SECOND SECTION
DECISION
Application no. 36167/07
SEPE and DI LETA
against Italy
The European Court of Human Rights (Second Section), sitting on 16 September 2014 as a Committee composed of:
Helen Keller, president,
Egidijus Kūris,
Jon Fridrik Kjølbro, judges,
and Abel Campos, Deputy Section Registrar,
Having regard to the above application lodged on 10 August 2007,
Having deliberated, decides as follows:
THE FACTS
1. The application was lodged, in August 2007, by two applicants Mrs V. Sepe and Mrs A. Grossi. Mrs Grossi died shortly after Mrs Grossi’s heirs manifested their intention to continue the proceedings. A list of the applicants is set out in the appendix.
2. The applicants are Italian nationals and are represented before the Court by Ms M. Messina, a lawyer practising in Rome.
3. The facts of the case, as submitted by the applicants, may be summarised as follows.
4. In 1944 during the Second World War the original applicants suffered sexual violence at the hands of soldiers of the Moroccan colonial troops of the French army during the passage of the allied forces in the area of Ciociaria, in central Italy.
5. In 1950, following the end of the conflict, the applicants lodged an application with the Ministry of the Treasury pursuant to Law no. 648/1950, Law no. 313/1968 and D.P.R. 915/1978 (concerning war pensions), seeking compensation for the damages suffered and the award of a war pension.
6. The above-mentioned laws did not envisage compensation for non‑pecuniary damage but limited it to the physical damage suffered.
7. The applicants were granted a lump sum in respect of the physical damage suffered and a pension consisting of a monthly allowance which was revoked when the applicants were considered to have physically recovered.
8. In 1987 the Constitutional Court delivered a judgment by which it declared unconstitutional the provisions of the laws regulating the award of war pensions (Law no. 648/1950, Law no. 313/1968 and D.P.R. 915/1978) insofar as they precluded compensation for non-pecuniary damages caused by events which occurred during a conflict.
9. In 1989 the applicants applied to the Ministry of the Treasury in order to seek compensation for non-pecuniary damage suffered. In 1994 their applications were turned down.
10. In 1997 the applicants appealed against the ministerial decisions to the Court of Audit of Lazio which, in 2004, dismissed their appeals finding that the application seeking compensation for non-pecuniary damage was time-barred.
11. Their further appeal to the first section of the Central Appeal Court of Audit was unsuccessful and the decisions became final in February 2007.
12. At the beginning of 2007 the second section of the Central Appeal Court of Audit delivered several judgments in which it found that applications for compensation for non-pecuniary damage (lodged after the judgment of the Constitutional Court) ought not to be considered time-barred. Such decisions conflicted with the jurisprudence of the first section of the main Court of Appeal.
13. In July 2007 the Court of Audit, sitting as a full court, tackled the conflict of jurisprudence, opting in favour of the admissibility of applications for compensation of non-pecuniary damage.
COMPLAINTS
14. Invoking Articles 1, 2, 6 and 13 of the Convention the applicants claimed that by not adopting a law (following the judgment of the Constitutional Court) regulating compensation for non-pecuniary damage in cases like theirs, the respondent Government had created a conflict of jurisprudence, depriving them of their right to a fair trial and to an effective remedy. They also complain about the fairness of their proceedings generally.
THE LAW
15. The application should be examined under Articles 6 and 13 of the Convention.
16. The Court reiterates at the outset that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see, ex multis, Brualla Gómez de la Torre v. Spain, no. 26737/95, § 31, 19 December 1997).
17. It is not the Court’s role to compare different decisions of national courts, even if given in apparently similar proceedings; it must respect the independence of those courts (see, ex multis, Gregório de Andrade v. Portugal, no. 41537/02, § 36, 14 November 2006).
18. The Court notes that the requirements of legal certainty and the protection of the confidence of the public do not confer an acquired right to consistency of case-law (see Unédic v. France, no. 20153/04 § 74, 18 December 2008). Case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement (see Atanasovski v. “the Former Yugoslav Republic of Macedonia”, no. 36815/03, § 38, 14 January 2010).
19. Furthermore, individual petition to the Court cannot be used as a means of dealing with or eliminating conflicts of case-law that may arise in domestic law or as a review mechanism for rectifying inconsistencies in the decisions of the different domestic courts (Nejdet Şahin and Perihan Şahin v. Turkey, (GC), 13279/05, § 95, 20 October 2011).
20. The Court has been called upon to give judgment in respect of conflicting decisions within a single court of appeal (see Tudor Tudor v. Romania, no. 21911/03, 24 March 2009). In addition to the “profound and long‑standing” nature of the divergences at issue, the legal uncertainty resulting from the inconsistency in the practice of the courts concerned and the lack of machinery for resolving the conflicting decisions were also considered to be in breach of the right to a fair trial (see Tudor Tudor, cited above, §§ 30-32).
21. In this regard the Court has reiterated on many occasions the importance of putting mechanisms in place to ensure consistency in court practice and uniformity of the courts’ case-law (see Schwarzkopf and Taussik v. the Czech Republic (dec.), no. 42162/02, 2 December 2008).
22. Turning to the present case, the Court cannot fail to be sympathetic to the applicants for their experience and the perceived injustice they suffered following the change in the jurisprudence of the Court of Audit. Nonetheless, it cannot uphold their application for the following reasons.
23. First, the Court notes that following the judgment of the Constitutional Court there was no obligation on the part of the respondent Government to enact a law which clarified the consequences of such judgments in relation to the applicable laws. The Court is not prepared to find, as the applicants requested, that there was a positive obligation on the authorities in that sense. The provisions targeted by the Constitutional Court’s judgment were automatically inapplicable and the domestic courts were called upon to implement the findings of the judgment. It is not the Court’s role to question the interpretation of the domestic law by the national courts (see, for example, Ādamsons v. Latvia, no. 3669/03, § 118, 24 June 2008).
24. Second, the Court observes that the conflict of jurisprudence in question lasted only a few months, as the change in the jurisprudence (which was then upheld by the Court of Audit sitting as a full court) took place in the beginning of 2007 and the judgment resolving the conflict was delivered in July 2007.
25. Consequently the Court finds that the mechanism in place to ensure consistency in court practice and uniformity of the courts’ case-law proved timely and effective.
26. Finally, the Court notes that the remainder of the applicants’ complaints concerning the fairness and the effectiveness of the proceedings instituted by them are unsubstantiated and unsupported by the material submitted.
27. In the light of the above the application must be declared inadmissible as manifestly ill-founded under article 35 §§ 3 and 4 of the Convention on the ground that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
For these reasons, the Court unanimously
Declares the application inadmissible.
Abel CamposHelen Keller
Deputy RegistrarPresident
Appendix
List of applicants
No.
Firstname LASTNAME
Birth year
Place of residence
Virginia SEPE
1931
Oxon
Maria Immacolata DI LETA
1949
Campodimele
Gilda DI LETA
1951
Fondi
Vincenza DI LETA
1953
Campodimele
Erminia DI LETA
1955
Campodimele
Franco DI LETA
1958
Campodimele
Assunta DI LETA
1960
Fondi
Rita DI LETA
1962
Campodimele
Giuseppina DI LETA
1964
Campodimele
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