CASE OF FUSCO v. ITALY

SOLDANI, FUSCO, DI LUCA AND SALUZZI, PIZZI,
SCARFÒ, ARGENTO, TROMBETTA CASES

CASE OF FUSCO v. ITALY

(37/1996/656/841)

JUDGMENT

STRASBOURG

2 September 1997

The present judgment is subject to editorial revision before its reproduction in final form in the Reports of Judgments and Decisions for 1997. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D‑50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.

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SUMMARY[1]

Judgments delivered by a Chamber

Italy – length of proceedings in the administrative courts

I.SCOPE OF THE CASE (Fusco)

Complaint relating to “fair hearing” requirement in Article 6 § 1 of Convention: outside scope of case as defined by Commission's decision on admissibility.

II.ARTICLE 6 § 1 OF THE CONVENTION (“reasonable time”)

Basic distinction in law of many member States of the Council of Europe between civil servants and employees governed by private law – Court has accordingly held that disputes relating to recruitment, careers and termination of service of civil servants are as a general rule outside scope of Article 6 § 1.

Applicants sought recognition of existence of permanent contract of employment (Fusco) or judicial review of one or more decisions of administrative authorities assigning them to a particular staff category (remaining cases) – they thus raised disputes related to their recruitment and careers which did not concern a “civil” right within meaning of Article 6 § 1 – payment of difference in salary directly dependent on prior finding that administrative authorities had acted unlawfully (Trombetta).

Conclusion: Article 6 § 1 not applicable (eight votes to one).

COURT’S CASE-LAW REFERRED TO (IN ONE OR MORE JUDGMENTS)

26.11.1992, Francesco Lombardo v. Italy; 24.8.1993, Massa v. Italy; 28.9.1995, Scollo v. Italy; 21.2.1996, Hussain v. the United Kingdom; 17.3.1997, Neigel v. France

In the case of Fusco v. Italy[2],

The European Court of Human Rights, sitting, in accordance with Article 43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules of Court B[3], as a Chamber composed of the following judges:

MrR. Bernhardt, President,

MrC. Russo,

MrN. Valticos,

MrR. Pekkanen,

MrA.B. Baka,

MrM.A. Lopes Rocha,

MrG. Mifsud Bonnici,

MrP. Kūris,

MrE. Levits,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,

Having deliberated in private on 2 December 1996, 22 February and 28 June 1997,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1.  The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 11 March 1996, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 25836/94) against the Italian Republic lodged with the Commission under Article 25 by an Italian national, Mrs Raffaella Fusco, on 12 March 1994.

The Commission's request referred to Articles 44 and 48 and to the declaration whereby Italy recognised the compulsory jurisdiction of the Court (Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 1 of the Convention.

2.  In response to the enquiry made in accordance with Rule 35 § 3 (d) of Rules of Court B, the applicant stated that she wished to take part in the proceedings and designated the lawyer who would represent her (Rule 31). The lawyer was given leave by the President of the Chamber to use the Italian language (Rule 28 § 3).

3.  On 30 March 1996 the President of the Court, Mr R. Ryssdal, decided, under Rule 21 § 7 and in the interests of the proper administration of justice, that a single Chamber should be constituted to consider the instant case and the cases of Spurio, De Santa, Gallo, Lapalorcia, Abenavoli, Zilaghe, Laghi, Viero, Orlandini, Ryllo, Soldani, Di Luca and Saluzzi, Nicodemo, Pizzi, Scarfò, Argento and Trombetta v. Italy[4]. The Chamber to be constituted for that purpose included ex officio Mr C. Russo, the elected judge of Italian nationality (Article 43 of the Convention), and Mr R. Bernhardt, the Vice-President of the Court (Rule 21 § 4 (b)). On the same day, in the presence of the Registrar, the President of the Court drew by lot the names of the other seven members, namely Mr N. Valticos, Mr R. Pekkanen, Mr A.B. Baka, Mr M.A. Lopes Rocha, Mr G. Mifsud Bonnici, Mr P. Kūris and Mr E. Levits (Article 43 in fine of the Convention and Rule 21 § 5).

4.  As President of the Chamber (Rule 21 § 6), Mr Bernhardt, acting through the Registrar, consulted the Agent of the Italian Government (“the Government”), the applicant's lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 39 § 1 and 40). Pursuant to the order made in consequence, the Registrar received the applicant's memorial on 17 July 1996 and the Government's memorial on 25 July. On 25 June 1996 the Secretary to the Commission had informed the Registrar that the Delegate would submit his observations at the hearing.

5.  On 21 October 1996 the Commission produced the file on the proceedings before it, as requested by the Registrar on the President's instructions.

6.  In accordance with the President's decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 27 November 1996. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government
Mr G. Raimondi, magistrato, on secondment
to the Diplomatic Legal Service,
Ministry of Foreign Affairs,co-Agent,
Mr  G. Manzo, magistrato, on secondment
to the Legislation Office, Ministry of Justice,Adviser;

(b) for the Commission
Mr A. Perenič,Delegate;

(c) for the applicant
Mr F. Romano, avvocato, of the Benevento Bar,Counsel,
Mr C. Chiaromonte, Lawyer,Adviser.

The Court heard addresses by Mr Perenič, Mr Manzo, Mr Raimondi and Mr Romano, and Mr Romano's answer to a question asked by one judge.

AS TO THE FACTS

7.  Mrs Raffaella Fusco is a secretary and lives in Benevento.

8.  On 24 April 1980 she was recruited on a fixed-term contract to the accounts department of Benevento District Council. As her contract had not been renewed after 31 December 1983, she required the Council on 31 July 1984 to reinstate her within sixty days.

When that time-limit expired, the applicant applied to the Campania Regional Administrative Court (“the RAC”) on 8 October 1984 for judicial review of her employer's tacit refusal and recognition of the existence of a permanent contract of employment, in consideration, inter alia, of the conditions under which she had performed her duties, which, she asserted, were comparable to those obtaining in the case of an ordinary contract of employment with the administrative authorities.

9.  On 26 October 1984 she asked for a date to be fixed for the hearing.

10.  On 9 February 1993 the President of the RAC referred the case to the 5th Division. The hearing was held on 18 April 1995. In a judgment delivered on that date and deposited with the registry on 26 September 1995 the RAC declared the application inadmissible.

11.  On 21 November 1995 Mrs Fusco appealed to the Consiglio di Stato. According to the information supplied by her lawyer at the hearing before the Court, the proceedings are still pending.

PROCEEDINGS BEFORE THE COMMISSION

12.  Mrs Fusco applied to the Commission on 12 March 1994. She complained of the length of the proceedings in the administrative courts and relied on Article 6 § 1 of the Convention.

13.  On 6 July 1995 the Commission declared the application (no. 25836/94) admissible. In its report of 28 November 1995 Article 31 it expressed the opinion by twenty-three votes to six that there had been a breach of Article 6. The full text of the Commission's opinion and of the two dissenting opinions contained in the report is reproduced as an annex to this judgment[5].

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

14.  The Government asked the Court to hold that there had been no breach of Article 6 § 1 of the Convention.

AS TO THE LAW

I.SCOPE OF THE CASE

15.  In her memorial to the Court the applicant relied on Article 6 § 1 of the Convention in connection with the “reasonable time” requirement and the “fair and public hearing” requirement.

16.  This latter complaint, however, falls outside the scope of the case as defined by the Commission's decision on admissibility, since it was not examined either in that decision or in the report (see, among other authorities, the Scollo v. Italy judgment of 28 September 1995, Series A no. 315-C, p. 51, § 24, and the Hussain v. the United Kingdom judgment of 21 February 1996, Reports of Judgments and Decisions 1996-I, p. 266, § 44).

The scope of the case is therefore limited to the question whether a “reasonable time” was exceeded.

II.ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

17.  Mrs Fusco complained of the length of the proceedings she had brought in the Campania Regional Administrative Court, which are still pending in the Consiglio di Stato. She relied on Article 6 § 1 of the Convention, which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

The Court must first determine whether that provision is applicable to the present case.

18.  In the present case the Government accepted that Article 6 was applicable, since the dispute concerned the validity of a dismissal, so that the private-law features of the case predominated over its public-law aspects.

The applicant agreed.

19.  The Commission took the view that the – explicit or implicit – pecuniary aspect of what was at stake in the proceedings was decisive for the purpose of determining whether Article 6 was applicable when, as in the present case, the domestic proceedings had a bearing on the applicant's economic rights.

20.  The Court observes that in the law of many member States of the Council of Europe there is a basic distinction between civil servants and employees governed by private law. This has led it to hold that “disputes relating to the recruitment, careers and termination of service of civil servants are as a general rule outside the scope of Article 6 § 1” (see the Massa v. Italy judgment of 24 August 1993, Series A no. 265-B, p. 20, § 26, and the Neigel v. France judgment of 17 March 1997, Reports 1997-II, pp. 410–11, § 43).

In the Massa case (judgment cited above) the applicant applied for a reversionary pension following the death of his wife, who had been a headmistress. In the case of Francesco Lombardo v. Italy (judgment of 26 November 1992, Series A no. 249-B) a carabiniere who had been invalided out of the service because of disability and who maintained that the disability was “due to his service” applied for an “enhanced ordinary pension”. The applicants' complaints related neither to the “recruitment” nor to the “careers” of civil servants and only indirectly to “termination of service” as they consisted in claims for purely pecuniary rights arising in law after termination of service. In those circumstances and in view of the fact that the Italian State was not using “discretionary powers” in performing its obligation to pay the pensions in issue and could be compared to an employer who was a party to a contract of employment governed by private law, the Court held that the applicants' claims were civil ones within the meaning of Article 6 § 1 (see the above-mentioned Neigel judgment, pp. 410–11, § 43).

21.  In the instant case Mrs Fusco sought judicial review of her employer's tacit refusal to reinstate her in her post and recognition of the existence of a permanent contract of employment (see paragraph 8 above). The dispute raised by her thus clearly related to her recruitment and did not concern a “civil” right within the meaning of Article 6 § 1.

Accordingly, Article 6 § 1 is not applicable in the case.

FOR THESE REASONS, THE COURT

Holds by eight votes to one that Article 6 § 1 of the Convention does not apply.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 2 September 1997.

Signed: Rudolf Bernhardt

President

Signed: Herbert Petzold

Registrar

In accordance with Article 51 § 2 of the Convention and Rule 55 § 2 of Rules of Court B, the dissenting opinion of Mr Pekkanen is annexed to this judgment.

Initialled: R. B.
Initialled: H. P.

DISSENTING OPINION OF JUDGE PEKKANEN

1.I regret that I cannot agree with the majority of the Court as regards the applicability of Article 6 of the Convention in the present case.

2.According to the case-law of the Court, Article 6 § 1 is applicable in disputes where the private-law features predominate over the public-law features (see, for example, the Feldbrugge v. the Netherlands judgment of 29 May 1986, Series A no. 99, p. 16, § 40). In the present case the public-law features are considered by the majority to predominate mainly because in the law of many European States a distinction is drawn between civil servants and employees governed by private law. This difference has led the Court to hold that “disputes relating to the recruitment, careers and termination of service of civil servants are as a general rule outside the scope of Article 6 § 1” (see paragraph 20 of the present judgment).

This does not, however, mean that civil servants generally fall outside the scope of the Convention. Indeed, as the Court has stated in its Glasenapp v. Germany judgment of 28 August 1986 (Series A no. 104, p. 26, § 49), “as a general rule the guarantees in the Convention extend to civil servants”. On the other hand, when access to the civil service lies at the heart of the issue submitted to the Court, the facts complained of are not covered by the Convention (ibid., p. 27, § 53).

A civil servant is, accordingly, protected by Article 6 § 1 only if the dispute concerns, not his or her recruitment, career or termination of service, but, for instance, a purely economic entitlement. In addition, it is a requisite for the applicability of Article 6 § 1 that the discretionary powers of the administrative authority in question should not be in issue (see paragraph 20 of the present judgment).

3.The term “civil servant” is used in the judgment without any definition. Accordingly, it must be deemed to cover all administrative officials in the service of the State or local authorities who are not employed under a private-law contract.

This conclusion entails two problems.

Firstly, the duties of the civil servant in question are not taken into account. The rule covers all civil servants from the lowest office cleaner with only menial duties to the highest officials who have, for instance, the power to exercise public authority. In my opinion there are adequate reasons to exclude from the protection of Article 6 § 1 only those civil servants who belong to the latter group. States have an understandable and acceptable interest in deciding on their recruitment, career and termination of service without being subject to judicial control.

Secondly, there are States where employees performing public services are covered partly by public-law and partly by private-law contracts, though their duties are the same. According to the present judgment, all those employees of the State who are governed by public law would be partly deprived of the safeguards in Article 6 while their colleagues employed under private law would enjoy the benefit of that protection. The civil servants in several European States would thus be unequally protected by the Convention, notwithstanding the similarity of their duties.

4.The Court ought to proceed on the basis of an autonomous interpretation of the notion of “civil service” for the purposes of Article 6 § 1, so that the same standards can be applied to individuals holding equivalent or similar posts, independently of the employment system in each member State. A distinction should be drawn between those civil servants exercising public authority and those who do not. Such a distinction has been recognised by the Court of Justice of the European Communities (see, for example and mutatis mutandis, case no. 473/93, Commission v. Luxembourg, judgment of 2 July 1996).

5.In the present case the duties of the civil servant in question did not involve the exercise of public authority. I therefore find Article 6 § 1 to be applicable.

[1]1.  This summary by the registry does not bind the Court.

[2]Notes by the Registrar 

1.  The case is numbered 37/1996/656/841. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[3]2.  Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9.

[4].  26/1996/645/830; 27/1996/646/831; 28/1996/647/832; 29/1996/648/833; 30/1996/649/834; 31/1996/650/835; 32/1996/651/836; 33/1996/652/837; 34/1996/653/838; 35/1996/654/839; 36/1996/655/840; 38/1996/657/842-843; 39/1996/658/844; 40/1996/659/845; 41/1996/660/846; 42/1996/661/847 and 43/1996/662/848.

[5]1.  Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions - 1997), but a copy of the Commission's report is available from the registry.

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