CASE OF K. v. ITALY
Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award
9. The applicant, a Polish citizen living in Katowice, Poland, and Mr P., an Italian citizen living in Italy, are the parents of a daughter who was born out of wedlock on 19 November 1988. The latter was registered with the registry of births, deaths and marriages as the child of the applicant and Mr P. Since the child’s birth, Mr P. has not assumed any parental duties. 10. The applicant instituted proceedings against Mr P. in the Katowice District Court, claiming maintenance for her minor daughter. On 23 June 1993 the Katowice District Court ordered the defendant in absentia to pay maintenance in an amount equivalent to 350 zlotys (PLN) (approximately 73 euros (EUR)) per month from 19 November 1988, plus statutory interest should he default. This decision became final on 15 July 1993. 11. Having received no payments, on 30 May 1994 the applicant sought to avail herself of the United Nations Convention on the Recovery Abroad of Maintenance of 20 June 1956. She applied to the Katowice District Court (acting as the Transmitting Agency) for the recovery of maintenance through the Italian Ministry of the Interior (acting as the Receiving Agency), as provided for by that convention. In her request, the applicant first asked for payment of the sum due of PLN 350 per month plus default interest which, by 1 January 1994, came to a total of PLN 21,350 (approximately EUR 4,495). The applicant also requested an increase in maintenance from PLN 350 per month to PLN 650 (approximately EUR 137) per month, on the grounds that she had learnt that Mr P. was earning 3,000 United States dollars per month and that the costs of bringing up the child were constantly rising. Finally, she asked the Italian authorities to start judicial proceedings against Mr P. to execute the decision of the Katowice District Court, and to recover her court costs if Mr P. refused to comply with the judgment. 12. On 30 May 1994 the Katowice District Court sent the applicant’s request to the Italian Ministry of the Interior. 13. In a letter sent to the Katowice District Court on 18 October 1994, the Ministry of the Interior confirmed that it had received the applicant’s request on 7 October 1994 and had referred it to the Prefecture of Terni. It added that, in so far as the existing decision obliged Mr P. to pay PLN 350 per month, a different amount could not be claimed. On 3 May 1996 the Ministry of the Interior sent another letter to the Katowice District Court informing it that Perugia District State Counsel had been appointed to initiate proceedings for the execution of the decision. 14. On 27 December 1996 Perugia District State Counsel informed the Ministry of the Interior that he had started these proceedings in November 1996. 15. On 27 February 1997 the Perugia Court of Appeal held a hearing at which it decided that the parties had to make their final submissions on 15 May 1997. On that date the court adjourned the case to 30 October 1997 and reserved judgment, which, by law, could not be delivered before the expiry of a period of eighty days. On 21 January 1998 the Perugia Court of Appeal declared the Katowice District Court decision enforceable in Italy. On 30 March 1999 the Ministry of the Interior invited the debtor to comply with his obligations. On 2 April 1999 the decision of the Perugia Court of Appeal became final. 16. On 2 May 2000 the Italian Ministry of the Interior asked the Polish authorities for an updated calculation of the debt, which the Polish authorities furnished on 27 September 2000. 17. On 27 November 2000 the Prefecture of Terni informed the Ministry that on 6 July 1999 and 23 October 2000 it had formally invited the debtor to pay the amounts due. As he did not do so, Perugia District State Counsel was asked on 18 December 2000 to start enforcement proceedings. The first attempt at enforcement was unsuccessful, as Mr P. had no possessions. On 20 December 2002 a new set of enforcement proceedings – started on 10 July 2002 – led to the seizure of property and a priority notice being entered in the land register. According to information submitted by the Government, Mr P.’s lawyer made an informal request to be allowed to pay the arrears in instalments, but did not file a formal request with the courts. 18. The Convention on the Recovery Abroad of Maintenance was adopted and opened for signature on 20 June 1956 by the United Nations Conference on Maintenance Obligations. This conference had been convened by the Economic and Social Council of the United Nations (see United Nations, Treaty Series, 1957, pp. 4-11 and 32-47). The convention came into force on 25 May 1957. Italy and Poland ratified it on 28 July 1958 and 21 March 1968 respectively. The relevant provisions of the convention read as follows: “1. The purpose of [the] Convention is to facilitate the recovery of maintenance to which a person, hereinafter referred to as claimant, who is in the territory of one of the Contracting Parties, claims to be entitled from another person, hereinafter referred to as the respondent, who is subject to the jurisdiction of another Contracting Party. This purpose shall be effected through the offices of agencies, which will hereinafter be referred to as Transmitting and Receiving Agencies. 2. The remedies provided for in this Convention are in addition to, and not in substitution for, any remedies available under municipal or international law.” “1. Each Contracting Party shall, at the time when the instrument of ratification or accession is deposited, designate one or more judicial or administrative authorities, which shall act in its territory as Transmitting Agencies. 2. Each Contracting Party shall, at the time when the instrument of ratification or accession is deposited, designate a public or private body, which shall act in its territory as Receiving Agency.” “Where a claimant is on the territory of one Contracting Party, hereinafter referred to as the State of the claimant, and the respondent is subject to the jurisdiction of another Contracting Party, hereinafter referred to as the State of the respondent, the claimant may make application to a Transmitting Agency in the State of the claimant for the recovery of maintenance from the respondent.” “The Transmitting Agency shall transmit the documents to the Receiving Agency of the State of the respondent, unless satisfied that the application is not made in good faith.” “The Transmitting Agency shall, at the request of the claimant, transmit, under the provision of Article 4, any order, final or provisional, and any other judicial act, obtained by the claimant for the payment of maintenance in the competent tribunal of any Contracting Party, and, where necessary and possible, the record of the proceedings in which such order was made.” “1. The Receiving Agency shall, subject always to the authority given by the claimant, take on behalf of the claimant, all appropriate steps for the recovery of maintenance, including the settlement of the claim and, where necessary, the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance. 2. The Receiving Agency shall keep the Transmitting Agency currently informed. If it is unable to act, it shall inform the Transmitting Agency of its reason and return the documents. 3. Notwithstanding anything in this Convention, the law applicable in the determination of the questions arising in such action or proceedings shall be the law of the State of the respondent, including its private international law.” 19. Section 64 of Law no. 218 of 1995 indicates the cases in which a judgment delivered by a foreign court will be recognised in Italy without recourse to a specific procedure. Section 67 contains provisions on the execution of judgments and decisions following the voluntary assumption of jurisdiction and in cases of refusal to comply. 20. This Act, which came into force on 18 April 2001, completes Article 111 of the Italian Constitution, which provides that the right to have proceedings conducted within a reasonable time shall be guaranteed by legislation. The new Act enables a claim for compensation to be made in the Court of Appeal, which will apply the case-law of the European Court of Human Rights, by anyone who has sustained pecuniary or non-pecuniary damage as a result of the inordinate length of proceedings. “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 sitting 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 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 before the relevant chamber 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 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 respect of which a 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 grant an application, its decision shall be communicated by the registry to the parties, to State Counsel at the Audit Court 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 concerned by the proceedings.” “1. Within six months [extended to twelve by Law no. 432 of 2001] after the entry into force of this Act, anyone who has lodged an application with the 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.”