CASE OF GIANCARLO LOMBARDO v. ITALY
Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient
C. Russo;John Freeland;N. Valticos;R. Pekkanen
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.