Published on 16 January 2023
FIRST SECTION
Application no. 38127/22
Gian Luca ZAFFERANI against San Marino
and 6 other applications
(see list appended)
communicated on 14 December 2022
SUBJECT MATTER OF THE CASE
The applications concern a legislative intervention affecting the retrospective adjustment of the applicants’ careers.
The applicants were enrolled in the military, via special procedures, on dates between 2006 and 2008. According to the applicants, under law no. 99 of 1997, their definitive enrolment was to be confirmed following a successful one-year probationary period, the latter also providing for the relevant career advancement. Nevertheless, their enrolment only became definitive by a deliberation of Parliament of 18 January 2016, in the light of Article 63 of law no. 189 of 2015, attributing to them a “Scale 5” career category.
Immediately thereafter, on dates between 28 January and 2 February 2016 the applicants asked the State’s Human Resources department to calculate the retrospective adjustment of their careers as per law no. 189 of 2015. According to acknowledgment of receipt forms given to the applicants, those dates constituted the start of the procedure, and its duration was to be counted since then. However, no reply ensued.
By legislative decree no. 88 of 25 July 2016, the legislator, bearing in mind the needs of the State and considering that the law needed clarifying, specified that for the purposes of Article 63 of law no. 189 of 2015 any economic benefits derived from the retrospective adjustment of careers, could only start to run as of 1 February 2016, excluding any arrears or sums paid up to that date.
The applicants’ further requests to the Directorate of Public Services, lodged in October 2016, were rejected in November 2018 on the basis of legislative decree no. 88 of 2016. Consequently, each of the applicants alleged that they had suffered losses of between approximately 25,000 to 50,000 euros.
On 21 March 2019 the applicants unsuccessfully lodged administrative proceedings challenging legislative decree no. 88 of 2016 and the impact it had on their property rights. The first-instance judge (CoL – Commissario della Legge) considered that the calculation was in line with the new law, which was a lex specialis derogate legi generali. The appeal judgment definitely rejecting their claims, which emphasised that the applicants had not been employed by means of a public competition but through an ad hoc process, was notified to the applicants on 4 April 2022.
Meanwhile the applicants had also asked for the recusal of the CoL, the latter having expressed an opinion on the constitutional matters raised when rejecting their request for referral to the constitutional jurisdictions. Their challenge was dismissed by the Judge for Extraordinary Remedies, who held that the CoL – who had the duty to decide on the referral request – had examined the question raised, namely that the applicants had suffered a legislative intervention (justification of which was being challenged) in pending proceedings which had started in January/February 2016 before the enactment of the impugned legislative decree in July 2016.
The applicants complain under Article 6 § 1 of the Convention about a legislative intervention by the State in pending proceedings to ensure that the outcome was favourable to it. For the same reasons, relying on Article 1 of Protocol No. 1, they consider that there has been an unlawful and disproportionate interference with their legitimate expectations, which moreover created a difference of treatment between those who had been enrolled under special procedures and other military personnel enrolled under public examinations.
QUESTIONS TO THE PARTIES
1. In the light of the San Marino legal framework, can it be said that the proceedings in the present cases started in January/February 2016 when the applicants first lodged their claims with the State (see OGIS-Institut Stanislas, OGEC Saint-Pie X and Blanche de Castille and Others v. France, nos. 42219/98 and 54563/00, § 62, 27 May 2004, and Azzopardi and Others v. Malta (dec.), no. 14671/17, § 44, 12 March 2019) and therefore that the legislative intervention occurred pending proceedings (see, a contrario, Organisation nationale des syndicats d’infirmiers libéraux (ONSIL) v. France, no. 39971/98, 29 August 2000)?
2. If so, did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was there interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute? If so, was the interference based on compelling grounds of general interest? Lastly, was the interference compatible with the principles of legal certainty (see Zielinski and Pradal and Gonzalez and Others v. France [GC], nos. 24846/94 and 34165/96 to 34173/96, ECHR 1999-VII, Scordino v. Italy (no. 1) [GC], no. 36813/97, ECHR 2006-V; and more recently, albeit in a criminal context, Vegotex International S.A. v. Belgium [GC], no. 49812/09, 3 November 2022)?
3. Alternatively, was the legislative intervention intended to prevent proceedings being opened and to circumvent the rule of law contrary to Article 6 § 1 of the Convention (see Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 70 and 72, ECHR 2004-III)?
4. Did the applicants have a possession in the form of a legitimate expectation? If so, did the application of legislative decree no. 88 of 2016, constitute interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? Was that interference in the public interest and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1? Did it impose an excessive individual burden on the applicants? (see, mutatis mutandis, Draon v. France [GC], no. 1513/03, 6 October 2005, and Maurice v. France [GC], no. 11810/03, ECHR 2005‑IX).
APPENDIX
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
1.
38127/22
Zafferani v. San Marino
01/08/2022
Gian Luca ZAFFERANI
1985
Domagnano
San Marinese
Elena ZAGHINI
2.
38131/22
Volpinari v. San Marino
01/08/2022
Daniele VOLPINARI
1983
San Marino
San Marinese
Rossano FABBRI
3.
38138/22
Montironi v. San Marino
01/08/2022
Gabriele MONTIRONI
1984
Serravalle
San Marinese
Elena ZAGHINI
4.
38144/22
Ghiotti v. San Marino
01/08/2022
Davide GHIOTTI
1985
Dogana
San Marinese
Rossano FABBRI
5.
38147/22
Ceccoli v. San Marino
01/08/2022
Enrico CECCOLI
1983
Fiorentino
San Marinese
Elena ZAGHINI
6.
38238/22
Palma v. San Marino
01/08/2022
Alessandro PALMA
1989
Fiorentino
San Marinese
Rossano FABBRI
7.
38660/22
Tordi v. San Marino
01/08/2022
Maurizio TORDI
1988
Domagnano
San Marinese
Elena ZAGHINI