DI NARDO AND ALBERTI v. ITALY

FIRST SECTION

DECISION

Applications nos. 17243/20 and 17287/20
Valeria DI NARDO against Italy
and Sara ALBERTI against Italy

The European Court of Human Rights (First Section), sitting on 19 September 2024 as a Committee composed of:

 Lətif Hüseynov, President,
 Raffaele Sabato,
 Alain Chablais, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the applications against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The applications concern the applicants’ complaint that they were excluded from a competitive examination of candidates wishing to join the police (Polizia di Stato), on account of the fact that, on the day of the medical assessment for physical eligibility, they had visible tattoos on their wrists that, although being removed, had not been completely removed yet.

2.  Pursuant to Article 3 § 1 of the Decree of the Ministry of the Interior no. 198 of 30 June 2003, as integrated by Article 2 (b) of the Table annexed to the Decree, the presence of tattoos on parts of the body which are not covered by the uniform are a cause of exclusion from the competitive examination to be recruited by the police.

3.  On 26 May 2017 a notice for a competition for accessing the police was published in the Official Gazette of the Italian Republic. The notice indicated, among the ineligibility grounds (cause di inidoneità), the presence of tattoos on body parts not covered by the uniform.

4.  Both applicants applied for the competition in June 2017.

5.  On an unspecified date in 2017 Ms V. Di Nardo (“the first applicant”), initiated a laser treatment in order to remove two tattoos that she had on her wrists. Ms S. Alberti (“the second applicant”) initiated the same treatment in August 2017 in order to remove a tattoo that she had on her right wrist.

6.  In April 2018, after the medical assessment, the applicants were declared ineligible on account of the fact that they both had small tattoos in the course of removal on their right wrists. On this basis, they were excluded from the competition.

7.  In June 2018, the applicants instituted proceedings before the Lazio Regional Administrative Tribunal (Tribunale Amministrativo Regionale, “TAR”) in order to obtain the annulment of the declaration of ineligibility and of their exclusion from the competition. They further requested, as a precautionary measure, those acts to be suspended.

8.  By orders issued on 20 June 2018 (as regards the first applicant) and 12 July 2018 (as regards the second applicant), the TAR observed that the declarations of ineligibility had been based on tattoos which had been removed for the most part. The TAR upheld the applicants’ requests and provisionally admitted them to the competition.

9.  The applicants therefore participated in the competition, which they successfully completed. On 8 November 2018 they started to attend a training course and to receive a salary as agent trainees.

10.  By January 2019 (the first applicant) and June 2019 (the second applicant) the tattoos had been completely removed.

11.  On 15 March 2019 the TAR upheld the applicants’ claims. In its view, the administrative authority had erred in excluding the applicants from the competition on account of the presence of tattoos, as the latter had been almost completely removed. Moreover, the administrative authority’s decision was not sufficiently reasoned as it had improperly compared the traces of tattoos in the course of removal with proper tattoos.

12.  In April 2019 the Ministry of the Interior appealed against the judgments before the Council of State. The Ministry further requested, as a precautionary measure, the suspension of the effects of the impugned judgments.

13.  By orders issued on 14 June 2019 (the first applicant) and 17 June 2019 (the second applicant), the Council of State upheld the Ministry’s requests and suspended the effects of the impugned judgments.

14.  Meanwhile, the applicants successfully completed the training and, on 21 June 2019, were admitted to the police. On 26 June 2019 they swore in as members of the police.

15.  By judgments issued on 3 October 2019 (the first applicant) and 27 January 2020 (the second applicant), the Council of State upheld the Ministry’s appeals, quashed the first instance judgments and confirmed the applicants’ exclusion from the competition. It held that the conditions for eligibility had to be possessed at the moment of expiry of the deadline for applying to the competition and that the administrative authority had to assess the existence of tattoos not covered by the uniform, without attributing any relevance to the fact that they were in the course of removal. It observed that, on the day of the medical assessment, the tattoos had not been completely removed, and concluded that this justified the applicants’ exclusion from the competition.

16.  The applicants complained under Article 6 § 1 of the Convention of an alleged breach of the principle of legal certainty, as the Council of State decided their case in an excessively formalistic way, and of alleged errors in the assessment of the evidence and the interpretation of the domestic law. The applicants further relied on the fact that a different approach could be identified in the case-law of the Council of State, aimed at attributing relevance to the fact that the tattoos were in the course of removal at the moment of the medical assessment. In this connection, they invoked Article 14 of the Convention.

17.  The applicants further complained under Article 8 of the Convention that the exclusion from the competition, which they had successfully completed, entailed an unjustified and disproportionate interference with their right to access to a profession. They argued, in particular, that they lost a job that they had legitimately obtained, including the salary, notwithstanding that they had successfully completed the competition and had undergone a costly laser treatment in order to remove the tattoos.

18.  Lastly, relying on Article 1 of Protocol No. 1 to the Convention, the applicants complained of an alleged breach of their “legitimate expectation” to earn a salary as police officers.

THE COURT’S ASSESSMENT

19.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

20.  Insofar as the applicants complained that the domestic authorities decided their case in an excessively formalistic way, the Court reiterates that it is not its role to deal with alleged errors of law or fact committed by the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention, for instance where it can, exceptionally, be said that they are constitutive of “unfairness” incompatible with Article 6 (see Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, § 302, 26 September 2023).

21.  In the present case, the Court does not see any reason to conclude that the domestic courts’ assessments were arbitrary or manifestly unreasonable. In particular, the Council of State decided on the basis of the relevant domestic law (see paragraph 2 above) as interpreted in the well-established domestic case-law (see, for example, Council of State, judgment no. 4305 of 16 July 2018, and order no. 2386 of 17 May 2019), pursuant to which the presence of a tattoo in a part of the body not covered by the uniform, even if in the course of removal, was a sufficient reason for exclusion from the competition, given that the conditions for eligibility had to be possessed at the moment of the expiry of the deadline for applying to the competition (see paragraph 15 above).

22.  Insofar as the applicants complained that a different approach could be identified in the case-law of the Council of State, notably judgment no. 5779 of 5 December 2013, which attributed relevance to the fact that the tattoo was being removed, the Court observes the following. The possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may also arise within the same court. That, in itself, cannot be considered contrary to the Convention (see Nejdet Şahin and Perihan Şahin v. Turkey, [GC], no. 13279/05, § 51, 20 October 2011).

23.  In the present case, the applicants limited themselves to pointing out the existence of one single conflicting decision of the Council of State, which, moreover, dated back to 2013. Accordingly, it cannot be said that there were “profound and long-standing differences” in the case-law, capable of undermining the principle of legal certainty (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 116, 29 November 2016).

24.  The Court further considers that simple divergences in the domestic case-law do not entail a discrimination within the meaning of Article 14 of the Convention (see, a contrario, Beian v. Romania, no. 30658/05, § 63, ECHR 2007-V (extracts)).

25.  Accordingly, the Court concludes that these complaints are manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

26.  As regards the applicants’ complaint that they were prevented from accessing the police and “lost their jobs”, the Court reiterates that no general right to employment or to the renewal of a fixed‑term contract, right of access to the civil service or right to choose a particular profession can be derived from Article 8 (see Guliyev v. Azerbaijan, no. 54588/13, § 40, 6 July 2023). However, restrictions imposed on access to a profession have been found to affect “private life” (see, for example, Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 47, ECHR 2004-VIII, and Bigaeva v. Greece, no. 26713/05, §§ 22-23, 28 May 2009).

27.  Employment-related disputes are not per se excluded from the scope of “private life” within the meaning of Article 8 of the Convention. There are some typical aspects of private life which may be affected in such disputes by dismissal, demotion, non-admission to a profession or other similarly unfavourable measures. There are two ways in which a private-life issue would usually arise in such a dispute: either because of the underlying reasons for the impugned measure (in that event the Court employs the reason-based approach) or – in certain cases – because of the consequences for private life (in that event the Court employs the consequence-based approach). If the consequence-based approach is at stake, the threshold of severity with respect to all the above-mentioned aspects assumes crucial importance. It is for the applicant to show convincingly that the threshold was attained in his or her case by presenting evidence substantiating consequences of the impugned measure. The Court will only accept that Article 8 is applicable where these consequences are very serious and affect his or her private life to a very significant degree (see Denisov v. Ukraine [GC], no. 76639/11, §§ 115‑16, 25 September 2018).

28.  In the present case, the Court considers that neither the reason-based nor the consequence-based approach lead to the conclusion that Article 8 is applicable.

29.  As regards the first approach, the Court notes that, being aware of the applicable rules concerning the causes for ineligibility (see paragraphs 2‑3 above), which they did not dispute as such, the applicants had voluntarily decided to undergo a laser treatment for removing the tattoos (see paragraph 5 above).Thus, it cannot be said that they were excluded from the competition on the basis of a manifestation of their “private life”.

30.  As regards the second approach, the Court observes that the applicants did not put forward, either before the Court or in the domestic proceedings, any specific personal circumstances indicating that the measure had had a serious impact on their private life. In particular, the applicants had been only provisionally admitted to the competition (see paragraph 8 above) and were therefore aware of the fact that they could be excluded following the outcome of the judicial proceedings. The Court therefore considers that the sole fact that the applicants chose, at their own risk, to pursue the competition and the training, cannot make this provision applicable to their case.

31.  Given that neither the reason for the applicants’ non-admission to the competition were linked to nor that the consequences of that measure affected their “private life” within the meaning of Article 8, the Court finds that this Article is not applicable. Therefore, the complaints must be dismissed as incompatible ratione materiae with the Convention pursuant to Article 35 §§ 3 (a) and 4.

32.  As regards the complaint under Article 1 of Protocol No. 1, the Court notes that, in the applicants’ view, the “possession” which had been unlawfully and disproportionately interfered with was the post as police officers, and salaries, that they had in the meanwhile obtained.

33.  However, the Court observes that the applicants had been only provisionally admitted to the competition, on the condition that their claims be upheld by the competent administrative courts (see paragraph 8 above).

34.  The Court reiterates that a conditional claim which lapses as a result of the non-fulfilment of the condition cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1 (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 172, ECHR 2012). Moreover, future income constitutes a “possession” only if the income has been earned or where an enforceable claim to it exists (see Denisov, cited above, § 137).

35.  The Court therefore concludes that the applicants did not have a “possession” within the meaning of Article 1 of Protocol No. 1.

36.  It follows that these complaints are incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 (a) and 4.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 10 October 2024.

 Liv Tigerstedt Lətif Hüseynov
 Deputy Registrar President

Appendix

List of cases:

No.

Application no.

Case name

Lodged on

Applicant
Year of Birth
Place of Residence
Nationality

Represented by

1.

17243/20

Di Nardo v. Italy

02/04/2020

Valeria DI NARDO
1987
Fondi
Italian

Giovanni ROMANO

2.

17287/20

Alberti v. Italy

10/04/2020

Sara ALBERTI
1992
Rome
Italian

Giovanni ROMANO