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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

practice” above).

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

[GC],

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

States Parties.

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,

[GC],

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

[GC],

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,

ECHR 2000-VIII).

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

investigating judges.

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

Convention.

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

international law.

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

which provide:

“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

property.


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DESCRIZIONE DISPENSA

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.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
Università: Perugia - Unipg
A.A.: 2011-2012

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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