CASE OF FRANCESCO LOMBARDO v. ITALY
Preliminary objection withdrawn (non-exhaustion of domestic remedies);Violation of Art. 6-1;Just satisfaction not applied
C. Russo;John Freeland;N. Valticos;R. Pekkanen
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): 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.