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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> FRANCESCO LOMBARDO v. ITALY - 11519/85 [1992] ECHR 72 (26 November 1992)
URL: http://www.bailii.org/eu/cases/ECHR/1992/72.html
Cite as: [1992] ECHR 72
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In the case of Francesco Lombardo v. Italy*,
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention")** and the relevant provisions of the Rules of Court,
as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr B. Walsh,
Mr C. Russo,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr F. Bigi,
Sir John Freeland,
Mr L. Wildhaber,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 25 June and
29 October 1992,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 76/1991/328/401. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on
13 September 1991, within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 11519/85)
against the Italian Republic lodged with the Commission under
Article 25 (art. 25) by Mr Francesco Lombardo, an Italian
national, on 3 October 1984.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Italy
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision
as to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Article 6 para. 1
(art. 6-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated
that he did not wish to take part in the proceedings.
3. The Chamber to be constituted included ex officio
Mr C. Russo, the elected judge of Italian nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal,
the President of the Court (Rule 21 para. 3 (b)). On
28 September 1991, in the presence of the Registrar,
Mr J. Cremona, the Vice-President of the Court, drew by lot the
names of the other seven members, namely Mr F. Gölcüklü,
Mr B. Walsh, Mr N. Valticos, Mr R. Pekkanen, Mr A.N. Loizou,
Mr F. Bigi and Mr L. Wildhaber (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43). Sir John Freeland,
substitute judge, subsequently replaced Mr Valticos, who was
unable to take part in the further consideration of the case
(Rules 22 para. 1 and 24 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Italian Government ("the Government") and the Delegate of
the Commission on the organisation of the procedure (Rule 37
para. 1 and Rule 38). Pursuant to the order made in consequence,
the Registrar received the Government's memorial on
12 March 1992. In a letter received on 16 April the Secretary
to the Commission informed him that the Delegate would submit his
observations at the hearing.
5. Also on 16 April the Commission produced the file on the
proceedings before it, as requested by the Registrar on the
President's instructions.
6. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 22 June 1992. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr G. Raimondi, magistrato, seconded to the
Diplomatic Legal Service of the Ministry of
Foreign Affairs, Co-Agent;
(b) for the Commission
Mr J.A. Frowein, Delegate.
The Court heard statements and addresses by them.
The Government's replies to the Court's questions were
received on 20 July.
AS TO THE FACTS
7. Mr Francesco Lombardo resides in Rome. The facts
established by the Commission pursuant to Article 31 para. 1
(art. 32-1) of the Convention are as follows (see
paragraphs 15-30 of its report):
"A. The circumstances of the case
15. The applicant served in the Carabinieri from
15 August 1946 to 14 March 1974, on which date he was
invalided out of the service because he had become
disabled as a result of two illnesses - an ulcer and
neoplasia.
16. Since 29 January 1975 the applicant has been in
receipt of an ordinary retirement pension.
17. On 10 June 1974 he applied for an 'enhanced
ordinary pension' on the ground that the illnesses which
had caused his disablement were 'due to his service'. On
19 October 1976 the applicant was examined at the Messina
military hospital by the Ministry of Defence medico-legal
board. On 26 November 1976 the board concluded that the
neoplasia which had caused the applicant's disablement
was not 'due to his service'.
18. On 21 May 1977, in its decision on the
applicant's request, the Ministry of Defence granted him
payment at the enhanced rate for two years, on the ground
that the ulcer he suffered from was 'due to his service',
but rejected that part of his application concerning the
neoplasia.
19. In a registered letter dated 20 December 1977 the
applicant appealed to the Court of Audit against this
decision. The appeal was received by the Court of Audit
on 22 December 1977 and reached the competent division of
that court on 3 January 1978, being registered under file
no. 0110931.
20. On 7 September 1978 the applicant asked for his
appeal to be given priority, by derogation from the
chronological order principle usually applied. Following
this request, on 13 September 1978, the registry of the
Court of Audit asked the Ministry of Defence for the
applicant's administrative file; on 23 September 1978 it
again asked for this file to be forwarded.
21. In a note of 20 October 1978 the Ministry of
Defence announced that it was shortly to adopt an
administrative measure concerning the applicant [- an
adjustment of his pension -] and that the file would be
transmitted thereafter.
22. The file was received by the registry of the
Court of Audit on 4 December 1980. On 13 January 1981
the applicant's appeal and his file were transmitted to
the principal public prosecutor, who [granting
Mr Lombardo's application of 23 February 1982]
on 8 January 1983 decided to give the case priority.
23. On 17 September 1985 the principal public
prosecutor requested the opinion of the Ministry of
Defence medico-legal board. He received this opinion on
7 April 1986. It confirmed that the applicant's
neoplasia was not 'due to his service'.
24. On the basis of this opinion, on 6 June 1987, the
principal public prosecutor submitted his pleadings,
calling for the appeal to be dismissed.
25. On 28 October 1987 the applicant again asked for
his case to be given priority.
26. On 30 November 1987 the president of the division
of the Court of Audit dealing with the case arranged for
a hearing to be held before that division on
27 April 1988. However, the hearing did not take place
because, following a judgment of the Constitutional Court
(no. 270 of 25 February 1988), the Judicial Division of
the Palermo Court of Audit gained jurisdiction to hear
the case, which was transferred to it on 25 May 1988.
27. This division heard the case at a hearing held on
15 February 1989, at the end of which it upheld the
applicant's appeal. The text of the judgment was
deposited with the registry on 7 July 1989. ...
B. The relevant domestic law
28. In pursuance of the provisions of Presidential
Decree no. 1092 of 29 December 1973, state public
servants are entitled to an 'enhanced ordinary pension'
when their employment in the public service is terminated
as a result of a disability or injury attributable to the
requirements of the service.
29. Public servants make direct contributions to the
pension fund through monthly payments calculated as a
fixed percentage of their wages and deducted therefrom.
30. The nature of the disability or injury is taken
into account for the purpose of deciding which scale is
to be applied in calculating the amount of pension. For
professional members of the armed forces these scales
range from 30% to 100% of the figure used as the basis
for the calculation of pension, i.e. the full amount of
the latest remuneration received, plus certain allowances
where appropriate. Consequently, the amount of the
pension granted is not directly linked to the total
contributions paid into the pension fund by the person
concerned."
8. On 26 November 1991 the applicant informed the Court that
Italy had now paid him part of the amount in issue.
PROCEEDINGS BEFORE THE COMMISSION
9. Mr Lombardo applied to the Commission on 3 October 1984.
Relying on Article 6 para. 1 (art. 6-1) of the Convention, he
complained of the length of the civil proceedings brought by him.
10. The Commission declared the application (no. 11519/85)
admissible on 5 March 1990. In its report of 10 July 1991 (made
under Article 31) (art. 31) it expressed the opinion by thirteen
votes to six that there had been a violation of Article 6
para. 1 (art. 6-1). The full text of the Commission's opinion
and of the dissenting opinion contained in the report is
reproduced as an annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume
249-B of Series A of the Publications of the Court), but a copy
of the Commission's report is available from the registry.
_______________
GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT
11. At the hearing the Government asked the Court to hold
that there had not been a violation of the Convention in the
present case.
AS TO THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
12. The Government claimed in their memorial that Mr Lombardo
had not exhausted domestic remedies, as he had applied to the
Commission without waiting for the Court of Audit to give
judgment.
At the hearing on 22 June 1992, however, their Co-Agent
withdrew the said objection, and the Court may not examine it of
its own motion (see, inter alia, the Moreira de Azevedo v.
Portugal judgment of 23 October 1990, Series A no. 189, p. 15,
para. 60).
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
13. Mr Francesco Lombardo complained of the length of the
proceedings in the Court of Audit. He alleged that there had
been a violation of Article 6 para. 1 (art. 6-1) of the
Convention, which provides that:
"In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ..."
A. Applicability of Article 6 para. 1 (art. 6-1)
14. The Commission considered that this provision was
applicable in the present case, whereas the Government took the
opposite view.
15. In the Feldbrugge v. the Netherlands and Deumeland v.
Germany judgments of 29 May 1986 (Series A no. 99, p. 13,
para. 29, and no. 100, p. 23, para. 63) the Court found that
there existed great diversity in the legislation and case-law of
the member States of the Council of Europe as regards the
juridical nature of the entitlement to insurance benefits under
social security schemes. It accordingly concluded that there was
no common standard pointing to a uniform European notion in this
regard.
16. The Government argued that the case comprised features of
public law only. Firstly, the right claimed was not of a
personal and pecuniary nature, as the service relationship
between the State and Mr Francesco Lombardo had been of a public
law nature. Nor was it connected with a contract of employment,
as the appointment of a public servant originated in a unilateral
act on the part of the authorities which was subject to special
legislation. Moreover, the sickness insurance scheme which the
applicant was covered by had no affinities with a private
insurance scheme, since the Italian State had assumed the
responsibility of regulating its framework and overseeing its
operation.
Finally, payment of the "enhanced ordinary pension" was
similar to payment of an indemnification borne entirely by the
State; it was not linked with the payment of individual
contributions and was not a function of the level of salary or
length of service.
17. The Court is not convinced by this argument. Even though
disputes relating to the recruitment, employment and retirement
of public servants are as a general rule outside the scope of
Article 6 para. 1 (art. 6-1) (on access to the civil service, see
the Glasenapp and Kosiek v. Germany judgments of 28 August 1986,
Series A no. 104, p. 26, para. 49, and no. 105, p. 20, para. 35),
State intervention by means of a statute or delegated legislation
has not prevented the Court, in several cases, from finding the
right in issue to have a civil character (see the Feldbrugge
judgment cited above, pp. 13-14, para. 32).
Notwithstanding the public law aspects pointed out by the
Government, what is concerned here is essentially an obligation
on the State to pay a pension to a public servant in accordance
with the legislation in force. In performing this obligation the
State is not using discretionary powers and may be compared, in
this respect, with an employer who is a party to a contract of
employment governed by private law. Consequently, the right of
a carabiniere to receive an "enhanced ordinary pension" if he
fulfils the necessary conditions of injury and disability is to
be regarded as a "civil right" within the meaning of Article 6
para. 1 (art. 6-1), which is therefore applicable in the present
case.
B. Compliance with Article 6 para. 1 (art. 6-1)
18. It remains to determine whether or not a "reasonable
time" was exceeded.
The Commission considered that it had been, but the
Government did not.
19. The period to be taken into consideration began on
22 December 1977, when the applicant's appeal was received by the
Court of Audit. It ended on 7 July 1989 when that court's
judgment was filed. It thus lasted for approximately eleven and
a half years.
20. The reasonableness of the length of proceedings is to be
determined with reference to the criteria laid down in the
Court's case-law and in the light of the circumstances of the
case, which in this instance call for an overall assessment.
21. The Government pleaded the complex nature of the case and
the excessive workload of the Court of Audit.
22. On the first point, the Court acknowledges that the
question to be decided, namely whether the applicant's disability
was due to his service, was of a certain difficulty in view of
the state of medical knowledge on cancer; the medico-legal board
of the Ministry of Defence was moreover consulted on two
occasions (see paragraph 7 above, at nos. 17 and 23). However,
this circumstance does not in itself justify the length of the
proceedings.
The Court agrees with the Commission in finding that
there were several periods of delay: the registry of the Court
of Audit received Mr Francesco Lombardo's administrative file two
years after requesting it (see paragraph 7 above, at nos. 20-22);
the principal public prosecutor waited approximately seven years
and nine months before commissioning an expert report - the only
investigative measure taken - and once he was in possession of
the report he waited fourteen months before filing his
submissions (see paragraph 7 above, at nos. 23-24).
23. The excessive workload cannot be taken into
consideration. Article 6 para. 1 (art. 6-1) imposes on the
Contracting States the duty to organise their legal systems in
such a way that their courts can meet each of the requirements
of that paragraph (art. 6-1) (see, among many other authorities,
the Tusa v. Italy judgment of 27 February 1992, Series A
no. 231-D, p. 41, para. 17).
24. In these circumstances the delays which have been noted
were so substantial that the overall length of the proceedings
must be regarded as excessive.
There has therefore been a violation of Article 6
para. 1 (art. 6-1).
III. APPLICATION OF ARTICLE 50 (art. 50)
25. The applicant did not claim any just satisfaction under
Article 50 (art. 50) and this is not a matter for the Court to
examine of its own motion.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that Article 6 para. 1 (art. 6-1) is applicable in
the present case and has been violated;
2. Holds that it is not necessary to apply Article 50
(art. 50) in this instance.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
26 November 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar