Exercise of the right of preemption and agrarian redemption and claim for alleged violation of the time limit of reasonable duration of trial

It is well known that there are convictions issued against the Italian State for violation of the term of reasonable duration of judicial proceedings capable of causing damage to the party in the case, that is – in general – to the victorious party in the proceedings who has not been able to enjoy in due time the right claimed by the same, as ascertained in the various levels of judgment.

Subject of claim for compensation under L. March 24, 2001, no. 89, having as its subject matter-among other provisions-the “Provision of equitable reparation in case of violation of the reasonable term of the trial,” was also an agrarian redemption proceeding under Law 590 of 1965 that lasted-in the first two levels of proceedings alone-almost seventeen years (from November 3, 1988 to March 30, 2005).

The redeeming party, in light of the acceptance of its reasons and given the duration of the proceedings with the consequent protracted impossibility of entering into full possession of the subject property until the settlement of the proceedings, applied to the Court of Appeal of Catania requesting, among other things, compensation for the pecuniary damage suffered due to the unreasonable duration of the trial, to which it was a party, before the Court of Catania and the Court of Appeal of Caltanissetta under the regulations placed to protect the reasonable duration of trials referred to above.

The trial court, while finding the grievance of unreasonable duration of the trial to be well-founded and settling a meager amount in damages for each year of the duration of the proceedings, rejected the claim for equitable relief for the alleged pecuniary loss resulting from the loss of opportunity due to the prolonged unavailability of the property related to the unreasonable duration of the trial.

Challenging the decree issued, the redeemer appealed to the Supreme Court against the Ministry of Justice, deeming the quantification of liquidated damages for the excessive duration of the trial to be erroneous and – for what is now of interest – the rejection of the claim for compensation for pecuniary loss resulting from the prolonged unavailability of the property.

The Supreme Court, having conducted the preliminary examination of the admissibility of the appeal and examined the record, by Order No. 1793 of Jan. 23, 2009, found that the appeal brought for the non-recognition of the allowance for long unavailability of the fund lacked, in the case submitted to it, the necessary direct and immediate, as much as exclusive, causal dependence of the prospected damage on the delay attributable to the state apparatus, in fact disagreeing with the interpretation given by the appellant on the agrarian redemption claim.

Recalling the constant and well-established policy of the Supreme Court itself, in fact, it was reiterated that the property indemnity claim configured by the L. no. 89 of 2001 was peremptorily related only to those cases in which the trial – in its unreasonable duration – is the immediate and direct source of the damage received by the party to the trial itself, thus excluding from compensation all pecuniary damages related to undue resistance in litigation or to the undue submission of demand by the adversary in the litigation itself, since these are items of damage whose compensation can and must be requested, in the same judgment or in another autonomous one, by the injured party from the party that with its resistance or action caused such damage (cf. Cass. n.ri. 9909/08, 23756/07; 5213/97; 2250/07; 21020/06; 1094/05).

In our case, however, the inability to take advantage of the fund in a reasonable time, far from being a direct consequence of the unreasonable length of the process, was a consequence of the unlawful conduct engaged in by the respondent (retracted buyer), and the latter is the real – direct – cause of the prolongation of the proceedings. As a result, only against the latter (retracted)party can-according to the Supreme Court and assuming the prerequisites are met-claims be made for the damage that his undue resistance in court caused.

It is true, in fact, that the redeemer has no title whatsoever to demand from the retreatant the delivery of the fruits and/or the payment of an indemnity as compensation for the lack of enjoyment of the fund for the entire duration of the trial and so until the judgment has become irrevocable, but the Supreme Court specifies that it is equally true that, precisely because the right to property arises only as a result of the irrevocable ruling on the claim, the party injured by the undue resistance in court of the other party must be accorded a means through which to see compensation for the damage suffered in the meanwhile resulting from the loss of opportunity to use the fund.

If, in fact, the unreasonable duration of the judgment is a direct consequence of such conduct vitiated by bad faith or gross negligence, i.e., unveiledly aimed at the mere purpose of delaying the settlement of the judgment that would see it undeniably losing, it is recognized in the Code of Civil Procedure that the injured party has the right to bring an action for damages for aggravated liability under Article 96 of the Code of Civil Procedure, placing them at the expense of the party that directly and knowingly caused them.

The same consideration regarding the indemnification penalty can also be made with respect to the alienator of the fund who by his or her conduct made it necessary for the prelaintiff to sue for redemption.

For the sake of completeness, it should be pointed out that the Supreme Court has made it clear what is the distinction and what are the prerequisites for the proposition, alternatively, of a claim for equitable reparation for violation of the term of reasonable duration of the trial, pursuant to Law 89/2001, and a claim for compensation for pecuniary damage which, although indirectly conditioned by the duration of the trial, is directly consequent to the undue resistance in court of the other party which is sanctionable, pursuant to Article 96 c.p.c, if it has engaged in the aforementioned conduct only to procrastinate the settlement of the proceedings.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo