Resolution CM/ ResDH (2011)120 [1]

Execution of the judgment of the European Court of Human Rights

Lombardi Vallauri against Italy

(Application No. 39128/05, judgment of 20/10/2009, final on 20 January 2010)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the lack of reasoning given for the decision of the Faculty Board of the Catholic University of Milan refusing to employ the applicant, a lecturer who had not been approved by the ecclesiastical authorities, as well as the fact that the administrative courts in their judgments did not address this lack of reasoning (violations of Article 10 and of Article 6§1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)120

Information on the measures taken to comply with the judgment in the case of

Lombardi Vallauri against Italy

Introductory case summary

This case concerns a breach of the applicant ’ s freedom of expression as he was given no reasons for the decision taken by the Faculty Board of the Catholic University of Milan not to consider his application for a teaching post in 1998 (violation of Article 10). It also concerns the failure to grant him access to a court given that the administrative courts to which the case was submitted refused to rule on the lack of reasoning in the decisions they handed down in 2001 and 2005 (violation of Article 6§1).

The decision of the Faculty Board was based on the fact that the Holy See had refused to grant the applicant the approval required for teaching in the Catholic university in question on the grounds that some of his views were “in clear opposition to Catholic doctrine”.

The European Court first noted that the Faculty Board had omitted to explain to the applicant how his views, which supposedly ran counter to Catholic doctrine, were reflected in his teaching and how they were liable to affect the University ’ s interests in dispensing teaching based on Catholic doctrine. With regard to the judicial review of the decision, the Court noted that the domestic courts had refused to rule on the fact that the Faculty Board had failed to explain to the applicant which of his opinions the Holy See authorities objected to. It also noted that, far from implying that the judicial authorities themselves should rule on the compatibility between the applicant ’ s views and Catholic doctrine, the fact of communicating these elements to the applicant would have made him aware of and given him the opportunity to challenge the alleged link between his opinions and his teaching. In conclusion, the Court considered that the University ’ s interest in dispensing teaching based on Catholic doctrine could not extend to impairing the very substance of the procedural guarantees afforded to the applicant by Article 10 of the Convention (§§47, 52 and 55 of the judgment) . The fact that there had been insufficient judicial review of the case led the Court to conclude that the applicant ’ s right of effective access to a court had also been violated.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

10 000 EUR

-

10 000 EUR

Paid on 22/04/2010

b) Individual measures

In the view of the Italian authorities, restitutio in integrum is not possible, as the post was given to another professor: the only form of reparation is represented by just satisfaction in respect of non-pecuniary damages, which was awarded by the European Court . Moreover, the applicant made no complaint before the Committee of Ministers and any suggestion of reopening the proceedings at issue would seem to run up against the principle of legal certainty to which the other party to the proceedings is entitled.

Therefore , no further individual measure appears to be necessary.

II. General measures

The Italian authorities observe that both the violations found by the European Court are the result of a wrongful application of the general requirement prescribed by Italian administrative law, pursuant to which any administrative decision has to be adequately reasoned. The authorities therefore consider that no legislative modification is needed and that a case-law approach would be the most appropriate general measure to avoid future similar violations. To this end, publication and appropriate dissemination are considered by the authorities to be necessary and sufficient.

The judgment has been published on the Internet site of the Court of Cassation, in the database on the case-law of the European Court of Human Rights. This website is widely used by all those who practice law in Italy : civil servants, lawyers, prosecutors and judges alike. It has been also extensively disseminated, together with an explanatory note, to the university concerned, to public and private institutions, and to the judicial authorities competent for this kind of cases.

III. Conclusions of the respondent state

The government considers that no individual measure was possible in this case, apart from the payment of the just satisfaction awarded to the applicant by the Court, that the general measures adopted will prevent similar violations and that Italy has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 14 September 2011 at the 1120th Meeting of the Ministers’ Deputies