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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