[TRANSLATION]

THE FACTS

The applicants [Mr Giuliano Preda and Mr Raniero Dardari], who were born in 1936 and 1939, are Italian nationals and live in Bologna. They are retired teachers.

The applicants were represented before the Court by Mr M. Stefani, a lawyer practising in Bologna.

The facts of the case, as submitted by the parties, may be summarised as follows.

Ruling on an application filed jointly by the applicants in 1989, the Emilia-Romagna Regional Administrative Court decided in May 1991 that, when determining the applicants’ career structure and salary, Bologna City Council should also take into consideration, in accordance with Law no. 958 of 1986, the national service carried out by the applicants.

After that judgment had become final and Bologna City Council had begun to implement it, the Italian legislature adopted Law no. 412 of 1992. Section 7 of that statute, giving an interpretation of Law no. 958 of 1986, provided that in future only national service carried out at the time of, or after, the entry into force of the statute could be taken into consideration.

On 10 March 1992 Bologna City Council informed the applicants that in future it would apply that statute when determining their career structure and salary.

In May 1992 the applicants applied to the same administrative court for enforcement of the original judgment and, inter alia, challenged the constitutionality of the legislative provision which was adverse to them. In their submission, that provision infringed the principle that legislation must not be applied retrospectively, since it affected decisions which had become final. The applicants requested the administrative court to find that the first judgment had not been enforced and to appoint a “commissioner ad acta” to enforce it.

The Emilia-Romagna Regional Administrative Court, finding that the constitutionality issue was not manifestly ill-founded, stayed the proceedings and referred the point to the Constitutional Court.

In judgment no. 385 of 7 November 1994 the Constitutional Court dismissed the constitutionality issue. It held that in the field of civil servants’ economic rights, the retrospective application of a legal provision was subject only to the general principle of reasonableness. Since the provision in question was an interpretative one, it was reasonable. Furthermore, it was designed to ensure equal treatment of all those who had carried out national service during the same period.

As the applicants did not resume the proceedings in the administrative court, that court did not rule on their application for enforcement. The applicants submitted that they had not resumed the proceedings because, following the decision of the Constitutional Court, the administrative court would inevitably have dismissed their application.

COMPLAINTS

The applicants relied on Article 6 § 1 and Article 17 of the Convention. They submitted that there had been a violation of those provisions in that the legislature had introduced an amendment, through Law no. 412 of 1992, rendering ineffective the judgment delivered in 1991.

PROCEDURE

The applications were lodged with the European Commission of Human Rights (“the Commission”) on 20 and 7 April 1995 and registered on 8 and 30 August 1995.

On 10 March 1998 the Commission decided to join the applications and to give notice of them to the Government, inviting them to submit their written observations on the admissibility and merits of the application.

The Government submitted their observations on 20 July 1998, after an extension of time, and the applicants replied on 14 October 1998.

Following the entry into force of Protocol No. 11 on 1 November 1998 and in accordance with Article 5 § 2 thereof, the case falls to be examined by the Court.

THE LAW

1.  The applicants submitted first that the passing of Law no. 412 of 1992 had rendered ineffective the administrative court’s judgment of May 1991, which had been advantageous to them in terms of career and salary. The legislature should have specified that a legal position resulting from a final decision was unalterable. The applicants alleged that there had been a violation of Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations …, everyone is entitled to a fair … hearing … by [a] … tribunal … ”

The Government pleaded first of all that the applications were inadmissible ratione materiae because they did not concern a “civil” right, since the proceedings in the national courts had related to the restructuring of the applicants’ careers. The Government referred to the case-law of the Court (see the Spurio v. Italy judgment of 2 September 1997, Reports of Judgments and Decisions 1997-V).

With regard to the merits, the Government contended that the complaint was unfounded. They noted that the principle that final judgments cannot be overridden was a general principle that was part of the Italian legal system. Additionally, under domestic case-law, new legislation did not apply to situations arising as a result of a final judgment. However, there was nothing in the Italian legal system to prevent a new statute from applying or giving different effect to events which had occurred previously, provided that the statute was reasonable, that is to say that its effect on previously determined situations was offset by its compliance with other “principles of equal or greater importance”.

The Government pointed out that in the instant case the purpose of the statute which had given rise to the dispute had not been to nullify a judgment of an administrative court, but to resolve retrospectively and uniformly – in cooperation with the finance authorities – the problem of civil servants’ salary scales in order to ensure that the same salary would be paid in similar cases. The statute would have been unreasonable if it had excluded from its scope cases already disposed of in a final judgment.

Since the statute had not been passed in order to change court decisions or to affect specific situations, the instant case differed from the case of Stran Greek Refineries and Stratis Andreadis (see the Stran Greek Refineries and Stratis Andreadis v. Greece judgment of 9 December 1994, Series A no. 301-B).

The applicants submitted that Article 6 was applicable to the case because the dispute concerned the payment of salaries, and under Italian law the administrative courts alone had jurisdiction in the field of personal economic rights.

With regard to the merits, the applicants conceded that a statute could have retrospective effect, but contested the argument that other “principles of equal or greater importance” might prevail over the principle of the separation of powers. Law no. 412 of 1992 violated that principle, thereby rendering ineffective a judgment which had become final.

The Court observes that the applicants did not complain of the manner in which a set of judicial proceedings had been conducted, but of the effects of a statute on a court’s decision in their regard.

The Court reiterates that an applicant can claim to be the victim of a statute; however, the Court cannot undertake an abstract review of the statute being challenged. It must take into account the legal position personally affecting the applicant (see the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 13, § 27). Accordingly, the point at issue here is whether, in the instant case, there was a breach of the right to a fair trial, as guaranteed by Article 6 § 1, in the light of the effects of the statute in question on the judgment of May 1991.

With regard to the applicability of Article 6 § 1, it should be pointed out that disputes relating to the recruitment, careers and termination of service of civil servants are as a general rule outside the scope of Article 6, whereas that provision is applicable where the right asserted by the applicant is essentially economic (see, among other authorities, the Nicodemo v. Italy judgment of 2 September 1997, Reports 1997-V, p. 1703, § 18).

The Court does not, however, consider it necessary to determine that issue, since the application must in any event be declared inadmissible for the following reasons.

Issues similar to the one raised by the applicants have already been examined by the Convention institutions.

In the case of Stran Greek Refineries and Stratis Andreadis an arbitration award acknowledging the existence of a debt owed by the State had been annulled by a legislative act. The Court found in that case that the legislature’s intervention “[had taken] place at a time when judicial proceedings in which the State was a party were pending” (see the Stran Greek Refineries and Stratis Andreadis judgment cited above, pp. 81-82, § 47). The Court affirmed that “the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude any interference by the legislature with the administration of justice designed to influence the judicial determination of [a] dispute” (ibid., § 49). It held that the State had infringed the applicants’ rights “by intervening in a manner which was decisive to ensure that the – imminent – outcome of proceedings in which it was a party was favourable to it” (ibid., § 50).

In the Zielinski and Pradal case, which is currently pending before the Court, the Commission found in its report that “while the legislature might have an interest in dealing with the present matter in a bill already before Parliament, in order to avoid the delays of the legislative machinery, its intervention came at a time when legal proceedings to which the State was a party were pending … The Commission also notes that the drafting of section 85 of the Act of 18 January 1994 was expressly aimed at the pending actions, including those concerning the applicants” (Zielinski and Pradal v. France, application no. 24846/94, report of the Commission of 9 September 1997, § 57).

In another case, also pending before the Court, the Commission found that the legislature had intervened “while the proceedings concerning the applicants, to which the State was a party, were pending in Colmar Court of Appeal”. It considered that “the effect of the intervention of the legislature was to make it inevitable that the applicants would lose in Colmar Court of Appeal, since section 85 of the Law of 18 January 1994 was expressly stated to apply to cases which were still ongoing” (Gonzalez and Others v. France, applications nos. 34165/96-34173/96, report of the Commission of 21 October 1998, §§ 69 and 71).

The Court points out that in civil proceedings Article 6 of the Convention does not provide that final judgments shall not be overridden.

Contrary to what occurred in the cases cited above, the legislature in this case did not intervene until after the proceedings brought by the applicants had ended. The legislature’s intention was not to interfere with the applicants’ case but to ensure equal treatment of all those in the same position as the applicants, whether or not they had brought judicial proceedings to establish their entitlement.

The Court considers that there is nothing to indicate that the State had had the intention of intervening, in a manner contrary to Article 6, in the original proceedings brought by the applicants.

In so far as the applicants were justified in complaining of the unfairness of the proceedings brought in 1992 to enforce the first judgment, the Court observes that the legislature intervened before they applied to the court.

There is therefore no basis on which to conclude that the proceedings in question infringed the guarantees inherent in Article 6 § 1.

It follows that this complaint is manifestly ill-founded and must accordingly be rejected pursuant to Article 35 § 3 of the Convention.

2.  The applicants also relied on Article 17 of the Convention, which reads:

“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth [in it] or at their limitation to a greater extent than is provided for in the Convention.”

The Court notes that the purpose of this provision is to prevent the principles laid down by the Convention from being exploited for the purpose of engaging in any activity or performing any act aimed at the destruction of the rights and freedoms set forth in the Convention. Furthermore, Article 17 “covers essentially those rights which would facilitate the attempt to derive therefrom a right to engage in activities aimed at the destruction of the rights and freedoms set forth in the Convention” (see Michael Kühnen v. Germany, application no. 12194/86, decision of the Commission of 12 May 1988, Decisions and Reports 56, p. 205).

It does not appear from the information provided by the applicants that the Italian authorities were aiming to destroy the rights and freedoms guaranteed to the applicants by the Convention and more particularly by Article 6 thereof.

It follows that this complaint also is manifestly ill-founded and must accordingly be rejected pursuant to Article 35 § 3 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

preda and dardari v. italy DECISION