EHRM, 29-03-2006, nr. 36813/97

On appeal from decisions delivered by the courts of appeal in ‘Pinto’ proceedings, the Court of Cassation, sitting as a full court (Sezioni Unite), gave four judgments (nos. 1338, 1339, 1340 and 1341) of 27 November 2003, the texts of which were deposited with the registry on 26 January 2004, quashing the appeal court's decision and remitting the case for a rehearing. It held that‘the case-law of the Strasbourg Court is binding on the Italian courts regarding the application of Law no. 89/2001’.

In its judgment no. 1340 it affirmed, inter alia, the principle that

Extracts from the plenary Court of Cassation's judgment no. 1339 deposited with the registry on 26 January 2004

This judgment of the Court of Cassation concerned an appeal by the Ministry of Justice challenging the Court of Appeal's award of non-pecuniary damages to a juristic person. The Court of Cassation referred to the decision reached in the case of Comingersoll v. Portugal[GC], no. 35382/97, ECHR 2000-IV and, after referring to the four judgments of the full court delivered on 26 January 2004, found that its own case-law was not in line with the European Court. It held that there was no legal barrier to awarding just satisfaction to ‘juristic’ persons according to the criteria of the Strasbourg Court. Accordingly, since the Court of Appeal had correctly decided the case the appeal was dismissed.

The Court of Cassation made the following observations:

It is not disputed that the applicants were deprived of their property in accordance with the law and that the expropriation pursued a legitimate aim in the public interest.

The applicants reiterated that, prior to the entry into force of section 5 bis of Law no. 359/1992, their land had already been expropriated and they had brought legal proceedings seeking compensation to which they could legitimately expect to be entitled under Law no. 2359/1865. As the law in question was applicable to expropriations that were under way and to the related proceedings, including the ones concerning them, it had had the effect of depriving them of a substantial part of the compensation to which they were entitled. The enactment of that law therefore amounted to an interference with the applicants' right to the peaceful enjoyment of their possessions that was incompatible with Article 1 of Protocol No. 1.

The Government denied that the new law had been of retrospective application. In any event, the Government submitted that the Convention did not prohibit the retrospective application of laws and that, even assuming that there had been interference by the legislature, that interference therefore fell within the margin of appreciation left to the States and was justified. With regard to a fair balance, they pointed out that the applicants' right to compensation had not been called into question, and that the provision in question had been limited to restricting the quantum of compensation payable.

The applicants complained of an interference by the legislature in the judicial process on account of the enactment and application to their case of section 5 bis of Law no. 359/1992. They complained, among other things, that they had not had a fair hearing because, when the amount of their expropriation compensation was determined, the question submitted to the national courts had been settled by the legislature and not by the judiciary.

In that connection the applicants pointed out that the provision in question had introduced criteria for calculating expropriation compensation which reduced by at least 50 % the amount to which they had been entitled under the law in force when the compensation proceedings were instituted in the Reggio di Calabria Court of Appeal and the land was expropriated.

Regarding the law applicable prior to the entry into force of the impugned provision, the applicants pointed out that Laws nos. 865/1971 and 385/1980 had been declared unconstitutional and, accordingly, had been repealed with retrospective effect. They could not therefore be regarded as applicable to the case in question. The only provision applicable prior to the entry into force of section 5 bis was section 39 of the 1865 Law, which guaranteed the applicants full compensation (see paragraphs 49–56 above).

The applicants pointed out that the impugned provision had been inspired merely by financial considerations, which could not be regarded as serving a vital public interest justifying retrospective application, and had been enacted with the sole purpose of settling pending proceedings in a manner advantageous to the respondent authorities.

Next, the applicants observed that section 5 bis had been declared constitutional by the Constitutional Court because it was a temporary measure designed to deal with a specific situation. However, the provision had been in force until 30 June 2003 and had now been incorporated into the Code of Expropriation Laws, which had been in force since that date.

In their letter requesting that the case be referred to the Grand Chamber and in their written and oral observations to the Grand Chamber the Government strongly disputed the Chamber judgment on this issue.

As a preliminary point, they denied that the new law had been of retrospective application since it was limited, after modifying the existing legal position, to making it immediately applicable to pending cases in accordance with a commonly applied principle. In any event, the Government submitted that the Convention did not prohibit the retrospective application of laws and therefore, assuming that there had been interference by the legislature, that interference fell within the margin of appreciation left to the States and was justified.

The Government then observed that at the time of occupation of the land and the expropriation order (in March 1981 and March 1983 respectively) the criteria introduced by Law no. 865/1971 and incorporated into Law no. 385/1980 were still in force, since the decision declaring the law unconstitutional was not made until 15 July 1983.

The compensation criteria declared unconstitutional were less favourable to the applicants than those introduced by section 5 bis of Law no. 359/1992. Had the context been one of succeeding laws, with the preceding law being repealed by the more recent one, it would be the provisions declared unconstitutional that applied in the present case, given that the right to compensation arose at the time of the expropriation. In that event it could therefore be argued that, in the absence of a legislative amendment to the detriment of the expropriated party, that is, in the absence of adverse effects deriving from section 5 bis of Law no. 359/1992, the new law did not amount to an interference with the applicants' rights.

However, the Government accepted that the present case did not concern legislation that had been introduced to repeal the preceding legislation or laws succeeding each other in time. They reiterated in that connection that the judgments of the Constitutional Court were of ‘retrospective’ scope: laws declared unconstitutional became ineffective and the laws previously in force were ‘revived’ (see paragraphs 49–56 above). They thus acknowledged that the judgments of the Constitutional Court had had the effect of annulling the two laws in question from the outset, and this had ‘revived’ the provision of the general expropriation law of 1865, which had immediately come back into force. The Government observed that the domestic courts could accordingly reapply the compensation criteria laid down in the 1865 Law.

Nevertheless, the Government argued that the law of which the applicants complained was part of a political process that had started in 1971 and sought to depart from the general expropriation law of 1865 in order to go beyond the outdated principles of a liberal economy. From that standpoint, the declarations of unconstitutionality had created a ‘vacuum’ since the fact that the 1865 Act had come back into force did not correspond to the political, economic and social demands guiding the legislature. From that point of view, section 5 bis of Law no. 359/1992 had therefore remedied a loophole.

The Government observed that section 5 bis of Law no. 359/1992 had almost certainly been inspired by budgetary considerations and responded to the need to control public finances. The Court could not criticise such considerations.

Lastly, the Government contended that section 5 bis of Law no. 359/1992 had not been enacted in order to influence the determination of the proceedings instituted by the applicants.

They concluded that the application of the impugned provision to the applicants' case did not raise an issue under the Convention. In support of their submissions, the Government referred specifically to the judgments of Forrer-Niedenthal v. Germany (no. 47316/99, 20 February 2003); OGIS-Institut Stanislas, OGEC Saint-Pie X and Blanche de Castille and Others v. France (nos. 42219/98 and 54563/00, 27 May 2004); and Bäck v. Finland, (no. 37598/97, ECHR 2004-VIII).

The Government submitted that the applicants had not exhausted domestic remedies because they had not appealed to the Court of Cassation against the Reggio di Calabria Court of Appeal's decision.

In their submission, the Court had erred, in the admissibility decision, in holding that an appeal to the Court of Cassation was not a remedy that had to be exhausted. The Court of Cassation could, they maintained, have examined the applicants' complaint about the inadequacy of the compensation awarded by the Court of Appeal under the Pinto Act as compared with the amount that they could have obtained in accordance with the Court's case-law on Article 41 of the Convention.

In support of that submission the Government referred to the four judgments delivered by the Court of Cassation, sitting as a full court, on 26 January 2004, nos. 1338, 1339, 1340 and 1341 (see paragraphs 63–64 above).

The applicants challenged the Government's objection and submitted that the Grand Chamber should confirm the admissibility decision of 27 March 2003 and the judgment of 29 July 2004 in which the Chamber had dismissed the objection.

They went on to observe that the departure from precedent by the Court of Cassation, on the basis of which the Government reiterated their objection, had not occurred until after the admissibility decision, and after the decision of the Court of Appeal in this case had become final.

According to the respondent Government, the applicants were no longer ‘victims’ of the alleged violation because they had obtained from the Court of Appeal a decision finding that the ‘reasonable time’ had been exceeded and compensation.

Regarding the amount obtained under the Pinto Act, the sum could not be called into question by the Court because the domestic court had made its decision on an equitable basis and in accordance with the margin of appreciation available to it regarding just satisfaction. The assessment of the level of compensation thus fell outside the Court's competence in accordance with the subsidiarity principle and the margin of appreciation left to the States.

In that connection the Government considered that the acknowledgement of the existence of damage and the determination of quantum were part of the assessment of evidence which fell within the jurisdiction of the domestic courts and was in theory outside the competence of the supranational court. Although the Court did admittedly have the power to review decisions submitted to it with a view to ensuring that the reasoning was neither manifestly unreasonable nor arbitrary and was consonant with logic and the lessons derived from experience actually encountered in the social context, it could not, however, impose its own criteria or substitute its own beliefs for those of the domestic courts in assessing the evidence.

Furthermore, the Government pointed out that the Court had to strike a fair balance between the requirement of clarity and respect for principles such as the States' margin of appreciation and the subsidiarity principle. The attempt to strike that balance had to be governed by the general rule that any factor to be taken into account which was stated loosely or vaguely in the Strasbourg case-law had to be considered with the greatest respect for the corresponding margin of appreciation to be enjoyed by each State without fear of being subsequently disavowed by the Court.

The Government then felt it important to explain the criteria used in Italian law relating to non-pecuniary damage.

Under the Pinto Act, only the years beyond an average period that could be regarded as ‘reasonable’ had to be taken into account when assessing the damage. Furthermore, the existence of non-pecuniary damage did not implicitly flow from the finding of a violation. On the contrary, non-pecuniary damage had to be determined and proved in accordance with the relevant provisions of the Civil Code. The Court of Cassation had asserted, though, that non-pecuniary damage was a normal consequence of a breach of the reasonable-time requirement that from then on did not have to be proved by the applicant. According to the Court of Cassation, it was up to the State to provide proof that in a particular case an inordinately long wait for a judgment had not occasioned the applicant any anxiety or distress but, on the contrary, had been advantageous or that the applicant had been aware of having instituted or contested proceedings on the basis of erroneous arguments (Court of Cassation 29.3–11.5.2004 no. 8896), for example where the applicant had been well aware from the outset that he or she had no chance of winning.

The Government observed lastly that, under Article 41 of the Convention, the Court awarded just satisfaction if such was appropriate, and sometimes held that a finding of a violation sufficed. That possibility should also be available to the States, which should also be able to vary the amounts they awarded to the point of awarding nothing in some cases.

The Government then asked the Court to clarify the various aspects of the reasoning that led to its decisions, both in respect of the parts relating to a violation and those regarding just satisfaction. They submitted that the Court should follow the approach used by the domestic courts and explain in each case how many years had to be regarded as ‘natural’ for each stage of proceedings, how many might be acceptable having regard to the complexity of the case, how many delays were attributable to each party, the importance of the stakes in the proceedings, the outcome of the proceedings and how the just satisfaction to be awarded was calculated on the basis of those factors.

At the hearing the Government indicated, lastly, that as far as the procedural costs were concerned the applicants had obtained only partial reimbursement from the courts because one of the parties against which the proceedings had been instituted could not be considered as a party to the proceedings.

For all the foregoing reasons, the Government argued that the applicants should no longer be regarded as ‘victims’ of a violation due to the excessive length of the proceedings.

The applicants submitted that they were still ‘victims’ of the violation alleged because the amount awarded them by the Court of Appeal was derisory and bore no relation whatsoever to the levels of compensation awarded by the Court.

Relying on Holzinger v. Austria (no. 1) (no. 23459/94, §21, ECHR 2001-I), the applicants submitted that the Court had power to assess the amount of the compensation received at domestic level in order to determine whether they had victim status. In so doing, it could compare that amount with the amount it would itself have awarded in just satisfaction.

The applicants disputed the contention that once a finding of a breach of the ‘reasonable-time’ principle had been made, it was possible not to award any compensation. In their submission, where the courts found that the proceedings had been excessive in length, it meant that the interested parties had had ‘time stolen’ from them. As that time could not be given back, it was necessary to award pecuniary compensation. Failing that, the violation persisted. In that connection the applicants referred to ‘minimum damage’ implicitly flowing from a finding of a violation and which would be the same for everyone. To that minimum amount should be added sums that took account of other factors, such as the stakes involved for the person, to be evaluated on a case-by-case basis.

Given that the remedy introduced by the Pinto Act was only compensatory, and in the absence of any remedy capable of preventing the breach, the applicants maintained that the compensation — in order to be deemed capable of making good the alleged loss — had to be of a sufficient level, that is, bear a reasonable relation to the amounts awarded by the Court.

Moreover, the applicants pointed out that the amounts awarded by the domestic courts in defamation or personal injury cases were significantly higher than the amounts awarded by the Court under the head of non-pecuniary damage in length-of-proceedings cases.

In conclusion, a comparison between the compensation received at national level and the amounts awarded by the Court in just satisfaction was not only possible but necessary.

The applicants observed that the amount awarded them in compensation under the Pinto Act was EUR 2,450. According to the Chamber, that amount corresponded to about 10 % of the amount that the Court would have awarded in a similar case. Furthermore, the legal costs payable by them came to EUR 1,500, plus 20 % VAT (value-added tax) and 2% CPA (contribution to the lawyers' insurance fund), that is, EUR 1,834. Accordingly, the compensation actually awarded, after deduction of legal costs, came to EUR 614, that is, EUR 153.50 each.

In the Czech Government's submission, the Court should confine itself to ensuring that the consequences of the case-law policy choices made by the domestic courts were in keeping with the Convention. Its review should be more or less rigorous, depending on the margin of appreciation that the Court allowed national authorities. The Court should only ensure that, in accordance with Article 13 of the Convention, the national authorities complied with the principles established in its case-law or applied the provisions of their own domestic law in such a way that applicants enjoyed a level of protection in respect of their rights and freedoms as guaranteed by the Convention that was greater than or equivalent to that which they would enjoy if the national authorities applied the Convention's provisions directly. The Court should not go any further except in cases where the results arrived at by the national authorities appeared, on the face of it, arbitrary.

The Czech Government acknowledged that the adequacy of the amount awarded at domestic level was one of the criteria of effectiveness of an application for compensation within the meaning of Article 13. However, in view of the wide margin of appreciation that should be available to the Contracting Parties in implementing Article 13, they considered that the Court should subsequently exercise only ‘limited control’, thus restricted to satisfying itself that the national authorities had not made a ‘manifest error in assessment’ of the non-pecuniary damage caused by the excessive length of judicial proceedings.

Moreover, as the Czech Government wanted to provide their country with a compensatory remedy in addition to the existing preventive domestic remedy, they asked the Court to provide as many guidelines as possible in that connection so that they could set in place a remedy which would incontestably be effective.

In the Polish Government's submission, an assessment of the facts of the case with a view to determining whether the ‘reasonable time’ had been exceeded was part of the examination of the evidence conducted by the domestic courts. It was therefore debatable to what extent a supranational body could intervene in this process. It was, rather, commonly accepted that in most cases the facts would have been established by the domestic courts and that the Court's task would be limited to examining whether the Convention had been complied with. The Court's case-law appeared to be confined to assessing whether the domestic courts' decisions, given in accordance with domestic procedure previously approved by the Court, had properly applied the general rules to the specific case. In the absence of precise indicators on which to assess the facts and calculate the amount of compensation, there were no grounds on which to dispute the decisions of the domestic courts. Regard should be had in this connection to the discretion available to the domestic courts in assessing the facts and the evidence.

Furthermore, in the very particular circumstances of some cases the mere finding of a violation sufficed to meet the requirement of an effective remedy and amounted to adequate redress. That rule had been clearly established in the Court's case-law on other Articles of the Convention. In some cases, moreover, the excessive length of the proceedings could be favourable to the parties and compensating them would therefore be extremely questionable.

In the Slovak Government's submission, the Court should adopt the same approach as in assessing the fairness of proceedings, a matter in respect of which it considered that its task was not to deal with the factual or legal mistakes allegedly made by the domestic courts unless such mistakes could have resulted in a breach of the rights and freedoms guaranteed by the Convention. Moreover, although Article 6 of the Convention guaranteed the right to a fair trial it did not lay down any rules on the admissibility of evidence or its assessment, which was therefore primarily a matter for regulation under national law by the domestic courts. Accordingly, when examining decisions of domestic courts on the amount of damages awarded for non-pecuniary damage arising from delays in proceedings, the Court should leave enough room for the courts’ discretion in this respect since the domestic courts decided on delays in the proceedings on the basis of the same criteria as the Court — and were in a better position to analyse the causes and consequences and thus to determine the non-pecuniary damage on an equitable basis.

The Slovak Government pointed out that the decisions of the Slovak Constitutional Court concerning delays in proceedings were much more detailed than the Court's decisions. In their submission, the Court should examine the decisions of the domestic courts relating to the amounts awarded for non-pecuniary damage only with regard to whether these decisions were manifestly arbitrary and unfair and not whether the amounts awarded by the Court in similar circumstances were substantially higher. Moreover, the Slovak Government found it logical that the amounts awarded by the domestic courts for protractedness of proceedings were less than the amounts awarded by the Court because injured persons could obtain effective and rapid compensation in their own country without having to bring their case to the international court.

The Court will begin by responding to the observations of the different Governments regarding the lack of precision in its judgments both in respect of the reasons leading to a finding of a violation and awards in respect of non-pecuniary damage.

It feels it important to point out that the reason why it has been led to rule on so many length-of-proceedings cases is because certain Contracting Parties have for years failed to comply with the ‘reasonable-time’ requirement under Article 6 § 1 and have not provided for a domestic remedy for this type of complaint.

The situation has worsened on account of the large number of cases coming from certain countries, of which Italy is one. The Court has already had occasion to stress the serious difficulties it has had as a result of Italy's inability to resolve the situation. It has expressed itself on the subject in the following terms:

(see Bottazzi v. Italy[GC], no. 34884/97, § 22, ECHR 1999-V; Ferrari v. Italy[GC], no. 33440/96, § 21, 28 July 1999; A.P. v. Italy, no. 35265/97, § 18, 28 July 1999; and Di Mauro v. Italy[GC], no. 34256/96, § 23, ECHR 1999-V).

Thus the Court, like the Commission, after years of examining the reasons for the delays attributable to the parties under the Italian procedural rules, has had to resolve to standardize its judgments and decisions. This has allowed it to adopt more than 1,000 judgments against Italy since 1999 in civil length-of-proceedings cases. That approach has made it necessary to establish scales on equitable principles for awards in respect of non-pecuniary damage under Article 41, in order to arrive at equivalent results in similar cases.

All this has led the Court to award higher levels of compensation than those awarded by the Convention institutions prior to 1999 and ones which may differ from those applied in the event of a finding of other violations. This increase, far from being a punitive measure, was intended to fulfil two purposes. On the one hand it served to encourage States to find their own, universally accessible, solution to the problem and on the other hand it allowed applicants to avoid being penalised for the lack of domestic remedies.

The Court also considers it important to point out that, contrary to the Government's assertion, the Chamber has not in any way departed from its constant practice either regarding the assessment of the delays or regarding just satisfaction. Concerning the question of exceeding a reasonable time, it reiterates that regard must be had to the circumstances of the case and the criteria laid down in the Court's case-law, in particular the complexity of the case, the applicant's conduct and that of the competent authorities, and the importance of what was at stake for the applicant in the dispute (see, among many other authorities, Comingersoll, cited above, § 19). Furthermore, a closer analysis of the many judgments which post-date Bottazzi will enable the Government to see that there is a clear pattern in the amounts awarded in its judgments, since the amounts differ only in respect of the particular facts of each case.

With regard to the observations concerning the subsidiarity principle, also made by the third parties, the Court notes that under Article 34 of the Convention it ‘may receive applications from any person … claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. …’

The Court reiterates that it falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see Burdov v. Russia, no. 59498/00, § 30, ECHR 2002-III).

The Court also reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a ‘victim’ unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, p. 32, §§ 69 et seq.; Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36; Dalban v. Romania[GC], no. 28114/95, § 44, ECHR 1999-VI; and Jensen v. Denmark (dec.), no. 48470/99, 20 September 2001, ECHR 2001-X).

The issue as to 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. As it has already held in other length-of-proceedings cases, the question whether he or she has received reparation for the 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 (see Holzinger v. Austria (no. 1), no. 23459/94, § 21, ECHR 2001-I).

In so far as the parties appear to link the issue of victim status to the more general question of effectiveness of the remedy and seek guidelines on affording the most effective domestic remedies possible, the Court proposes to address the question in a wider context by giving certain indications as to the characteristics which such a domestic remedy should have, having regard to the fact that, in this type of case, the applicant's ability to claim to be a victim will depend on the redress which the domestic remedy will have given him or her.

The best solution in absolute terms is indisputably, as in many spheres, prevention. The Court recalls that it has stated on many occasions that Article 6 § 1 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time (see, among many other authorities, Süßmann v. Germany, judgment of 16 September 1996, Reports 1996-IV, p. 1174, § 55, and Bottazzi, cited above, § 22). Where the judicial system is deficient in this respect, a remedy designed to expedite the proceedings in order to prevent them from becoming excessively lengthy is the most effective solution. Such a remedy offers an undeniable advantage over a remedy affording only compensation since it also prevents a finding of successive violations in respect of the same set of proceedings and does not merely repair the breach a posteriori, as does a compensatory remedy of the type provided for under Italian law for example.

The Court has on many occasions acknowledged that this type of remedy is ‘effective’ in so far as it hastens the decision by the court concerned (see, among other authorities, Bacchini v. Switzerland (dec.), no. 62915/00, 21 June 2005; Kunz v. Switzerland (dec.), no. 623/02, 21 June 2005; Fehr and Lauterburg v. Switzerland (dec.), no. 708/02 and 1095/02, 21 June 2005; Holzinger (no. 1), cited above, § 22; Gonzalez Marin v. Spain (dec.), no. 39521/98, ECHR 1999-VII; and Tomé Mota v. Portugal (dec.), no. 32082/96, ECHR 1999-IX).

It is also clear that for countries where length-of-proceedings violations already exist, a remedy designed to expedite the proceedings — although desirable for the future — may not be adequate to redress a situation in which the proceedings have clearly already been excessively long.

Different types of remedy may redress the violation appropriately. The Court has already affirmed this in respect of criminal proceedings, where it was satisfied that the length of proceedings had been taken into account when reducing the sentence in an express and measurable manner (see Beck v. Norway, no. 26390/95, § 27, 26 June 2001).

Moreover, some States, such as Austria, Croatia, Spain, Poland and the Slovak Republic, have understood the situation perfectly by choosing to combine two types of remedy, one designed to expedite the proceedings and the other to afford compensation (see, for example, Holzinger (no. 1), cited above, § 22; Slavicek v. Croatia (dec.), no. 20862/02, ECHR 2002-VII; Fernandez-Molina Gonzalez and Others v. Spain (dec.), no. 64359/01, ECHR 2002-IX; Michalak v. Poland (dec.), no. 24549/03, 1 March 2005; Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60226/00, 60237/00, 60242/00, 60679/00, 60680/00 and 68563/01, ECHR 2002-IX).

However, States can also choose to introduce only a compensatory remedy, as Italy has done, without that remedy being regarded as ineffective (see Mifsud, cited above).

The Court has already had occasion to reiterate in the Kudla v. Poland judgment (cited above, §§154–55) that, subject to compliance with the requirements of the Convention, the Contracting States are afforded some discretion as to the manner in which they provide individuals with the relief required by Article 13 and conform to their Convention obligation under that provision. It has also stressed the importance of the rules relating to the subsidiarity principle so that individuals are not systematically forced to refer to the Court in Strasbourg complaints that could otherwise, and in the Court's opinion more appropriately, have been addressed in the first place within the national legal system.

Accordingly, where the legislature or the domestic courts have agreed to play their true role by introducing a domestic remedy the Court will clearly have to draw certain conclusions from this.

Where a State has made a significant move by introducing a compensatory remedy, the Court must leave a wider margin of appreciation to the State to allow it to organise the remedy in a manner consistent with its own legal system and traditions and consonant with the standard of living in the country concerned. It will, in particular, be easier for the domestic courts to refer to the amounts awarded at domestic level for other types of damage — personal injury, damage relating to a relative's death or damage in defamation cases for example — and rely on their innermost conviction, even if that results in awards of amounts that are lower than those fixed by the Court in similar cases.

In accordance with its case-law on the interpretation and application of domestic law, while the Court's duty, under Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Jahn and Others v. Germany, cited above, § 86).

The Court is therefore required to verify whether the way in which the domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention, as interpreted in the light of the Court's case-law. This is especially true where, as the Italian Court of Cassation has quite rightly observed, the domestic law refers explicitly to the provisions of the Convention. This supervisory role should be easier in respect of States that have effectively incorporated the Convention into their legal system and consider the rules to be directly applicable since the highest courts of these States will normally assume responsibility for enforcing the principles determined by the Court.

Accordingly, a clear error in assessment on the part of the domestic courts may also arise as a result of a misapplication or misinterpretation of the Court's case-law.

The principle of subsidiarity does not mean renouncing all supervision of the result obtained from using domestic remedies, otherwise the rights guaranteed by Article 6 would be devoid of any substance. In that connection it should be reiterated that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective (see Prince Hans-Adam II of Liechtenstein v. Germany[GC], no. 42527/98, § 45, ECHR 2001-VIII). This is particularly true for the guarantees enshrined in Article 6, in view of the prominent place held in a democratic society by the right to a fair trial with all the guarantees under Article 6 (see, mutatis mutandis, Prince Hans-Adam II of Liechtenstein, cited above, § 45).

It follows from the foregoing principles that the Court is required to verify that there has been an acknowledgement, at least in substance, by the authorities of a violation of a right protected by the Convention and whether the redress can be considered as appropriate and sufficient (see, inter alia, Normann v. Denmark (dec.), no. 44704/98, 14 June 2001; Jensen v. Denmark (dec.), no. 48470/99, 20 March 2003; and Nardone v. Italy, no. 34368/98, 25 November 2004).

In its judgment (see paragraphs 111–12), the Chamber held:

The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000-XI).

The Contracting States that are parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach. This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1). If the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it, the Court having neither the power nor the practical possibility of doing so itself. If, on the other hand, national law does not allow — or allows only partial — reparation to be made for the consequences of the breach, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Brumãrescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I).

The Court has held that the interference in question satisfied the condition of lawfulness and was not arbitrary (see paragraphs 79–80). The act of the Italian Government which the Court held to be contrary to the Convention was an expropriation that would have been legitimate but for the failure to pay fair compensation (see paragraphs 99–104). Furthermore, the Court has found that the retrospective application of section 5bis of Law no. 359/1992 deprived the applicants of the possibility afforded by section 39 of Law no. 2359/1865, applicable to the present case, of obtaining compensation to the market value of the property (see paragraphs 127–33 above).

In the present case the Court considers that the nature of the violations found does not allow it to assume that restitutio in integrum can be made (see, a contrario, Papamichalopoulos and Others v. Greece (former Article 50), cited above). An award of equivalent compensation must therefore be made.

The lawfulness of such a dispossession inevitably affects the criteria to be used for determining the reparation owed by the respondent State, since the pecuniary consequences of a lawful expropriation cannot be assimilated to those of an unlawful dispossession (see Former King of Greece and Others v. Greece[GC] (just satisfaction), no. 25701/94, § 75, ECHR 2002).

The Court adopted a very similar position in the case of Papamichalopoulos and Others v. Greece (former Article 50), cited above, p. 59, §§ 36 and 39). It found a violation in that case on account of a de facto unlawful expropriation (occupation of land by the Greek Navy since 1967) which had lasted for more than twenty-five years on the date of the principal judgment delivered on 24 June 1993. The Court accordingly ordered the Greek State to pay the applicants, for damage and loss of enjoyment since the authorities had taken possession of the land, an amount corresponding to the current value of the land, increased by the appreciation brought about by the existence of buildings which had been erected since the land had been occupied.

The Court followed that approach in two Italian cases concerning expropriations that did not comply with the principle of lawfulness. In the first of those cases, Belvedere Alberghiera S.r.l. v. Italy (just satisfaction), no. 31524/96, §§ 34–36, 30 October 2003), it held:

In the second of those cases (Carbonara and Ventura v. Italy (just satisfaction), no. 24638/94, §§ 40–41, 11 December 2003), the Court declared:

An analysis of the three above-mentioned cases, which all concern cases of inherently unlawful dispossession, shows that, in order to fully compensate the loss incurred, the Court has awarded amounts taking account of the current value of land in the light of today's property market. It has also sought to compensate financial loss by taking account of the potential of the land in question, calculated, if applicable, on the basis of the construction costs of buildings put up by the expropriating authority.

Contrary to the amount awarded in the cases referred to above, the compensation to be determined in the present case will not have to reflect the idea of a total elimination of the consequences of the impugned interference. Indeed, in the present case it is the lack of adequate compensation and not the inherent unlawfulness of the taking of the land that was at the origin of the violation found under Article 1 of Protocol No. 1.

In determining the amount of adequate compensation, which does not necessarily have to reflect the full value of the property, the Court must base itself on the criteria laid down in its judgments regarding Article 1 of Protocol No. 1 and according to which, without payment of an amount reasonably related to its value, a deprivation of property would normally constitute a disproportionate interference which could not be considered justifiable under Article 1 of Protocol No. 1 (see James and Others v. the United Kingdom, cited above, p. 36, § 54). The Court reiterates that in many cases of lawful expropriation, such as a distinct expropriation of land with a view to building a road or for other purposes ‘in the public interest’, only full compensation can be regarded as reasonably related to the value of the property (see The Former King of Greece and Others (just satisfaction), cited above, § 36). However, legitimate objectives of ‘public interest’, such as those pursued by measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value (ibid.).

In the instant case the Court has found that a ‘fair balance’ was not struck, given the level of compensation well below the market value of the land and given the lack of ‘public-interest’ grounds justifying a departure from the rule set forth in paragraph 95 above, according to which, in the absence of such grounds, and in the event of a ‘distinct expropriation’, adequate compensation has to correspond to the value of the property (see paragraphs 99–104 above).

It follows that adequate expropriation compensation in the present case should have corresponded to the market value of the property. Consequently, the Court will award compensation corresponding to the difference between the value of the land and the compensation obtained by the applicants at national level.

Like the Chamber, the Grand Chamber considers it appropriate to base itself on the value of the property at the time of the expropriation, as stated in the court-ordered expert reports drawn up during the domestic proceedings (165,755 Italian lire (ITL) per square metre in 1983, see paragraphs 32 and 37 above) and on which the applicants based their claims (see paragraphs 243–44 above). As the adequacy of the compensation would be diminished if it were to be paid without reference to various circumstances liable to reduce its value, such as the lapse of a considerable period of time (see Stran Greek Refineries and Stratis Andreadis v. Greece, cited above, p. 90, § 82, and, mutatis mutandis, Motais de Narbonne v. France (just satisfaction), no. 48161/99, §§ 20–21, 27 May 2003), once the amount obtained at domestic level is deducted, and the difference with the market value of the land in 1983 thus obtained, that amount will have to be converted to current value to offset the effects of inflation. Moreover, interest will have to be paid on this amount so as to offset, at least in part, the long period for which the applicants have been deprived of the land. In the Court's opinion the interest should take the form of simple statutory interest applied to the capital progressively adjusted. With regard, lastly, to the 20 % tax deducted from the expropriation compensation awarded at domestic level, the Grand Chamber, like the Chamber, has not found the application of that tax to be unlawful as such but has taken account of that factor in assessing the facts (see paragraph 101 above).

Having regard to those factors, and ruling on an equitable basis, the Court considers it reasonable to award the applicants EUR 580,000, plus any tax that may be chargeable on that amount.

In its judgment, the Chamber held that, on this point, the question of the application of Article 41 was not ready for decision and reserved it (see paragraph 115 of the Chamber judgment).

In reply to the Governments, the Court states at the outset that by ‘similar cases’ it means any two sets of proceedings that have lasted for the same number of years, for an identical number of levels of jurisdiction, with stakes of equivalent importance, much the same conduct on the part of the applicant and in respect of the same country.

Moreover, it shares the Slovak Government's view that it would be impossible and impracticable to try to provide a list of detailed explanations covering every eventuality and considers that all the necessary elements can be found in its previous decisions available in the Court's case-law database.

It indicates next that the amount it will award under the head of non-pecuniary damage under Article 41 may be less than that indicated in its case-law where the applicant has already obtained a finding of a violation at domestic level and compensation by using a domestic remedy. Apart from the fact that the existence of a domestic remedy is fully in keeping with the subsidiarity principle embodied in the Convention, such a remedy is closer and more accessible than an application to the Court, is faster and is processed in the applicant's own language; it thus offers advantages that need to be taken into consideration.

The Court considers, however, that where an applicant can still claim to be a ‘victim’ after exhausting that domestic remedy he or she must be awarded the difference between the amount obtained from the court of appeal and an amount that would not have been regarded as manifestly unreasonable compared with the amount awarded by the Court if it had been awarded by the court of appeal and paid speedily.

Applicants should also be awarded an amount in respect of stages of the proceedings that may not have been taken into account by the domestic courts in the reference period where they can no longer take the case back before the court of appeal seeking application of the change of position adopted by the Court of Cassation on 26 January 2004 (see its judgment no. 1339, paragraph 64 above) or the remaining length was not in itself sufficiently long to be regarded as amounting to a second violation in respect of the same proceedings.

Lastly, the Government should be ordered to pay a further sum where the applicant has had to endure a delay while waiting for payment of the compensation due from the State so that the frustration arising from the delay in obtaining payment is offset.

Having regard to the circumstances of the present case (see paragraphs 220–21 above), the Court considers that, in the absence of domestic remedies, it would have awarded the sum of EUR 24,000. It notes that the applicants were awarded EUR 2,450 by the Court of Appeal, which is approximately 10 % of what the Court would have awarded them. In the Court's view, this factor in itself leads to a result which is manifestly unreasonable having regard to the criteria established in its case-law.

Having regard to the characteristics of the domestic remedy chosen by Italy and the fact that, notwithstanding this national remedy, the Court has found a violation, it considers, ruling on an equitable basis, that the applicants should be awarded EUR 8,400.

As no relevant allegations have been made, no amount should be added on account of any ‘further frustration’ that may have been caused by the delay in paying the amount due from the State.

Accordingly, the applicants are entitled to compensation for non-pecuniary damage in a total sum of EUR 8,400, that is, EUR 2,100 each, plus any tax that may be chargeable on that amount.

In its judgment, the Chamber held that, on this point, the question of the application of Article 41 was not ready for decision and reserved it (see § 115 of the Chamber judgment).

The Court considers that the applicants must have suffered some non-pecuniary damage as a result of the unjustified interference with their right to the peaceful enjoyment of their possessions and the unfairness of the proceedings which cannot be sufficiently compensated by the findings of a violation.

Having regard to the facts of the case, and ruling on an equitable basis, the Court awards the applicants EUR 1,000 each under this head, that is, a total of EUR 4,000, plus any tax that may be chargeable on that amount.

The Chamber reserved the question of just satisfaction on this point.

According to the Court's settled case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see, for example, Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002, and Sahin v. Germany[GC], no. 30943/96, § 105, ECHR 2003-VIII).

As the applicants' case before the domestic courts was essentially aimed at remedying the violations of the Convention alleged before the Court, these domestic legal costs may be taken into account in assessing the claim for costs. However, the Court considers the amount claimed in fees to be too high.

As regards the costs and expenses incurred in the Strasbourg proceedings, the Court has found a violation of Article 1 of Protocol No. 1 and a double violation of Article 6 § 1 of the Convention, thus agreeing with the applicants' submissions.

Whilst the Court does not doubt that the costs claimed were necessarily and actually incurred, and acknowledges the length and precision of the pleadings submitted by the applicants and the large amount of work done on their behalf, it does however find the fees claimed to be excessive. The Court therefore considers that they should be reimbursed only in part.

Having regard to the facts of the case, the Court awards the applicants EUR 50,000 in total for all the costs incurred before the domestic courts and in Strasbourg, plus any tax that may be chargeable on that amount.