PARTLY DISSENTING OPINION OF JUDGE WOJTYCZEK

1. I do not share the view of my colleagues that the present case should have been examined primarily from the viewpoint of Article 6. In my view, that provision does not prohibit changes to the substantive legal rules applicable in judicial proceedings after those proceedings have been started. It has thus not been violated. The case should have been examined first and foremost from the viewpoint of Article 1 of Protocol No. 1, which protects possessions against arbitrary changes to substantive legal rules. I agree with the view of all the applicants that this last provision has been violated in their case.

2. The Italian legislature passed legislation affecting the remuneration of a class of civil servants. The changes pertain to substantive rules governing the legal relationships between individuals and public bodies. The new rules apply irrespective of whether the persons concerned initiated judicial proceedings or not. Moreover, as in the case of Crash 2000 OOD and Others v. Bulgaria (( dec. ), no. 49893/07, § 84, 17 December 2013 ) , t hey “did not specifically target any particular pending judicial proceedings” .

I note in this context that all the applicants in the instant case were in exactly the same position in this regard. All faced the same burden, which was declared disproportionate in respect of those who had initiated judicial proceedings before the “enactment” of the law in question, and was considered insignificant (as their complaints were found to be manifestly ill ‑ founded) in respect of those who had not initiated such proceedings before the “enactment” of the law. In the absence of any explanations in this regard, it is difficult to understand the approach adopted. The judgment differentiates between persons who are in identical legal positions and who should therefore be treated identically. This part of the judgment appears arbitrary and fundamentally unjust.

Moreover, the majority refer to the date of “enactment” as the crucial date. No specific day is mentioned. The enactment of legislation is a long process which starts with the introduction of a bill and ends with the entry into force of the legislative provisions. It is not clear which date is considered by the majority as the date of enactment. Is it the date of the final vote in Parliament, the day of signature of the promulgation decree by the President of the Republic, the day of publication of the law in the official journal, or the day the impugned provisions entered into force?

3. The impugned legislation affects the substantive interests of the applicants. Those interests are protected as possessions within the meaning of Article 1 of Protocol No. 1. In order to determine whether the interference is compatible with this provision, it is necessary to assess its proportionality. For this purpose the Court has to identify and balance all the various interests which collide in this case. All of these are substantive interests. They are fully covered by Article 1 of Protocol No. 1 and there is no need to resort to Article 6. The latter provision adds no other interests to the balancing exercise.

The balancing of substantive-law interests determines the outcome of the case. As a result of this process, one can formulate the following general principle: a party to a civil-law relationship governed by Article 1 of Protocol No. 1 should not abuse its sovereign powers vis-à-vis the other party to this relationship. There is no need to resort to Article 6 to achieve this protection against changes in substantive law.

4. The first sentence of Article 6 is worded as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The provision guarantees judicial protection and a fair and public trial. In a fair trial the judge applies the applicable legal rules, including substantive legal rules. The substantive rules applicable to a legal relationship may be changed during its legal existence. Exceptionally they may even be changed with retroactive effect. The Court has said correctly in the past that “ Article 6 § 1 cannot be interpreted as preventing any interference by the authorities with pending legal proceedings to which they are a party” (see National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom , 23 October 1997, § 112, Reports of Judgments and Decisions 1997 ‑ VII ).

Changes to the substantive rules applicable to a legal relationship can (“can” in the sense of a factual possibility – even if they ought not) be unjust but this does not affect the fairness of the trial as such. The fairness of a trial will depend upon other considerations. Article 6 affords procedural protection and formal guarantees but does not protect against changes to the substantive law applicable to legal relationships and thus, as a result, also applicable to judicial disputes concerning the relevant legal relationships. Protection against unjust substantive legislation is secured by substantive provisions of the Convention.

5. In the view of the majority, the Italian legislation influences the outcome of judicial proceedings. The outcome of the proceedings is the content of a judicial decision to be rendered in a judicial procedure concerning a specific substantive-law issue (the object of the proceedings), on the legal basis of specific substantive-law provisions. In the instant case, the State indeed intervened for the purpose of modifying the content of the substantive relationship between itself and the individuals concerned, irrespective of whether the persons concerned had initiated judicial proceedings. It does not make sense to say that the legislation interferes with the outcome of the proceedings, as the subsequent proceedings are different proceedings: they have a different legal basis in (new) substantive law and a different object. To cut a long story short: the State is interfering here not with proceedings but with substantive legal relationships.

Either a change in substantive legislation is compatible with the substantive provisions, and therefore the outcome of the proceedings under the new rules is acceptable from the viewpoint of the Convention, or it is not compatible with the substantive provisions, and therefore the outcome of the proceedings under the new rules is not acceptable under the Convention. It is difficult to imagine a situation in which a change in substantive legislation would be compatible with substantive Convention provisions but would – at the same time – be incompatible with Article 6.

6. The majority invoke the case of Stran Greek Refineries and Stratis Andreadis v. Greece (9 December 1994, Series A no. 301 ‑ B) as the point of departure of the case-law protecting judicial proceedings against legislation influencing their outcome. In that case the State indeed interfered with judicial proceedings by trying to change the adjudicating body by redefining its jurisdiction. Later, the concept of “legislation influencing the outcome of judicial proceedings” was extended – without any deeper reflection or explanations – to substantive legislation (see, for instance, the case of Zielinski and Pradal and Gonzalez and Others v. France ( [GC], nos. 24846/94 and 9 others, ECHR 1999 ‑ VII ). Yet, as explained above, there is a fundamental difference between changes in procedural and substantive rules. It does not appear legally correct to overextend the protection of Article 6 to changes in substantive law.

The effect of the approach is that persons who are affected by changes to substantive laws benefit from dual protection under Article 6 and Article 1 of Protocol No. 1 provided that they have initiated judicial proceedings against another party. This fact of initiating judicial proceedings results in reinforced protection and, sometimes, in immunity from changes in legislation, whereas persons who are exactly in the same situation but who initiated litigation after the legislation entered into force (or was “enacted”, whatever that may mean) do not benefit from such reinforced protection. In the instant case, those persons were denied any protection. Why this moment of initiating judicial proceedings is considered so important for substantive protection remains a mystery. In my view, it is irrelevant. The price to be paid for this approach is that Article 6 narrows the legal perspective and may hide the most fundamental substantive issues at stake so effectively that it undermines the protection afforded under Article 1 of Protocol No 1.

The paradoxical message from this case-law is the following: if you wish to enjoy enhanced protection against adverse changes in legislation regulating your substantive legal relationship with public bodies, you should initiate judicial proceedings. Starting litigation triggers reinforced protection of existing legal positions.

7. I regret that the reasoning of the instant judgment is so succinct and fails to address the fundamental legal issues which the case raises. The final result is intellectual confusion and acute injustice in respect of two applicants. It is more than high time to revisit the whole approach in respect of protection – to be provided by Article 6 – against changes in substantive legislation.

Appendix

List of cases

No.

Application no.

Lodged on

Applicant

Date of Birth

Place of Residence

Represented by

Notes

Pecuniary Damages

29483/11

05/05/2011

Rosaria CICERO

27/06/1966

Messine

Giovanni ROMANO

On 22 September 2005 the court of Messina (judgment no. 2824/05) recognised the full length of service completed by the applicant within local government authorities and ordered the Ministry of Education to pay the difference between the salary at the time of the transfer and the salary due on the basis of the full length of service.

The Ministry appealed against that judgment. On 6 July 2010 the court of Appeal of Messina (judgment no. 489/10) allowed the Ministry ’ s appeal and reversed the lower court judgment relying on Law no. 266 of 2005 and Constitutional Court judgments nos. 234 of 2007 and 311 of 2009.

EUR 4,284 (four thousand two hundred and eighty-four euros)

33534/11

28/05/2011

1) Antonino BOLIGNARI

05/12/1953

Florence

2) Elisabetta DURO

11/09/1946

Scandicci

3) Narcisa FEDERICI

26/02/1951

Scandicci

4) Sandra GREMOLI

21/02/1965

Scandicci

5) Sonia PICCHI

13/07/1965

Florence

6) Carmela VERSACI

01/01/1941

Scandicci

7) Claudia VILLAREALE

16/04/1955

Florence

Isacco SULLAM

On 30 December 2003 the court of Florence (judgment no. 1586/2003) recognised the full length of service completed by the applicants within local government authorities and ordered the Ministry of Education to pay the difference between the salary at the time of the transfer and the salary due on the basis of their full length of service.

On 24 May 2005 the court of Appeal of Florence dismissed the Ministry ’ s appeal against the lower court judgment (judgment no. 811/2005).

On 30 November 2010 the Court of Cassation (judgment no. 24215/10) reversed the lower courts judgments relying on Law no. 266 of 2005 and Constitutional Court judgments nos. 234 of 2007 and 311 of 2009.

1) EUR 19,820 (nineteen thousand eight hundred and twenty euros)

2) EUR 30,462 (thirty thousand four hundred and sixty-two euros)

3) EUR 32,542 (thirty-two thousand five hundred and forty-two euros)

4) EUR 10,866 (ten thousand eight hundred and sixty-six euros)

5) EUR 19,796 (nineteen thousand seven hundred and ninety-six euros)

6) EUR 15, 336 (fifteen thousand three hundred and thirty-six euros)

7) EUR 15,478 (fifteen thousand four hundred and seventy-eight euros)

69172/11

26/10/2011

1) Nicola DI GIORGIO

13/01/1953

Orta di Atella

2) Salvatore LIONELLO

18/08/1945

Orta di Atella

3) Salvatore INDACO

20/12/1954

Orta di Atella

4) Chiara LANZANO

07/10/1960

Orta di Atella

5) Salvatore SANTILLO

04/02/1953

Orta di Atella

6) Angela MOZZILLO

31/01/1955

Orta di Atella

7) Nicola DI PALMA

30/10/1949

Sant ’ Arpino

Pasquale BIONDI

In 2002 the applicants lodged a claim at the court of Santa Maria Capua Vetere to have their full length of service completed within local government authorities recognised and their salary adjusted accordingly. The applicants sought also payment from the Ministry of Education for any accrued salary difference. In the public hearing held on 28 April 2010 the court (judgment no. 3438/2010) dismissed the applicants claims relying on Law no. 266 of 2005 and Constitutional Court judgments nos. 234 of 2007 and 311 of 2009.

1) EUR 13,306 (thirteen thousand three hundred and six euros)

2) EUR 10,590 (ten thousand five hundred and ninety euros)

3) EUR 9,077 (nine thousand and seventy-seven euros)

4) EUR 2,462 (two thousand four hundred and sixty-two euros)

5) EUR 11,995 (eleven thousand nine hundred and ninety-five euros)

6) EUR 11,359 (eleven thousand three hundred and fifty-nine euros)

7) EUR 11,359 (eleven thousand three hundred and fifty-nine euros)

13376/12

02/03/2012

1) Francesco GRECI

30/10/1945

Rome

2) Loredana GIORGI

27/02/1961

Rome

Giovanni ROMANO

In 2005 the applicants commenced proceedings against the Ministry of Education to have their full length of service completed within local government authorities recognised and their salary adjusted accordingly. In addition the applicants sought payment from the Ministry for any accrued salary difference. Both applicants ’ claims had been dismissed at first instance on the basis of the Law No. 266 of 2005.

In separate sets of proceedings the court of Appeal of Rome (judgment nos. 290/2011 and 4073/2011) upheld the lower courts ’ judgments relying on Law no. 266 of 2005 and Constitutional Court judgments nos. 234 of 2007 and 311 of 2009. The judgments had been delivered on 3 February 2011 and 23 May 2011 respectively.

1) EUR 23,395 (twenty-three thousand three hundred and ninety-five euros)

2) EUR 17,583 (seventeen thousand five hundred and eighty-three euros)

14186/12

0 6/03/2012

Biagio FICORELLA

26/02/1949

Palestrina

Giovanni ROMANO

In the hearing of 19 April 2007 the court of Tivoli (judgment no. 872/2007) recognised the full length of service completed by the applicant within local government authorities and ordered the Ministry of Education to pay the difference between the salary at the time of the transfer and the salary due on the basis of the full length of service. On 1 June 2011 the court of Appeal of Rome (judgment no. 3588/11) allowed the Ministry ’ s appeal relying on the Law No. 266 of 2005 and the Constitutional Court judgments nos. 234 of 2007 and 311 of 2009.

Maria Assunta CIRELLI

15/08/1950

Rome

On 23 October 2007 the court of Rome (judgment no. 18367/2007) dismissed the applicant ’ s claim to have her full length of service completed within local government authorities recognised and her salary adjusted accordingly. Likewise the court dismissed her claim for payment of any salary difference. On 3 February 2011 the court of Appeal of Rome (judgment no. 290/2011) upheld the lower court judgment relying on Law no. 266 of 2005 and Constitutional Court judgments nos. 234 of 2007 and 311 of 2009.

EUR 3,315 (three thousand three hundred and fifteen euros)

Fiammetta DI FRANCESCANTONIO

26/08/1953

Colleferro

In 2006 the applicant commenced proceedings against the Ministry of Education to have her full length of service completed within local government authorities recognised and her salary adjusted accordingly. In addition she sought payment from the Ministry for any accrued salary difference. On 23 August 2010 the court of Velletri (judgment no. 1880/10) dismissed the applicant ’ s claim relying on Law no. 266 of 2005 and Constitutional Court judgments nos. 234 of 2007 and 311 of 2009.