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, pr e sident, Egidijus Kūris , Jon Fridrik Kjølbro , ju d ges, 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 t wo 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 tro o ps of the French army during the pass a g e 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 f o r 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granted a lump sum in respect of the physical damage suffered and a pension consisting of a monthly allowance which was revoked when the applicants were considered to have physically recovered.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 f o r 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. I n 1994 their applications were turned down.

10. In 1997 the applicants appealed against the ministerial decision s to the Court of Audit of Lazio which, in 2004, dismissed their appeals finding that the application seeking compensation f o r 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 f o r 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 con flic t of jurisprudence , opting in favour of the admissibility of application s 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 f o r non-pecuniary damage in cases like theirs , the respondent Government had c reated a con flict 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 examine d under Articles 6 and 13 of the Convention.

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 i n 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 putt ing 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, t he 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 applicant s requested, that there was a positive obligation o n 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 implemen t 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 con flict 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 re solving 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 Campos Helen Keller              Deputy Registrar President

Appe ndix

List of applicants

N o .

Firstname LASTNAME

Birth year

Place of residence

Virginia SEPE

1931Oxon

Maria Immacolata DI LETA

1949Campodimele

Gilda DI LETA

1951Fondi

Vincenza DI LETA

1953Campodimele

Erminia DI LETA

1955Campodimele

Franco DI LETA

1958Campodimele

Assunta DI LETA

1960Fondi

Rita DI LETA

1962Campodimele

Giuseppina DI LETA

1964Campodimele