Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30127/96

by Giacomo SCIORTINO

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 4 March 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 3 May 1993 by

Giacomo SCIORTINO against Italy and registered on 6 February 1996 under

file No. 30127/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian citizen, born in 1925 and currently

residing in Palermo.

The facts, as submitted by the applicant, may be summarized as

follows.

The applicant served in the administration of the Sicily Region

from 1945 to 1978, holding different posts.

The method and the basis of calculation of the pension to which

the applicant is entitled have been modified several times by a series

of regional laws.

According to Regional Law No. 7/1971 the applicant acquired the

right to a certain increase in salary and to a further biennial

increase amounting to 4% of his salary. Regional Law No. 30/1974

modified the previous one in that the length of service necessary to

obtain that increase in salary was raised from 20 to 23 years, which

involved a reduction in the applicant's pension. On the basis of

Regional Law No. 114/1979 the applicant was entitled to two biennial

salary increases and was deemed to have served for 32 years, 6 months

and 4 days. According to Regional Law No. 145/1980 the applicant's

pension was recalculated and increased. Further modifications in the

determination of the applicant's pension were made on the basis of

Regional Law No. 41/1985.

In January 1975 the applicant filed an application with the

Sicily Regional Administrative Court (RAC) seeking revocation of the

decree applying Regional Law No. 30/1974 to his case. As Regional Law

No. 145/1980, which interpreted the 1974 Law in accordance with the

demands of the applicant, had in the meantime entered into force, the

Sicily RAC on 24 October 1981 granted the applicant's claim regarding

the rights guaranteed to him by the previous Law No. 7/1971.

On July 1990 the applicant filed an application with the Court

of Audit seeking recognition and payment of the increase of pension

granted by Regional Law No. 41/1985. On 23 November 1993 the Court of

Audit admitted the claim and ordered that the Sicily Region had to pay

the applicant the increases of pension he was entitled to, the

revaluation of the amounts due and the statutory interest, accrued from

November 1985 to the date on which the applicant would actually receive

them.

In relation to the delays in complying with the decision of the

Court of Audit of 23 November 1993, the applicant filed "compliance"

proceedings with the Sicily RAC.

On 11 July 1997 the Sicily RAC granted the claim and ordered the

administration of the Region to comply fully with the above-mentioned

judgment within 60 days from the date when the decision would be served

or communicated to the applicant. The Sicily RAC also nominated a

special commissioner (commissario ad acta) who was to intervene if,

upon expiration of the 60 day-period, the administration of the Region

had not paid. The commissioner was empowered to take the necessary

measures to assure compliance with the decision within further 30 days

at the latest. Nevertheless the applicant does not seem to have

received these sums.

On 19 April 1994 the applicant lodged a further application with

the Court of Audit (No. 1025/94) claiming that Regional Laws No. 7/1971

and No. 145/1980 had been erroneously enforced and seeking a

recalculation of his pension. The date for the first hearing has not

been set and these proceedings are still pending.

COMPLAINTS

1. The applicant complains about the length of the proceedings still

pending before the Court of Audit following Application No. 1025/94.

2. The applicant complains that the Administration of the Sicily

Region has not paid him the sums of money he is entitled to pursuant

to the decision of the Court of Audit of 23 November 1993 and to the

decision of the Sicily RAC of 11 July 1997.

3. The applicant complains that he does not receive the increased

pension he is entitled to according to the relevant Sicily regional

laws. He claims that the new laws modifying certain criteria on which

the pension is calculated, and which are applicable also to retired

staff, have not been applied to his case.

THE LAW

1. The applicant complains about the length of the proceedings still

pending before the Court of Audit following Application No. 1025/94.

The applicant further complains that the Administration of the

Sicily Region has not paid him the sums he is entitled to pursuant to

the decision of the Court of Audit of 23 November 1993 and to the

decision of the Sicily RAC of 11 July 1997.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of these complaints and that it is

therefore necessary, in accordance with Rule 48 para. (2) of the Rules

of Procedure, to give notice of these complaints to the respondent

Government.

2. The applicant also complains that he does not receive the

increased pension which he claims he is entitled to according to the

relevant Sicily regional laws. He claims that the new laws modifying

certain criteria on which the pension is calculated and which are

applicable also to retired staff, have not been applied to his case.

The Commission first notes that proceedings in relation to this

matter are still pending before the Italian courts. However, even

assuming that the applicant could be considered as having exhausted the

domestic remedies according to the requirements of Article 26 (Art. 26)

of the Convention, the applicant's complaint would have to be rejected

for the following reasons.

The Commission recalls that, according to its constant case-law,

the right to a pension of a particular amount is not guaranteed by the

Convention (cf. for example Muller v. Austria, Comm. Report 1.10.75,

D.R. 3, p. 25, para. 27 and No. 12264/86, Dec. 13.7.88, D.R. 57,

p. 132). However, Article 1 of Protocol No. 1 (P1-1) may guarantee the

right to derive benefits from social security schemes to which a person

has paid contributions (cf also No. 10671/83, Dec. 4.3.85, D.R. 42,

p. 229).

The Commission notes that the applicant relies on a series of

regional laws in support of his claim to increased pension rights. The

Commission does not find it established that the applicant has been

deprived by the authorities of a property right which he previously had

(cf. mutatis mutandis No. 12264/86, Dec. 13.7.88, D.R. 57, p. 133) or

that he was deprived of the very essence of his right to derive benefit

from the contributory social security scheme which applied to him. It

follows that this part of the complaint is to be considered manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission

DECIDES TO ADJOURN the examination of the applicant's complaints

concerning the length of the proceedings and the alleged non-

compliance by the administration of the Sicily Region with two

court decision, resulting in non-payment of sums to which he is

entitled;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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SCIORTINO v. ITALY

SCIORTINO v. ITALY

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