CEDH · CASELAW;CLIN;ENG — 5 juillet 2007

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Italy - 62155/00 Judgment 5.7.2007 [Section II] Article 35 Article 35-1 Exhaustion of domestic remedies Effective domestic remedy Knowledge of change in the case-law of the Court of Cassation could not be assumed until six months after the relevant decision was lodged with the registry: preliminary objection dismissed   Facts : The applicant company brought proceedings against two parties in the magistrate’s court to obtain compensation for damage suffered in a road accident. Preparations for trial began in 1992 and the judgment was delivered in 1998. Relying on the “Pinto”   Act, the applicant took the case before the Court of Appeal, alleging that the proceedings had taken too long and requesting compensation on an equitable basis for the non-pecuniary damage sustained. The Court of Appeal found that the proceedings had been unreasonably lengthy but rejected the claim for compensation as the applicant had failed to prove that any damage had been suffered. The applicant appealed on points of law, arguing that once proceedings had been judged excessively long, the legal entities concerned did not have to adduce proof of damage, which was obvious from the bare facts. In 2003 the Court of Cassation rejected the appeal. It held that the Pinto Act did not recognise damage in re ipsa but required proof to be provided. In a judgment deposited with the registry in January 2004 the Court of Cassation departed from its case-law by doing away with the only exception to the rule of exhaustion of the remedy afforded by the Pinto Act, which concerned appeals to the Court of Cassation against decisions of the Court of Appeal when the excessive length of the proceedings had been established and the appellants complained of the sum awarded in compensation on an equitable basis. In a judgment deposited with the registry in September 2004 the Court of Cassation held that there was no obstacle in domestic law to the award of compensation on an equitable basis to “legal persons” in keeping with the standards of the Strasbourg Court. From that moment on, appeals on points of law by legal persons had once again acquired a sufficient degree of legal certainty, in theory and in practice, to be used again, and for their use to be mandatory, for the purposes of Article   35   §   1 of the Convention. Law : Article   35 § 1 – Applicant companies were required to exhaust the remedy of appeal on points of law under the Pinto procedure from the time when the public could no longer be considered to be unaware of the judgment of the Court of Cassation stating that there was no obstacle in domestic law to the award of fair compensation to “legal persons” in keeping with the standards of the Strasbourg Court, i.e. from March 2005 onwards. The applicant company had appealed to the Court of Appeal and then to the Court of Cassation, which had dismissed its appeal well before that date. That being so, the Pinto procedure had come to an end well before March 2005 and, in any event, the applicant company had appealed to the Court of Cassation: preliminary objection of non-exhaustion of domestic remedies rejected . Article   34 – In finding that the proceedings had been excessively long and rejecting the request for compensation for non-pecuniary damage, the Court of Appeal had failed to compensate properly and adequately for the infringement it had just found. The redress was insufficient: victim status upheld . Article   6 § 1 – The period of time concerned was a little over six years and two months for a single level of jurisdiction, which meant that the length of the impugned proceedings was excessive and did not meet the “reasonable time” requirement. Conclusion : violation (unanimously). Article   13 – The Pinto Act laid down no limits in respect of compensation, and the amount awarded was left to the discretion of the national courts. The mere fact that the amount awarded in compensation was not large was not enough in itself to challenge the effectiveness of the “Pinto” remedy. Conclusion : no violation (unanimously). Article   41 – EUR 1,800 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes