D’Amico V. Italy

With the decision D’Amico V. Italy (no. 46586/14, judgment of 17 February 2022), the ECtHR ruled on an application concerning a legislative intervention during pending proceedings, which the applicant argued had violated her right to a fair trial under Article 6.1 of the  ECHR. 

In the circumstances of the case,  the applicant’s husband, A.C., retired in 1990. His pension, under section 2.1 of Law no. 324/1959, included a special supplementary allowance ( IIS: indennità integrativa speciale), formed as a cost-of-living adjustment separate from the main pension payment. At the time, public sector pensions included separate elements like the IIS, unlike private-sector pensions. 

On 23 December 1994, Law no. 724/1994 harmonised public and private schemes and allowed existing public pensioners, such as A.C., to maintain full IIS payments. Then, Law no. 335/1995 introduced a new pension calculation system, where IIS was included in the basic pension and calculated as a percentage, but did not expressly repeal the earlier law.

After A.C. died in 2002, the applicant received a survivor’s pension calculated under the new system, paid as a percentage of A.C.’s overall original pension. In 2005, the applicant appealed to the Basilicata Court of Auditors against INPDAP (now INPS), claiming entitlement to the full IIS. In 2007, the Basilicata Court of Auditors granted the applicant’s claim, since the new law applied only to the pensions which had been paid after 1 January 1995. INPDAP appealed the ruling.

While the appeal was still pending, Law no. 296/2006 entered into force. This Law provided an authentic interpretation of section 1.41 of Law no. 335/1995, establishing that the new calculation system will be applied to all survivors’ pensions, even if the basic pension was awarded before 1995.  The Constitutional Court held that the reform was constitutionally sound as the new law reinforced the Italian pension system. Accordingly, in 2013, the Central Section of the Court of Auditors, as the court of appeal, reversed the first-instance judgment and dismissed the applicant’s claim.

Before the ECtHR, the applicant claimed that by applying retrospectively the interpretative law to a case still pending before a court, Italy infringed the principle of independence of the judiciary in violation of Article 6 ECHR.

Italy contested the admissibility of the case, defending the legitimacy of the 2006 interpretative law (as later confirmed by the Constitutional Court). The application was therefore manifestly ill-founded. In addition, Italy objected that the applicant had not suffered a significant disadvantage since the overall amount she received was 41,523 euros instead of  50,762 euros if the IIS had been paid to her in its entirety under section 15.5 of Law no. 724/1994. The ECtHR dismissed the first argument, as closely related to the merits of the case. As for the second point, it noted that the applicant was an elderly pensioner relying solely on her survivor’s pension, and declared the complaint admissible. 

During the proceedings on merits, Italy denied that the State had interfered in favour of one of the parties in pending proceedings. The 2006 interpretative law was adopted to solve the uncertainty derived from two differing interpretations of Law no. 335/1995.

The ECtHR noted that Law No. 296/2006 was introduced while the proceeding was still ongoing. It effectively decided the outcome of the case, benefiting the State and placing the applicant at a disadvantage. Since the Court of Auditors had already ruled in favour of the applicant, the ECtHR could not understand why new legislation was needed to resolve a dispute that the courts were already addressing. The ECtHR pointed out that the differences in case law should be resolved by higher courts, not by legislation. The ECtHR acknowledged the goal of pension harmonisation and financial balance, but this goal is not sufficient grounds for Parliament to step in and decide the outcome of legal disputes. Unlike other cases decided by the ECtHR (namely Building Societies v. the United Kingdom, nos. 21319/93 and two others, judgement of  23 October 1997, and OGIS-Institut Stanislas and Others v. France, nos. 42219/98 and 54563/00, judgement of 27 May 2004), in which applicants had exploited loopholes or unintended flaws in the law that Parliament sought to fix, the law in this case was already clear and complete. Therefore, legislative intervention was unnecessary and unjustified.  As a result, the ECtHR found a violation of Article 6.1 of the ECHR.

As regards compensation, the applicant claimed EUR 98,435.82 in respect of pecuniary and non-pecuniary damage. The ECtHR awards the applicant EUR 9,700 in respect of pecuniary damage, based on loss of opportunities, and EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. 

Since the applicant also claimed costs and expenses incurred before the ECtHR , but did not quantify this claim and did not provide the ECtHR  with any supporting documents, the ECtHR  dismissed the claim.

Cianchella and Others V. Italy

Also in the case Cianchella and Others v. Italy (no. 65808/13 and 2 others, 58494/14, 66370/14, judgment of 23 June 2022), the applicants, surviving spouses of deceased public-sector employees, claimed a violation of their right to a fair trial under Article 6.1 of the ECHR due to legislative interference during pending proceedings. Like in D’Amico, they argued that the special supplementary allowance (indennità integrativa speciale) should have been paid in full. However, while their case was still before the Lazio Court of Auditors, the Italian Parliament enacted Law no. 296/2006, whose Section 1(774) retroactively reinterpreted existing law to include the allowance as part of the main pension, payable only as a percentage. This legislative intervention led to the dismissal of their claims, a decision upheld on appeal.

The European Court of Human Rights joined the related applications and declared them admissible, finding that the enactment and application of Law no. 296/2006 had unjustifiably interfered with pending judicial proceedings by determining their outcome in favour of the State. 

The Court unanimously held that there had been a violation of Article 6.1 of the ECHR due to the retrospective legislative intervention that deprived the applicants of a fair adjudication of their civil rights.

Two applicants did not receive compensation due to failing to submit their claims on time, while the third applicant, under application no. 65808/13, was awarded €4,804 in pecuniary and €6,000 in non-pecuniary damages based on an equitable assessment; her claim for legal costs was rejected due to lack of supporting evidence.

Palaia v. Italy

Law 296/2006 is at the centre of the case Palaia v. Italy (no. 23593/14, judgment of 10 November 2022). The applicant complained that the legislative interference, which imposed a definite interpretation of a previous law on the pension system while the proceedings to settle a pension-related controversy was still pending, deprived her of the right to a fair trial under Article 6.1 of the ECHR.

The applicant’s father, F.P., was a pensioner who had transferred the pension contributions he paid in Switzerland for several years of work, following the Italo-Swiss Convention on Social Security of 1962. In 2005, F.P. lodged a claim with the Lecce District Court, arguing that the INPS’s calculation method was incompatible with the Italo-Swiss Social Security Convention of 1962. However, his appeal was dismissed because Law No. 296/2006 entered into force on 1 January 2007, which introduced a new legal interpretation that supported the calculation method used by INPS. Accordingly, F.P. appealed to the Lecce Court of Appeal on 4 February 2013, which upheld the judgment of 1 December 2008 of the Lecce District Court.

On 25 May 2012, while proceedings were still pending before the Lecce Court of Appeal, F.P. died. The applicant, as F.P.'s heir, did not lodge a further appeal to the Court of Cassation, considering it futile in light of the new legislation and the prevailing case-law.  On 1 February 2018, notice of the application was given to Italy. On 4 February 2019, F.P.’s widow and two sons informed the ECtHR that they are also heirs of F.P. and wished to participate in the proceedings brought by the applicant.

Italy objected to the admissibility of the case because the heirs had not informed the ECtHR of their wish to pursue the application several years after F.P.'s death. However, the ECtHR declared the case admissible, on the grounds that the complaint was neither manifestly ill-founded nor inadmissible on any other ground listed in Article 35 of the ECHR. The ECtHR held that the applicant, as F.P.’s heir, had a “definite pecuniary interest” in the proceedings. However, F.P.'s widow and his sons could not participate in the proceedings, as they had not demonstrated sufficient interest in the case and had expressed their intention to join six years after F.P.’s death, without providing any justification for the delay.

As to the merits, the ECtHR found that the Italian Government had intervened in favour of one of the parties in the ongoing legal proceedings by adopting the impugned law. As a result, there had been a violation of Article 6 of the ECHR. The ECtHR noted that the circumstances of this case were both factually and legally similar to those described in Maggio and Others v. Italy (nos. 46286/09 and four others, the judgment of 31 May 2011) and Stefanelli and Others v. Italy (nos. 21838/10 and seven others, the judgment of 1 June 2017).

The ECtHR ordered Italy to pay the applicant compensation of EUR 17,675 in respect of pecuniary damage and EUR 5,000 in respect of non-pecuniary damage. Additionally, the ECtHR did not award reimbursement of costs and expenses because the applicant did not submit such a claim.

Gusmerini and Others V. Italy

A similar issue arose in the case of Gusmerini and Others v. Italy (application no. 50345/10, judgment of 29 September 2022), which involved five joined applications. In its judgment, the ECtHR ruled on alleged violations of the right to a fair trial under Article 6.1 ECHR and Article 1 of Protocol No. 1 to the ECHR, concerning legislative intervention during ongoing civil proceedings.

The applicants complained under Article 6.1 that the enactment of section 1, subsection 777, of Law no. 296/2006 violated their right to a fair hearing. They also argued that it constituted an unjustified interference with their possessions, contrary to Article 1 of Protocol No. 1 to the ECHR.

As pensioners, the applicants had transferred pension contributions they had paid in Switzerland for several years of work, under the terms of the Italo-Swiss Convention on Social Security of 1962. They also filed claims before the Lecce District Court, asserting that the INPS’s method of calculating their pension was inconsistent with the Italo-Swiss Convention. However, the court dismissed their claims due to the entry into force of Law no. 296/2006 during the proceedings.

Considering its case-law (Maggio and Others v. Italy, nos. 46286/09 and four others, the judgment of 31 May 2011 and Stefanelli and Others v. Italy, nos. 21838/10 and seven others, the judgment of 1 June 2017), which involved virtually identical circumstances, the Court found a violation of Article 6 of the ECHR.

Regarding the complaints under Article 1 of Protocol No. 1, the applicants argued that Law no. 296/2006 had resulted in them receiving a much lower pension than they were entitled to. However, the ECtHR rejected these complaints on different grounds.

Applications nos. 51045/10, 53300/10, and 53301/10 were declared incompatible ratione personae with the ECHR under Article 35.3.a. and rejected under Article 35.4 of the ECHR, as the applicants failed to prove any interference with their possessions. Italy had argued that their pensions’ amounts would not have been higher even without the application of the law. In response, the applicants admitted they lacked access to the relevant data.
The applicant in no. 50345/10 claimed a 0.62% pension reduction. However, the Court found that this minimal reduction below half of the pension was reasonable. The application was deemed manifestly ill-founded and rejected under Article 35.3.a and 35.4 of the ECHR.

The applicants in nos. 51064/10 and 53223/10 claimed they had lost more than half their pensions. But relying on INPS data, the ECtHR noted that the pensions they would have received without the law were actually equal to or lower than the amounts they did receive. Since the applicants provided no evidence justifying a different calculation, the ECtHR ruled they could not claim to be victims of a violation under Article 1 of Protocol No. 1.

Accordingly, the ECtHR found a violation of Article 6.1 of the ECHR, but no violation of Article 1 of Protocol No. 1. As to pecuniary damage, the ECtHR held there was no need to award any amount, citing the INPS’s calculations and its previous conclusions (Stefanelli and Others v. Italy (nos. 21838/10 and seven others, the judgment of 1 June 2017). However, the Court ordered the State to pay the applicants jointly EUR 3,000 in respect of costs and expenses, plus any applicable taxes.