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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: 21 EHRR 188, [1992] ECHR 73, (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