MICONI v. ITALY
Inadmissible
Christos Rozakis
The applicant is an Italian national, born in San Severino (Macerata) and living in Macerata. He is a lawyer by profession. The respondent Government are represented by their Agent, Mr I.M. Braguglia, and by their co-Agent, Mr F. Crisafulli. The facts of the case, as submitted by the parties, may be summarised as follows. By judgment no. 314 of 6 December 1985, the Constitutional Court ruled that the State should, in respect of entitlement to a pension of any nature, guarantee the statutory minimum amount. Since that judgment was not immediately enforced through legislative measures, in 1990 the applicant took proceedings against the Istituto Nazionale della Previdenza Sociale (INPS) in the Italian magistrates' courts on behalf of numerous pensioners. In those proceedings, the applicant requested that his fees, costs and expenses be awarded directly to him (distrazione delle spese, Article 93 of the Code of Civil Procedure). At first instance, in 1992, the magistrates' courts found in the plaintiff's favour and awarded the fees, costs and expenses directly to the applicant. By judgments nos. 495 of 31 December 1993 and 240 of 10 June 1994, the Constitutional Court held that the State should reimburse part of the taxes unjustifiably paid by certain categories of pensioners on their old-age pensions. At second instance, in 1995, the appellate court upheld the magistrates' courts' judgments and awarded fees and legal costs directly to the applicant. In 1995, the INPS appealed against those judgments to the Court of Cassation. On 28 March 1996 the President of the Republic passed a legislative decree (“decreto legge”) (no. 166) enforcing the judgments of the Constitutional Court. It provided that the State would reimburse the amounts by distribution of State bonds to the pensioners over a period of six years. Article 1(3) of Legislative Decree no. 166 extinguished all pending proceedings concerning the reimbursement in question and provided that each party would bear its own legal costs and that the judicial decisions which, on the day of entry into force of the Legislative Decree no. 166, had not yet become final would produce no legal effects. Legislative Decree no. 166/1996 was never converted into a law, but its effects were maintained by section 1(183) of Law no. 662 of 23 December 1996 and section 36 of Law no. 448 of 23 December 1998, which reiterated, inter alia, that the judicial decisions which, on the day of entry into force of the Legislative Decree no. 166, had not yet become final would produce no legal effects. In respect of the above proceedings that the applicant had instituted on behalf of numerous pensioners and which were pending before the Court of Cassation, the latter by numerous judgments given in 1999 and 2000 declared the proceedings extinguished and the legal costs divided between the applicant and the INPS, in accordance with the above-mentioned laws. Some judges in 1999 and 2000 applied to the Constitutional Court for review of the above-mentioned sections of Laws nos. 662/1996 and 448/1998. By judgment no. 310 of 20 July 2000, the Constitutional Court declared the said laws compatible with the Italian Constitution. On 2 April 2001 the applicant was served with an injunction granted to the INPS by the Macerata magistrate court ordering him to pay the sum of 227,646,556 Italian lire [about 117,569.63 euros]. This sum had been paid to the applicant as a consequence of the first instance decisions of the magistrates' courts' (see above). On 12 May 2001 the applicant appealed against the order and instituted proceedings before the Macerata magistrate's court against the INPS. By a judgment issued on 28 May 2003 and filed with the registry on 20 June 2003 the magistrate's court rejected the applicant's claim because the proceedings had been extinguished and the legal costs divided in accordance with the above-mentioned laws and because the first instance decisions of the magistrates' courts' had not become final. It is not clear whether the applicant appealed against this judgment. Under Article 91 of the Code of Civil Procedure, the unsuccessful party in the proceedings bears all legal costs, including the lawyer's fees, costs and expenses incurred by the other party or parties. Under Article 92, the judge can divide the legal costs between the parties when neither is entirely successful or when there are other equitable grounds (“altri giusti motivi”) therefore. Under Article 93 of the Code of Civil Procedure, a lawyer whose client is of limited means can declare that he has advanced the costs and expenses of the proceedings on behalf of his client and has not been paid his fees (onorari), and can accordingly request that, if his client is successful and is thus entitled to be awarded legal costs under Article 91, the court should award the costs directly to the lawyer (distrazione delle spese). Article 93 thus grants a special protection to the lawyer, who enters into a direct relationship with the opposing party. He can subsequently act autonomously against the losing party in order to recover his fees, costs and expenses. The lawyer remains entitled to claim his fees from his client, however. Under Legislative Decree no. 166/1996 all pending proceedings concerning the reimbursement of taxes unjustifiably paid by pensioners were extinguished and the legal costs were divided between the parties. Under Article 77 (3) of the Italian Constitution, a legislative decree is a provisional Act which ceases to be valid if not converted into a law. Legislative Decree no. 166/1996 was not converted into a law. However, its effects were maintained by section 1(183) of Law no. 662 of 23 December 1996 and section 36 of Law no. 448 of 23 December 1998. Law no. 448 of 23 December 1998 entered into force on 1 January 1999. Under Article 1 of Constitutional Law no. 1 of 9 February 1948 “The question of the constitutionality of a law or equivalent act of the Republic which has been raised either by the judge or by any of the parties to the proceedings and has not been considered manifestly ill-founded by the judge shall be referred to the Constitutional Court for decision.”