SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 31227/96
by Virginia AMBRUOSI
against Italy
The European Court of Human Rights (Second Section) sitting on 3 February 2000 as a Chamber composed of
MrC.L. Rozakis, President,
MrM. Fischbach,
MrB. Conforti,
MrP. Lorenzen,
MrsM. Tsatsa-Nikolovska,
MrA.B. Baka,
MrE. Levits, judges,
andMrE. Fribergh, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 April 1996 by Virginia Ambruosi against Italy and registered on 30 April 1996 under file no. 31227/96;
Having regard to the reports provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 2 June 1999 and the observations in reply submitted by the applicant on 19 August 1999;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Italian national, born in 1948 and living in Bari. She is a lawyer by profession. She is represented before the Court by M. Ascanio Amenduni, a lawyer practising in Bari.
A.Particular circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
By judgments nos. 141/1989 and 78/1993 the Constitutional Court ruled that the State should reimburse part of the taxes unduly paid by certain categories of pensioners on their old-age pensions.
The applicant acted as counsel for a number of pensioners (fifty-three) falling within these categories, who instituted proceedings against the State before the Italian Magistrate’s courts. In certain cases, she requested a direct discharge of her fees, costs and expenses.
By judgments nos. 3295 of 22 November 1995, 3491 of December 1995, 3501 of 4 December 1995, 3504 of 4 December 1995, 3505 of 4 December 1995, 3506 of 4 December 1995, 3510 of 4 December 1995, 681 of 5 February 1996 and 1898 of 27 March 1996, the Trani Magistrate found in the plaintiffs’ favour and had discharged the applicant’s fees, costs and expenses directly to her. The total amount of the discharged fees was 12,900,000 ITL.
On 28 March 1996 the President of the Republic passed Law Decree No. 166 aiming at the enforcement of the judgments of the Constitutional Court, whereby it was decided that the State would reimburse the amounts by way of distribution of State bonds to the relevant pensioners over a period of six years. Paragraph 3 of Section 1 of this Law Decree extinguished all pending proceedings concerning the reimbursement in question and provided that the legal costs would be considered as offset between the parties. It further provided that the judicial decisions which, on the day of entry into force of the decree, had not yet become final would produce no legal effects.
B.Relevant domestic law
Under Section 91 of the code of civil procedure, the unsuccessful party in the proceedings bears all the legal costs, including the lawyer’s fees, costs and expenses incurred by the other party or parties.
Under Section 92, the judge can offset the legal costs between the parties when neither is entirely successful or when there are other equitable grounds therefor (altri giusti motivi).
Under Section 93 of the code of civil procedure, lawyers can request that the court, when awarding legal costs, discharge directly (distrazione delle spese) to them the fees, costs and expenses which they declare to have advanced on their client’s behalf.
COMPLAINTS
1.The applicant complains under Article 1 of Protocol No. 1 to the Convention that she was deprived of her right to the payment of her fees, costs and expenses in connection with the proceedings terminated by Law Decree no. 166/96. She argues that the State decided to depart - for its own benefit and to her detriment - from the general principle that the unsuccessful party bears the legal costs incurred by the other party. She further maintains that she had committed herself not to request any payment of her fees, costs and expenses from her clients, given that she expected to be paid by the State, so that she could not recover her credit from them and thus lost a significant amount of money.
2. The applicant also complains under Article 13 of the Convention that she does not have any remedy against the alleged violation of her property rights.
3.The applicant finally argues that she was a party to the proceedings to the extent that she had requested direct payment of her fees, costs and expenses. Given that the State unilaterally terminated the proceedings, without her being entitled to oppose it, she maintains to have been deprived of her rights under Article 6 § 1 of the Convention.
PROCEDURE
The application was introduced on 4 April 1996 and registered on 30 April 1996.
On 23 February 1999 the Court decided to communicate the application to the respondent Government.
The Government’s written observations were submitted on 2 June 1999, after an extension of the time-limit fixed for that purpose. The applicant replied on 19 August 1999, also after an extension of the time-limit.
THE LAW
1.The applicant complains under Articles 1 of Protocol no. 1 about the offsetting of legal costs decided by Law Decree no. 166 of 1996.
Article 1 of Protocol no. 1 provides as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Government consider that the loss of earnings which the applicant suffered in connection with Law Decree no. 166/96 is the consequence of her own free choice not to claim her fees from her clients. The State should not be held accountable for this free choice.
The Government further claim that there was no “possession” within the meaning of Article 1 of Protocol No. 1, given that no judgment awarding legal costs had been issued yet. Accordingly, the applicant cannot claim to be a victim of this provision.
The applicant considers that the State interfered with her enjoyment of a “possession” of hers. In fact, she had requested that legal costs be discharged directly to her so that, according to the Italian case-law (inter alia judgments of the Court of Cassation no. 3616/74, 2870/84, 6256/79, 2307/74, 2494/69, 670/62), she had an autonomous right to claim the payment of her fees from the State. That the State would lose in the proceedings was undoubted, which is confirmed by the fact that the Government issued Law Decree no. 166/96.
Furthermore, the applicant has produced copy of nine judgments in which the Trani Magistrate had awarded her certain sums of money as direct discharge of her fees: these judgments had not become final at the time when Law Decree no. 166/96 entered into force and therefore remained unproductive as to their legal effects. The applicant alleges that more judgments and injunctions of payment similar to these had been issued in her favour.
The applicant adds that she cannot claim her fees from her clients, given that they are of poor means, they did not lose in the proceedings and they had an agreement with her.
The Court considers the application raises complex and serious issues which require determination on the merits. It follows that it cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the application inadmissible has been established.
2.The applicant further complains under Article 13 of the lack of remedies for the offsetting of legal costs decided by Law Decree no. 166 of 1996.
Article 13 of the Convention provides:
“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government argue that the complaint under Article 13 should also be declared inadmissible, given that it relates to a right which is not guaranteed by the Convention.
The Court recalls that Article 13 of the Convention does not stretch to guarantee a remedy allowing a Contracting State’s law as such to be challenged before a national authority on the ground of being contrary to the Convention or equivalent domestic norms (Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 30, § 77 in fine).
It follows that this complaint is incompatible with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4.
3.The applicant finally complains under Article 6 of the Convention that the proceedings in which she had requested the direct payment of her fees were terminated by a unilateral authoritarian act of the Executive.
Article 6 of the Convention, insofar as relevant provides:
“ In the determination of his civil rights and obligations (…) everyone is entitled to a fair (…)hearing (…) by a(…) tribunal established by law..
The applicant maintains that she did not benefit from her right to a fair hearing. The principle of equality of the arms was violated in that the State, which was bound to lose in the proceedings and to be liable for legal costs, terminated them, without the applicant being able to react.
The applicant further argues that the State violated the defence rights of her clients, given that it frustrated the possibility - which exists in Italian law under Section 93 of the code of civil procedure - that a lawyer represents an individual of poor means without seeking the payment of advances.
The Court recalls that for Article 6 § 1 in its “civil” limb to be applicable , there must be a dispute (“contestation” in the French text) over a right which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question. As the Court has consistently held, mere tenuous connections or remote consequences are not sufficient to bring Article 6 § 1 into play (see, for example, the Balmer-Schafroth and others v. Switzerland judgment of 26 August 1997, Reports of judgments and decisions 1997-IV, p. 1357, § 32).
In the present case, the Court observes that the proceedings in question involved the determination of the relevant pensioners’ right to the reimbursement of unduly paid sums. The applicant, who acted as counsel for these pensioners, was not herself party to these proceedings, not even in those cases in which the applicant had obtained the direct payment of her fees given that her clients had not sought the withdrawal of the decision on direct payment. The applicant’s right to the payment of her fees was never the direct object of the proceedings, and was never “in dispute” within the meaning of Article 6.
It is true that the applicant had obtained specific rulings in her favour in a certain number of judgments. Those rulings would have given her title to issue proceedings against the State, in case the latter had failed to pay of the relevant sums. At that stage, however, those rulings only concerned the modality of payment of legal costs.
In these circumstances, the Court considers that in the proceedings in question there was no “dispute” about the applicant’s “civil rights and obligations” within the meaning of Article 6 of the Convention.
Insofar as the applicant alleges a breach of her clients’ defence rights, the Court observes that she raised this aspect of the complaint for the first time in her observations in reply to the Government’s, that is to say in August 1999, which is more than six months from the entry into force of Law Decree no. 166/96. At any rate, the Court notes that the applicant, who is not herself the victim of the alleged breach, does not represent her clients before the Court and cannot thus complain on their behalf either.
It follows that both aspects of this complaint are incompatible with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected by application of Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the applicant’s complaint about the offsetting of the legal costs by application of Law Decree no. 166/96;
DECLARES INADMISSIBLE the remainder of the application.
Erik FriberghChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy