Matteo De Longis

Mancata esecuzione delle sentenze CEDU: l’Assemblea Parlamentare del Consiglio d’Europa lancia l’allarme

Il Comitato Affari Legali dell’Assemblea Parlamentare del Consiglio d’Europa ha espresso profonda preoccupazione a fronte dell’elevatissimo numero di sentenze CEDU che non trovano adeguata ed effettiva applicazione negli Stati convenuti – i numeri parlano di circa 11.000 casi.

Il firmatario del rapporto annuale sull’implementazione delle pronunce della Corte – Klaas de Vries – ha affermato che, nonostante alcuni progressi, le dimensioni del problema appaiono allarmanti, evidenziando altresì come circa l’80% dei provvedimenti ineseguiti riguardino soltanto 9 Stati – Italia, Turchia, Russia, Ucraina, Romania, Grecia, Polonia, Ungheria e Bulgaria.

In tali Stati, la stragrande maggioranza delle condanne emesse dal Giudice della Convenzione dipendono da problemi strutturali degli ordinamenti interessati che, a loro volta, generano un considerevole numero di casi ripetitivi.

In diversi casi, aldilà delle oggettive difficoltà riscontrabili nel porre rimedio a deficit sistemici di tutela dei diritti fondamentali, il Relatore ha riscontrato una generale riluttanza da parte degli Stati condannati nell’ottemperare ai decisa di Strasburgo; a fronte di tale atteggiamento, dunque, il Comitato Affari Legali ha raccomandato al Comitato dei Ministri un più incisivo e deciso ricorso agli strumenti di suasion a disposizione dell’organo ministeriale, ivi compresa la c.d. “procedura d’infrazione” prevista e regolamentata dall’art. 46 §§ 4 e 5 della Convenzione.

Con specifico riferimento all’Italia, l’addendum al rapporto si concentra, come anticipato, sui diversi problemi strutturali che affliggono il paese: irragionevole durata dei procedimenti giudiziari, inefficacia del rimedio previsto a tal proposito – c.d. l. Pinto -, espulsione di stranieri in violazione delle norme convenzionali, espropriazione indiretta e condizioni dei detenuti.

Si riportano di seguito, – rimandando in calce per la versione integrale del rapporto e del relativo addendum – le osservazioni rese con riferimento all’Italia :

4. Mr Pourgourides’ report identified the main problems for Italy to be:

– excessive length of judicial proceedings;

– lack of an effective remedy in that regard;

– the expulsion of foreign nationals in violation of the Convention.

5. The report also dealt with an issue of “indirect expropriation”. On 22-23 October 2014, I carried out a fact-finding visit to Rome, where I discussed these problems with the authorities and representatives of civil society (Amnesty International, Associazione Antigone, focusing on detainees’

1.1. Excessive length of judicial proceedings

6. This issue has plagued the Italian justice system for decades, the backlog of cases having increased steadily each year. Currently, the Committee of Ministers (CM) is examining more than 2,000 cases concerning this issue. Most of these cases relate to the situation before 2001, when a compensatory remedy was introduced in Italy, while the more recent cases concern issues related to the functioning of this remedy.

7. In its Interim Resolution (2010)224 of 2 December 2010 the CM urged Italy to provide statistics on the situation of the backlog of cases and to adopt effective measures to solve this problem. According to the statistics provided by the Italian authorities, in their action plan of 25 October 2011, an important development can be noted. By the end of 2010, the number of pending civil cases in the Italian courts had decreased by roughly 360,000 to 5,466,346 (i.e. by 4%). Furthermore, at the date of the action plan, and the number of new civil cases had declined in comparison with previous years mainly due to a new procedure of compulsory preliminary mediation in certain civil law matters.

8. The said action plan mentions other measures taken: introducing a simplified procedure for less complex civil disputes and a minimal court fee in proceedings against administrative sanctions as a deterrent to manifestly ill-founded applications. On 6 October 2011, new legislation entered into force, which seeks to simplify civil proceedings, limiting the types of civil procedures to three. Further measures adopted include the digitalisation of case files, allowing easier and faster access through information technology. A uniform method of managing civil case files in appeal courts and tribunals throughout Italy was put into operation at the end of March 2011. Finally, best practices have been disseminated widely and of honorary judges were appointed to clear the backlog of cases.

9. At the 1136th meeting in March 2012, the CM welcomed the renewed commitment expressed by the Italian authorities towards adopting further measures and monitoring the effects of those already adopted , as well as the slight decrease in the length of bankruptcy proceedings and in the backlog of civil proceedings. However, it demanded that “additional large scale measures” be adopted, as it considered that the situation was “deeply worrying”, constituted “a serious danger for the respect of the rule of law, resulting in a denial of rights enshrined in the Convention” and created “a serious threat to the effectiveness of the system of the Convention”. This evaluation was further underscored by a letter, of 14 December 2011, sent by the Registrar of the Court to the Chairperson of the CM, drawing the CM’s attention to the seriousness of the situation in view of the significant number of cases which continue to pour into the Court.

10. Despite repeated calls from the Committee of Ministers (see the decision adopted at the 1144th meeting (DH) (June 2012), the authorities appear to still have not addressed the issues related to the monitoring of the impact of the measures already taken in relation to civil proceedings. As regards the administrative proceedings, the last information was submitted on 30 July 2012. The authorities indicated that a legislative reform resulted in the adoption in 2010 of a new Code of Administrative Proceedings, which came into force on 26 September 2010. As a consequence of this reform, in 2011, the administrative courts (the Council of State and the regional administrative courts) registered an overall decrease of the backlog. According to the Italian authorities, although the results of this reform are “hampered” by the need to process the backlog, the length of administrative proceedings is presently in a better position when compared to that of the civil proceedings. However, the authorities have not measured the backlog of administrative proceedings and have not yet drawn up a timetable for anticipated medium-term results with a view to assessing the impact of this reform on the backlog and identifying additional measures, if need be, of which the CM took note in its decision taken at its 1157th (DH) meeting in December 2012.

11. In a letter from the Registrar of the Court to the Chair of the Committee of Ministers dated 22 June 2012, Italy appeared as the first among the seven member States which have the highest number of repetitive applications pending before the Court with more than 8,000 applications concerning the length of proceedings and the implementation of decisions taken under the Pinto law. At its 1157th (DH) meeting (December 2012), the CM once again recalled that excessive delays in the administration of justice resulted “in a denial of the rights enshrined in the Convention” and were “a serious threat to the effectiveness of the system of the Convention”, “underlined again the urgency to stop the flow of further repetitive applications before the European Court and the urgency to find a sustainable solution” to this structural problem and urged the Italian authorities to provide a “consolidated action plan”.

12. In April 2013, the Italian authorities presented an update about the measures taken or planned, which was carefully examined by the Department for the Execution of judgments and decisions of the ECtHR in an information document CM/Inf(2013) of May 2013. The authorities announced some measures aimed at improving the efficiency of the judicial system, such as specialization of judges, some organizational measures to be taken by the heads of the judicial offices (such as preparing annual action plans for the handling of cases) and, in civil cases, by judges (such as setting a “trial timetable”), dissemination of best practices and wider use of information technology. As regards civil cases, as of 11 September 2012, new procedural rules on appeals, allowing judges to filter more quickly manifestly illfounded appeals, entered into force. The obligatory mediation in civil and commercial cases introduced in 2010 was declared unconstitutional by the Constitutional Court in 2012. The authorities also provided statistical data, but only concerning the first instance courts. These data showed an increase in the average length of civil proceedings (1,139 days in 2012) and a decreasing trend as regards the backlog of cases. As regards criminal cases, the authorities informed about their intention to decriminalize some minor offences, but failed to provide updated statistical data. Concerning administrative courts, they registered an overall decrease of their backlog in 2012. The authorities also showed that the average length of bankruptcy proceedings had decreased in 2012.

13. At its 1172nd DH meeting in June 2013,20 the CM stressed again the need to set up a domestic monitoring mechanism in order to evaluate the impact of the reforms. It also invited the Italian authorities to finalise the “consolidated action plan”, in close cooperation with the Department for the Execution of judgments and decisions of the ECtHR and by taking into account its comments included in document CM/Inf(2013). It welcomed the determination expressed by the Italian authorities in order to adopt the necessary measures to effectively solve the problem of the excessive length of judicial proceedings. The CM recalled some encouraging trends for the bankruptcy and administrative proceedings and noted that most of the reforms announced for the civil proceedings had been adopted. However, it observed that additional information (in particular concerning criminal proceedings) and precise and updated data were necessary in order to properly assess the situation.

14. During and following my visit to Rome, I was provided additional information concerning the measures taken by the Italian authorities to reduce the length of civil proceedings between 2013 and 2014 (including those introduced by Decree Laws 69/2013, 132/2014 and 90/2014): “assisted negotiation” (out-of-court dispute resolution procedure, with the help of lawyers), transfer to an arbitrator (who must be a lawyer), new rules on mediation, more frequent use of the summary procedure, streamlining and acceleration of forced execution, further computerization (making obligatory the submission of documents in electronic form in some cases), hiring of additional qualified staff to assist judges (ufficio per il processo), hiring 400 “auxiliary judges” at courts of appeal and appointing judges as law clerks at the Court of Cassation (magistrato assistente di studio). According to the Ministry of Justice, the delays in civil proceedings were mainly due to the backlog of cases at appeal courts and/or the Court of Cassation. During my meeting with the President of Cassation, he raised the issue of access to this jurisdiction, stressing that the cassation appeal should be excluded for small claims. As of 31 December 2013, there were 5.16 million civil cases pending (compared with 6 million at the end of 2009, this shows a decreasing trend). Interestingly, according to the European Commission for the Efficiency of Justice (CEPEJ) report of 2014 (based on data from 2012), the Italian judges are ones of the most productive in Europe. As regards criminal cases, I was informed at my meeting in the Chamber of Deputies that the initiative to decriminalize some (petty) offences, the reform of statutory limitations and other structural measures were in the pipeline. Concerning administrative court proceedings, they usually lasted 5 years (for two instances), which was not a good result, according to the legal advisors of the Council of Ministers’ office.

1.2. Lack of effective remedy

15. The Mostacciuolo Giuseppe (I) group of cases deals with over 160 such cases. The 2010 quasi-pilot judgment Gaglione and others concerns 475 applicants, who claimed a delay in the payment of compensation. The Court found in the latter case that delays by the Italian authorities in enforcing “Pinto decisions” ranged from 9 to 49 months, and that in 65% or more of the cases there was a 19-month delay. The Court regarded this to be not only an aggravating factor with respect to Italy’s responsibility under the Convention, but also a threat to the future of the European human rights system. It also noted that almost 4,000 cases concerning, amongst others, delays in paying “Pinto compensation”, were pending before it.

16. In its Interim Resolutions (2009) 42 of 19 March 2009 and (2010) 224 of 2 December 2010 the CM requested Italy to amend the “Pinto Law” providing compensation for victims of unreasonably long judicial proceedings. While domestic case law developments showed compliance with the criteria set by the Court as regards determination of compensatory amounts, the delays in paying out the compensation awarded by national courts were still a serious problem. The CM included several proposals in its Interim Resolution CM/ResDH(2010) 224, including amendments of the Pinto Act. On 18 October 2011, Italy transmitted an action plan stating that the Court’s and the CM’s suggestions were not carried at national level due to the financial crisis. Instead, Italy considered it more effective to allocate additional funds to addressing the root problem, namely the excessive length of proceedings, and resolving the large number of complaints in the judicial system.

17. At its 1136th meeting (DH) in March 2012, the CM welcomed the Italian authorities’ commitment towards finding a solution to delays in payment of amounts awarded under the Pinto Act, and invited the authorities to submit concrete proposals in this respect, along with a calendar for the implementation of proposals. Despite the submission of an updated action plan of 30 March 2012, in accordance with the decision adopted at the 1144th meeting (DH) (June 2012), the Italian authorities still had to provide the CM with a detailed explanation on the announced plan for payment of arrears under the Pinto proceedings. They have only confirmed that on 30 October 2012, the Ministry of Justice had begun paying these arrears for the period 2005 – 2008.

18. Amendments had been made to the Pinto law by Legislative Decree No. 83 issued on 22 June 2012, which came into force on 26 June 2012. The new provisions introduced a written procedure for the examination of the compensation claims. Other provisions conditioned the access to the Pinto remedy upon termination of the main proceedings and excluded or limited the compensation in certain cases. The amendments occasioned an exchange between the CM Secretariat and the authorities as regards their compatibility with the Convention and the European Court’s case law on the effectiveness of the remedies and compensation criteria. Article 3 §7 of the Pinto law, which provides that the payment of the compensation is made within the limit of the available funds, has not been amended. Under the new legislation, the purely compensatory nature of the Pinto remedy is maintained. At its 1157th (DH) meeting in December 2012, the CM noted with concern that the said amendments might raise issues as to their compatibility with the Convention and the Court’s case-law.

19. In November 2012, the authorities announced that they envisaged changing the system of financing the “Pinto law” compensation, that they exempted from seizure the funds allocated for such payments and that they allocated 50 million euro for them in the budget for 2013. However, no timetable for the adoption of the reform of the financial system set by the Pinto law was presented.

20. In its decision taken at its 1172nd (DH) meeting in June 2013, the CM invited again the Italian authorities to provide information on lifting budgetary limitations on the payment of the compensation stemming from the Pinto law application and on allocating funds for the payment of arrears in this compensation. It stressed the urgency to stop the flow of repetitive applications before the European Court caused by the deficiencies in the “Pinto law”.

21. On 5 September 2013, Italy provided new information pertaining to the progress made to address the issue of repetitive cases before the ECtHR concerning the functioning of the Pinto mechanism. According to an action plan established for 2012-2014, agreed with the Registry of the ECtHR, the authorities aimed at closing over 7,000 cases pending before the Court by proposing friendly settlements or unilateral declarations.

22. Following my visit to Rome, I was informed that funds for the payment of Pinto compensations had increased and that the Ministry of Justice disposed of 100 million euros (55 million attributed for 2013-2015 plus 45 million added in 2014) for this purpose. In 2013, the State’s General Accounting Officer authorized the Ministry of Justice to pay such compensations, even if they were no funds in the relevant budgetary chapter, by using the “suspended account” procedure (i.e. using money advanced by the Bank of Italy). This meant that, in practice, Article 3 §7 of the Pinto law was irrelevant.

1.3. The expulsion of foreign nationals

23. The Saadi group of cases concerned potential violations of Article 3 if the applicants had been expelled to their country of origin (in these cases, Tunisia), where there is was a real risk of them being subjected to ill-treatment. The Ben Khemais group of cases, (which includes also the Mannai, Toumi, and Trabelsi judgments), concerns violations of Articles 3 and 34 due to the applicants’ expulsion to Tunisia, notwithstanding the real risk of ill-treatment they faced in this country and in disregard of the Court’s interim measures requiring Italy that the applicants not be expelled until further notice.

24. In a series of inadmissibility decisions against Italy of 2012, the Court confirmed its new position, according to which there were no substantial grounds to believe that applicants would face a real risk of being ill-treated in Tunisia, due to the recent democratic transition in this country. Following these decisions and the individual and general measures taken by the Italian authorities to implement the judgments from the Saadi group, at its 1211th DH meeting in November 2014, the CM declared the cases closed.

25. As regards more specifically the Ben Khemais group of cases, at its 1108th DH meeting in March 2011, the CM again requested the authorities to provide examples showing that interim measures indicated by the ECtHR were respected in practice, “in particular when Justices of Peace are required to validate expulsions ordered by the Ministry of Interior and Prefects”, and to provide information on “the feedback requested from courts of appeal by the Ministry of Justice on the implementation of the requirements of the Convention and on measures envisaged to create a mechanism to ensure that all relevant authorities are rapidly informed when an interim measure is indicated by the European Court”. Subsequently, the Italian authorities have provided an action report; however, it appears that the authorities are still expected to clarify some aspects related to the individual and general measures taken in this group.

26. Interestingly, the CM is also now examining the Hirsi Jamaa and others case, which concerns the interception at sea and transfer to Libya by the Italian military authorities of 11 Somalian and 13 Eritrean nationals in May 2009. According to the Court, the applicants were exposed to the risk of being subject to illtreatment in Libya and to the risk of being arbitrarily returned to their countries of origin (two violations of Article 3 of the Convention). Their removal to Libya was of collective nature (violation of Article 4 of Protocol No. 4) and they did not dispose of an effective remedy (violation of Article 13 taken together with Article 3 of the Convention and Article 4 of Protocol No. 4). The CM received a number of submissions from civil society and from the UNHCR, calling upon the Italian authorities to prevent similar cases of refoulement in the future. The Italian authorities provided an action plan on 06 July 2012. On 25 June 2014, the Italian authorities submitted an action report, in which, they assured that since the judgment became final in 2012, pushbacks such as those at the root of the violations in this case did no longer take place. The authorities also confirmed that migrants intercepted at sea enjoyed today the full protection of Italian legislation and they could lodge their complaints with a competent authority to obtain an assessment of their asylum request before any removal measure was enforced. Moreover, procedures adopted by the Italian Navy were in conformity with international and domestic legislation, including those on fundamental rights.

27. At its 1208th DH meeting in September 2014, the CM noted with interest the efforts made by Italian authorities to obtain assurances that the applicants would not be subjected to treatment incompatible with Article 3 of the Convention in Libya or arbitrarily repatriated to Somalia or Eritrea. The CM, furthermore, recalled the firm assurances given by the authorities about the incorporation in the Italian law of the clarifications given in the said judgment as to the requirements of the Convention and practice to prevent similar pushbacks or expulsions of foreign nationals in the future. It requested the authorities to provide by 1 December 2014 more detailed information on the practical measures of implementation taken, including instructions, guidelines and training, in order to examine the possibility of closing the case. As stressed by my interlocutors in Rome, both the authorities and NGOs, Italy has being making major efforts to rescue human lives at sea, namely through the Mare Nostrum operation, which had saved more than 140,000 people since October 2013 and had been replaced by the Frontex operation Triton as of 1 November 2014. However, more support from the European Union and other states was needed to tackle this problem.

1.4. Other issues

a) “Indirect expropriation”

28. The issue of the practice known as “indirect expropriation” (violations of Article 1 of Protocol No. 1) still needs to be tackled. The CM is currently examining the Belvedere Alberghiera SRL group, which consists of more than 80 cases. The Italian authorities have introduced several legislative measures, which the CM welcomed in its Interim Resolution CM/ResDH(2007)3. In October 2007, the Constitutional Court declared unconstitutional some provisions on expropriations in the public interest. However, the CM is still awaiting information concerning further general measures (in particular, on whether there is any reduction or suppression of the practice of indirect expropriation, as well as on the dissuasive effect of the Law No. 296/2006, according to which the damages for illegal occupation of land are covered by the budget of the responsible administration).

b) Prison conditions

29. Since 2009, the CM has also been examining issues of prisons overcrowding and detention conditions in Italy. The matter already appeared with the Sulejmanovic case, in which the Court found a violation of Article 3 of the Convention in relation to the detention conditions of the applicant. Moreover, in the case of Cirillo v. Italy, the Court found a violation of Article 3 of the Convention on account of the inadequacy of the medical care provided in prison. In consideration of the entity of the problem of the inhuman and degrading detention conditions deriving mainly from a structural problem of overcrowding in Italian prison facilities, the Court delivered a pilot judgment in Torreggiani and others v. Italy, in which it requested Italy to put in place, by 27 May 2014, a remedy or combination of remedies providing redress in respect of violations of the Convention resulting from overcrowding in prison. The Court also stressed that long-term measures were needed to resolve the problem and noted that at 13 April 2012, the rate of overpopulation in Italian prisons was at 148%, of which 42% of prisoners were detained on remand.

30. The authorities provided an action plan on 29 November 2013, followed by additional information and then by a revised action plan on 15 September 2014. At its 1201st DH meeting (June 2014), the CM welcomed the authorities’ commitment to resolve the problem of prison overcrowding and the progress made in this area, including a significant drop in the prison population and an increase in living space to at least 3 m2 per detainee. It also welcomed the introduction of a preventive remedy and on the steps taken to introduce a compensatory remedy. Following the adoption of a law-decree providing for the latter remedy, in September 2014, the Court found that the remedies introduced by Italy and allowing detainees to complain about possible violations of Article 3 of the Convention were in principle effective..At its 1214 DH meeting (2-4 December 2014), the CM welcomed the new remedies and underlined the importance of monitoring their implementation. It noted with interest the latest statistics provided by the authorities, which continue to show a reduction of prison overcrowding, and invited the authorities to provide a consolidated action plan by 1 December 2015. In light of the progress made in executing these judgments, the CM transferred these cases to the standard procedure.

31. During my visit in Rome, the authorities informed me that efforts were being made to reduce the problem of overcrowding. Representatives of NGOs agreed that some improvements have been visible, but complained about very poor conditions of detention of migrants in temporary centres.

c) The M. C and others case

32. Another case – M.C. and others, – is being examined by the CM under its enhanced supervision procedure. It concerns a systemic problem stemming from a legislative intervention which cancelled retrospectively and in a discriminatory manner the benefit of an annual adjustment of a compensation allowance paid to the applicants or to their deceased relatives for having suffered accidental viral contamination (violations of Article 6§1 and of Article 1 of Protocol No. 1 taken alone or in conjunction with Article 14). The Court invited the authorities to set, by 3 June 2014, a binding time-limit for guaranteeing the realization of the entitlement to the annual adjustment. The Italian authorities submitted a communication regarding general measures on 22 September 2014. In December 2014, the CM decided to resume consideration of the case at the latest at its 1242nd meeting (December 2015), with a view to examining the status of the adoption.

Committee on Legal Affairs and Human Rights – Implementation of judgments of the European Court of Human Rights: 8th report – 26.06.2015 Provisional Version,

Committee on Legal Affairs and Human Rights – Implementation of judgments of the European Court of Human Rights: 8th report Addendum to the report – 26.06.2015 Provisional Version

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