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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> GIANCARLO LOMBARDO v. ITALY - 12490/86 [1992] ECHR 73 (26 November 1992)
URL: http://www.bailii.org/eu/cases/ECHR/1992/73.html
Cite as: [1992] ECHR 73, 21 EHRR 188, (1996) 21 EHRR 188
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In the case of Giancarlo 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 85/1991/337/410. 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 December 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. 12490/86) against the Italian Republic lodged with the
Commission under Article 25 (art. 25) by Mr Giancarlo Lombardo, an
Italian national, on 29 July 1986.
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, Mrs Daria Nappi, who as sole
heir of Mr Giancarlo Lombardo had carried on the proceedings before the
Commission, stated that she did not wish to take part in those before
the Court. For reasons of convenience Mr Lombardo will continue to be
referred to in this judgment as the applicant.
Mrs Nappi subsequently consented to the disclosure of the
identity of Mr Lombardo, who had originally been referred to by the
initials "G.L.".
3. On 24 January 1992 the President of the Court decided that, in
the interests of the proper administration of justice, this case should
be considered by the Chamber constituted on 28 September 1991 to hear
the Francesco Lombardo case* (Rule 21 para. 6). It 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)). The other seven members, whose names had
been drawn by lot in the presence of the Registrar, were
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).
_______________
* Case no. 76/1991/328/401
_______________
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
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 29 May.
On 23 March Mrs Nappi had filed her claims for just
satisfaction (Article 50 of the Convention and Rule 50 in conjunction
with Rule 1 (k) of the Rules of Court) (art. 50).
5. On 6 May 1992 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 Giancarlo Lombardo, a former judge, lived in Rome until his
death. The facts established by the Commission pursuant to
Article 31 para. 1 (art. 31-1) of the Convention are as follows (see
paragraphs 23-35 of its report):
"23. As the pensions of public servants and judges are not
indexed in Italy, successive adjustments produced a situation
in which the amount of pension paid by the State to retired
judges having the same grade and with the same number of years
of service but having retired at different dates varied
considerably, in a way which the applicant considered to be
unjustified.
24. Consequently, at the same time as a number of other
retired judges, on 11 November 1980, the applicant appealed to
the Italian Court of Audit against a decree of the Ministry of
Justice rejecting his application for the amount of his
pension to be increased; he argued that the provisions of the
legislation on which the disparity of treatment was based were
unconstitutional.
25. On 18 November 1980 the secretariat of the Court of
Audit asked the Ministry of Justice to forward the applicant's
file, which was done on 5 December 1980.
26. On 31 December 1980 the file was sent to the principal
public prosecutor attached to the Court of Audit, so that he
could investigate the case and formulate his submissions.
These submissions were added to the file on 19 January 1982.
27. On 7 June 1982 the principal public prosecutor,
considering that the case raised questions of principle, asked
for it to be examined by the combined divisions of the Court
of Audit.
28. Subsequently, examination of the appeal was adjourned
pending the outcome of an appeal to the combined divisions of
the Court of Audit entered by the principal public prosecutor
on 5 July 1982 against a decision of the division having
jurisdiction over pensions, given in an analogous case.
29. These appeal proceedings proved to be lengthy. At the
first hearing, arranged to take place on 6 October 1982, a
first objection of unconstitutionality was raised. The
combined divisions of the Court of Audit held that the
objection was not manifestly ill-founded and, in decision
(ordinanza) no. 73 of the same date, referred the matter to
the Constitutional Court.
30. The Constitutional Court gave its decision in a
judgment filed on 7 March 1984.
31. The case was again submitted to the combined divisions
of the Court of Audit after a request to that effect had been
made by the avvocato dello Stato (counsel representing the
State) on 7 January 1985. A hearing was arranged for
5 June 1985. At that hearing a second objection of
unconstitutionality was raised. The Court of Audit held that
the second objection was not manifestly ill-founded and once
again referred the matter to the Constitutional Court in
decision no. 104 of the same date.
32. The file was sent to the Constitutional Court on
18 September 1985. The Constitutional Court arranged for the
objection of unconstitutionality to be examined at a hearing
on 21 April 1988. Its judgment was transmitted to the
combined divisions of the Court of Audit on 23 June 1988.
33. The case was due to be heard by the combined divisions
of the Court of Audit on 12 October 1988 but had to be
adjourned by the court until 27 October 1988, following a
strike by its staff. On that date the Court of Audit referred
the case to the relevant division. Its decision was filed
with the registry on 14 November 1988.
34. The relevant decision arranged for this case and the
numerous others pending, including the applicant's, to be
heard on 22 February 1989.
35. In a judgment dated 13 March 1989, filed with the
registry on 20 March, it partially upheld the applicant's
appeal and ordered the readjustment of his pension, re-
evaluation of the sums due and payment of interest on those
sums."
8. On 17 July 1989 the principal public prosecutor communicated
that judgment to the Minister of Justice in order for him to arrange
for its execution.
PROCEEDINGS BEFORE THE COMMISSION
9. Mr Lombardo applied to the Commission on 29 July 1986. He
complained of the difference in treatment with regard to pensions
accorded to judges of the same grade and length of service, solely on
the basis of the dates of their retirement. He maintained that this
amounted to an interference with their right to the peaceful enjoyment
of their possessions (Article 1 of Protocol No. 1) (P1-1), their right
to life and respect for their dignity (Article 2 of the Convention)
(art. 2) and their right to information on their living standards
during their retirement (Article 10) (art. 10); he also claimed that
it constituted unjustified discrimination (Article 14) (art. 14). In
addition, relying on Article 6 para. 1 (art. 6-1), he complained of the
length of the proceedings brought by him in the Court of Audit.
10. On 9 November 1990 the Commission declared the application
(no. 12490/86) admissible with respect to the last complaint, but
declared the remainder of it inadmissible. In its report of
14 October 1991 (made under Article 31) (art. 31) it expressed the
unanimous opinion that there had been a violation of Article 6 para. 1
(art. 6-1). The full text of the Commission's opinion is reproduced
as an annex to the present judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 249-C 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. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
12. The applicant 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)
13. The Commission considered that this provision was applicable
in the present case, but the Government took the contrary view.
14. 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.
15. The Government argued that the case comprised features of
public law only. Firstly, the claimed pension entitlement derived from
the relationship between the State and Mr Giancarlo Lombardo, and this
relationship was not connected with a contract of employment, as the
appointment of a judge originated in a unilateral act on the part of
the authorities which was subject to special legislation. Moreover,
the scheme to which the applicant belonged had no affinities with a
private insurance scheme, since the Italian State had assumed the
responsibility of regulating its framework and overseeing its
operation.
16. The Court is not convinced by this argument. Even though
disputes relating to the recruitment, employment and retirement of
judges 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 judge 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 judge to obtain an adjustment of the
amount of his pension 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)
17. It remains to determine whether or not a "reasonable time" was
exceeded.
The Commission considered that it had been, but the Government
did not.
18. The period to be taken into consideration began on
11 November 1980, when the proceedings were instituted in the Court of
Audit. It ended on 20 March 1989 when the judgment of that court was
filed.
Despite the contrary view expressed by the Government, the two
periods - totalling nearly four years - during which the objections of
unconstitutionality were before the Constitutional Court should not be
deducted. The Constitutional Court admittedly did not have to deal
directly with Mr Giancarlo Lombardo's case, but the decisions of a
general nature which it had to give were bound to affect the outcome
of the action (see, mutatis mutandis, the Deumeland judgment cited
above, p. 26, para. 77); that was why the Court of Audit adjourned the
proceedings which were pending before it. The period to be considered
thus lasted for approximately eight years and four months.
19. 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.
20. The Government pleaded the complex nature of the case, the time
needed for carrying out various formalities such as notifications, and
the excessive workload of the Constitutional Court.
21. On the first point, the Court acknowledges that the questions
raised before the Court of Audit and the Constitutional Court were of
a certain difficulty. However, this circumstance does not in itself
justify the length of the proceedings.
The Government's other two arguments 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 (see,
among many other authorities, the Tusa v. Italy judgment of
27 February 1992, Series A no. 231-D, p. 41, para. 17).
22. The Court, in agreement with the Commission, notes several
periods of inactivity before the Court of Audit: it took the principal
public prosecutor more than one year to file his submissions, and then
almost five months to refer the case to the combined divisions of the
Court of Audit (see paragraph 7 above, at nos. 26 and 27); the case
subsequently remained adjourned for over six years while awaiting the
outcome of the prosecutor's appeal to the combined divisions in a
similar case.
23. These delays 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).
II. APPLICATION OF ARTICLE 50 (art. 50)
24. According to Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
25. Mrs Nappi claimed compensation under this provision, but did
not specify any figure.
The Government considered the claim to be unfounded; the
Commission did not express a view.
26. The Court accepts that the applicant may have sustained a
degree of non-pecuniary damage, but in the circumstances of the case
the finding of a violation of Article 6 para. 1 (art. 6-1) provides in
itself sufficient just satisfaction.
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 this judgment constitutes in itself sufficient just
satisfaction for any non-pecuniary damage sustained.
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