must make
due allowance for the fact that it is being applied in the context of
machinery for the protection of human rights that the Contracting Parties
have agreed to set up. Accordingly, it has recognised that Article 35 must be
applied with some degree of flexibility and without excessive formalism. It
has further recognised that the rule of exhaustion is neither absolute nor
capable of being applied automatically; in reviewing whether it has been
SCORDINO v. ITALY DECISION 13
observed it is essential to have regard to the particular circumstances of each
individual case. This means, amongst other things, that the Court must take
realistic account not only of the existence of formal remedies in the legal
system of the Contracting Party concerned but also of the general legal and
political context in which they operate, as well as the personal
circumstances of the applicant (ibid., p. 1211, § 69).
The Court has carried out a comparative analysis of the one hundred
Court of Cassation judgments available to date. It has noted that the
principles set forth in the two cases cited by the applicants (see “Relevant
domestic law and practice” above) have been consistently applied: in other
words, the right to a hearing within a reasonable time has not been regarded
as a fundamental right and the Convention and the Strasbourg case-law are
not directly applicable in relation to just satisfaction.
The Court has not found any instances in which the Court of Cassation
has entertained a complaint to the effect that the amount awarded by the
Court of Appeal was insufficient in relation to the alleged damage or
inadequate in the light of the Strasbourg institutions’ case-law. Such
complaints have been dismissed by the Court of Cassation, being treated
either as factual issues outside its jurisdiction or as issues arising on the
basis of provisions that are not directly applicable.
The Court reiterates that Article 6 § 1 secures to everyone the right to
have any claim relating to his civil rights and obligations brought before a
court (see Golder v. the United Kingdom, judgment of 21 February 1975,
Series A no. 18, p. 18, § 36, and Waite and Kennedy v. Germany
no. 26083/94, § 50, ECHR 1999-I). It accordingly safeguards everyone’s
right to a “hearing within a reasonable time”.
The right to a hearing within a “reasonable time”, as protected by
Article 6 § 1 of the Convention, is a fundamental right and an imperative for
all proceedings to which Article 6 applies; in so providing, the Convention
underlines the importance of administering justice without delays which
might jeopardise its effectiveness and credibility (see Pélissier and Sassi
v. France no. 25444/94, § 74, ECHR 1999-II).
Having regard to the foregoing, the Court concludes that there would
have been no point in the applicants’ appealing to the Court of Cassation as
their complaint concerned the amount of compensation and thus fell within
the categories referred to above. Furthermore, the applicants risked being
ordered to pay costs.
In conclusion, the Court considers that in the instant case the applicants
were not required to appeal to the Court of Cassation for the purpose of
exhausting domestic remedies. Accordingly, the Government’s first
objection must be dismissed.
That conclusion does not, however, call into question the obligation to
lodge a claim for compensation under the Pinto Act with the Court of
Appeal and the Court of Cassation, provided that it is clear from the case-
14 SCORDINO v. ITALY DECISION
law of the national courts that they apply the Act in keeping with the spirit
of the Convention and, consequently, that the remedy is effective.
The Court must next examine the Government’s second objection, based
on Article 34 of the Convention. The issue of whether a person may still
claim to be the victim of an alleged violation of the Convention essentially
entails on the part of the Court an ex post facto examination of his or her
situation. In this connection, the question whether he or she has received
reparation for damage caused – comparable to just satisfaction as provided
for under Article 41 of the Convention – is an important issue. It is the
Court’s settled case-law that where the national authorities have found a
violation and their decision constitutes appropriate and sufficient redress,
the party concerned can no longer claim to be a victim within the meaning
of Article 34 of the Convention.
The Court accordingly considers that an applicant’s status as a victim
may depend on compensation being awarded at domestic level on the basis
of the facts about which he or she complains before the Court (see Andersen
v. Denmark, no. 12860/87, and Frederiksen and Others v. Denmark,
no. 12719/87, Commission decisions of 3 May 1988; Normann v. Denmark
(dec.), no. 44704/98, 14 June 2001; and Jensen and Rasmussen v. Denmark
(dec.), no. 52620/99, 20 March 2003) and on whether the domestic
authorities have acknowledged, either expressly or in substance, the breach
of the Convention. Only when those two conditions are satisfied does the
subsidiary nature of the protective mechanism of the Convention preclude
examination of an application (see Eckle v. Germany, judgment of 15 July
1982, Series A no. 51, p. 32, §§ 69 et seq., and Jensen v. Denmark (dec.),
no. 48470/99, ECHR 2001-X).
The Court further reiterates that Article 34 of the Convention requires
applicants to be personally affected by the measure of which they complain,
and that the provision cannot be used to bring an actio popularis before the
Court. Moreover, the conditions for lodging an application are not
necessarily the same as national criteria relating to locus standi (see
Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 138,
In the instant case the Reggio di Calabria Court of Appeal acknowledged
in its decision of 1 July 2001 that the length of the proceedings instituted by
the applicants had been excessive and awarded them an overall sum of
EUR 2,450 – that is, approximately EUR 600 each.
The Court considers that the Court of Appeal’s acknowledgment of the
excessive length of the proceedings satisfies in substance the first condition
laid down in the Court’s case-law: acceptance by the authorities that there
has been an infringement of a right protected by the Convention.
As regards the second condition, namely whether the authorities have
provided appropriate redress for the wrong suffered by the applicants, the
Court notes that the applicants argued before it that the amount awarded by
SCORDINO v. ITALY DECISION 15
the Court of Appeal could not be regarded as sufficient to make good the
alleged damage and breach.
The Court notes that it has held in numerous Italian length-of-
proceedings cases that appropriate relief for the damage sustained should
always take the form of financial compensation. In that context, in cases
similar to the present one – for example, De Pilla v. Italy (no. 49372/99,
25 October 2001) and Tartaglia v. Italy (no. 48402/99, 23 October 2001) –
the amounts awarded by the Court have been significantly higher. In those
two cases it awarded ITL 10,000,000 (approximately EUR 5,000) and
ITL 14,000,000 (approximately EUR 7,000) respectively.
It cannot be disputed that the assessment of the length of proceedings and
the effects thereof, particularly as regards non-pecuniary damage, does not
lend itself to precise quantification and must by its very nature be carried
out on an equitable basis. The Court consequently accepts that judicial or
other authorities may calculate compensation in a length-of-proceedings
case in a manner not entailing strict and formalistic application of the
criteria adopted by the Court. However, in the present case the amount
awarded to the applicants by the Reggio di Calabria Court of Appeal does
not bear a reasonable relationship to the amounts awarded by the Court in
the similar cases cited above, those amounts being more than ten times
higher than the amount awarded to the applicants by the Court of Appeal.
Although the margin of appreciation enjoyed by the national courts
should be observed, those courts must also comply with the Court’s case-
law by awarding corresponding amounts.
Having regard to the evidence before it, the Court considers that there is
no justification for such a discrepancy between the Strasbourg case-law and
the application of the Pinto Act in the instant case. Consequently, the sum
awarded to the applicants cannot be regarded as adequate and hence capable
of making good the alleged violation.
It follows that the applicants can claim to be victims within the meaning
of Article 34 of the Convention and that the Government’s second objection
should be dismissed.
4. The merits
The Government observed that the length of the proceedings could not be
considered excessive, in view of the objective difficulties that had arisen
during their conduct, such as the new law on expropriation, the death of
Mr A. Scordino and the lack of judges. The Government observed in that
connection that the case had been dealt with by three successive
The applicants disputed the Government’s submissions.
The Court considers, in the light of the parties’ submissions, that this
complaint raises complex issues of fact and law which cannot be resolved at
this stage in the examination of the application, but require examination on
16 SCORDINO v. ITALY DECISION
the merits. It follows that this part of the application cannot be declared
manifestly ill-founded within the meaning of Article 35 § 3 of the
2. The applicants complained of an infringement of their right to the
peaceful enjoyment of their possessions in that compensation had been paid
to them a long time after the confiscation of their land and had not been
sufficient, having been calculated on the basis of section 5 bis of
Law no. 359/1992, applied retrospectively. They alleged a violation of
Article 1 of Protocol No. 1, which provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by the general principles of
The preceding provisions shall not, however, in any way impair the right of a State
to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other
contributions or penalties.”
The applicants also complained that the enactment of Law no. 359/1992
and its application in their case had amounted to interference by the
legislature in breach of Article 6 of the Convention, the relevant parts of
“1. In the determination of his civil rights and obligations ..., everyone is entitled to
a fair ... hearing ... by [a] ... tribunal ...”
The Government argued that the application of section 5 bis of Law
no. 359/1992 in the instant case did not raise any issues under Article 1 of
Protocol No. 1 and Article 6 of the Convention.
They observed in that connection that in the calculation of compensation
for expropriation, a balance had to be struck between private interests and
the general interest. Accordingly, the amount of compensation deemed
adequate could be lower than the market value of the land in question, as,
indeed, the Constitutional Court had acknowledged (judgments nos. 283 of
16 June 1993, 80 of 7 March 1996, and 148 of 30 April 1999).
Relying on the Court’s judgments in The Holy Monasteries v. Greece
(judgment of 9 December 1994, Series A no. 301-A), Lithgow and Others
v. the United Kingdom (judgment of 8 July 1986, Series A no. 102), and
James and Others v. the United Kingdom (judgment of 21 February 1986,
Series A no. 98), the Government submitted that the present case should be
examined in the light of the principle that public-interest grounds (such as
economic reform or policies designed to promote social justice) could
militate in favour of awarding compensation below the full market value.
In the Government’s submission, that reflected a political desire to
establish a system going beyond traditional nineteenth-century liberalism.
SCORDINO v. ITALY DECISION 17
The fundamental issue was whether the gap between the market value and
the compensation paid was reasonable and justified.
The Government acknowledged that the provision in issue, section 5 bis,
had been guided by budgetary considerations. They nonetheless remarked
that, in view of its temporary nature, the provision had been declared
constitutional by the Constitutional Court.
The Government observed that the land’s market value had not been
excluded from the calculation used to determine the compensation payable,
but had been adjusted by another criterion, the ground rent calculated on the
value entered in the land register.
They submitted in conclusion that the system applied in the instant case
for calculating the compensation payable for the expropriation was not
unreasonable and had not upset the necessary fair balance.
As to the time that had elapsed between the expropriation and the
payment of compensation, the Government noted that the proceedings in the
Reggio di Calabria Court of Appeal had not been instituted until 1990 and
contended that the applicants could have brought a civil action from 1983
onwards. That effectively meant that they themselves had contributed to the
delay in payment of the compensation.
In addition, the Government observed that the damage caused by the
passing of time had been made good by the payment of interest.
The Government further maintained that the retrospective application of
section 5 bis of Law no. 359/1992 was compatible with the Convention.
They pointed out in that connection that, in accordance with the Convention
institutions’ case-law and Italian law, the principle that laws should not have
retrospective effect was not absolute. In the instant case, the law in issue
had been enacted against a background in which the criterion of market
value for the calculation of compensation for expropriation had already been
revised twice by the Italian parliament. After the Constitutional Court had
abrogated those laws and the criterion of market value as laid down in Law
no. 2359/1865 had been deemed applicable again in accordance with the
Court of Cassation’s case-law, the law in issue had filled the legal vacuum
created by the Constitutional Court’s judgments. The enactment of Law no.
359/1992 had therefore responded to that need.
The Government submitted, lastly, that from 1993 onwards the
compensation received by the applicants could have been 40% higher if
they had accepted the offer made to them by the authorities. In conclusion,
the Government submitted that the applicants’ complaint was ill-founded.
The applicants observed that the compensation they had been paid for the
expropriation corresponded to half the market value of the land and that that
amount had subsequently been decreased by a further 20% once tax had
been deducted at source pursuant to Law no. 413/1991. As a result, the
amount they had actually received represented 40% of the value of their
+1 anno fa
La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
Il documento riporta il testo della sentenza della Corte di Giustizia Europea riguardo il caso Scordino in cui si trattava di determinate l'indennizzo a seguito di espropriazione e la ragionevole durata del processo.
I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Costituzionale Avanzato e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Perugia - Unipg o del prof Cerrone Francesco.
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