CEDH · CASELAW;CLIN;ENG — 3 septembre 2013

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Italy - 5376/11 Judgment 3.9.2013 [Section II] Article 1 of Protocol No. 1 Article 1 para. 1 of Protocol No. 1 Peaceful enjoyment of possessions Statutory intervention preventing re-assessment of compensation despite pending judicial proceedings: violation   Article 6 Civil proceedings Article 6-1 Fair hearing Statutory intervention preventing re-assessment of compensation despite pending judicial proceedings: violation   Article 46 Pilot judgment General measures Respondent State required to pay compensation as reassessed to persons entitled   Facts – The applicants or their deceased relatives had all been contaminated by the human immunodeficiency virus (HIV), hepatitis   B or hepatitis   C following blood transfusions or the administration of blood products. All received (or had received) compensation for the permanent damage sustained as a result of that contamination. The total allowance was made up of two parts: a fixed sum and a supplementary allowance (“the IIS”). Between 2005 and 2010 the issue of the IIS’s re-assessment was the subject of judicial debate. By emergency legislative decree no.   78/2010, the Government intervened in the question of the IIS’s re-assessment, indicating that the law was to be interpreted to the effect that it was impossible to adjust for inflation the amount corresponding to the IIS. In addition, they specified that measures taken by virtue of an enforceable decision, resulting in re-assessment of that amount, would cease to have effect from the date of the legislative decree’s entry into force. By judgment no.   293/2011, the Constitutional Court held that the relevant provisions of the legislative decree were contrary to the principle of equality and were therefore unconstitutional. In spite of that judgment, the applicants were unable to have their compensation re-assessed. Law Article   6 §   1: The issue of whether the IIS was subject to annual re-assessment in line with inflation had been at the centre of a complex judicial debate in which the State had been a party. Yet the enactment of legislative decree no.   78/2010 had definitively set the terms of the debate submitted to the courts, by providing an authentic interpretation of law no.   210/1992 in a way that was favourable to the State, since it specified, inter alia , that the disputed IIS could not be re-assessed. Even considering that the law of authentic interpretation in question was enacted in an area which was the object of a large-scale judicial dispute, it was indisputable that that law established criteria which determined the outcome of pending proceedings, rendering ineffective the favourable decisions obtained by certain applicants, entailing the interruption of execution of decisions which were favourable to them and rendering nugatory any possible appeals against decisions dismissing applications for adjustment of the IIS. Yet the materials of the case, including the Constitutional Court’s judgment no.   293/2011, did not indicate that the State, in enacting that legislative decree, was pursuing any other aim but the preservation of its own financial interests. This aim could not correspond to “compelling grounds of the general interest”, which, moreover, the respondent State had not relied upon. In addition, the Constitutional Court had held in its judgment that those same criteria were contrary to Article   3 of the Constitution. However, the principles laid down by legislative decree no.   78/2010 had continued to have effect in the applicants’ cases, since they had been unable to obtain re-assessment of the IIS even after the date on which the Constitutional Court’s judgment was published. In view of those considerations, the enactment of legislative decree no.   78/2010 had been in breach of the principle of the rule of law and the applicants’ right to a fair hearing, enshrined in Article   6 §   1 of the Convention. Conclusion : violation (unanimously). Article   1 of Protocol No.   1: Those applicants who had obtained a final domestic decision acknowledging their right to the adjustment in question had had it refused from the date of entry into force of legislative decree no.   78/2010 or from 2011. In respect of the other applicants, the decision recognising their right to re-assessment of the IIS had never been executed. They thus had a proprietary interest which constituted, if not a claim against the adverse party, at least a “legitimate expectation” of being able to obtain payment of the disputed sums, which consequently had the nature of a “possession”. In addition, the other applicants who were entitled to the allowance provided for by Law no.   210/1992 had also had a similar interest since at the latest publication of the Constitutional Court’s judgment no.   293/2011. The impugned legislative decree, by ruling on the merits of the issue in a final manner and interrupting the execution of decisions that were favourable to the applicants, had amounted to interference in the latter’s right to the peaceful enjoyment of their possessions. None of the applicants had benefited from re-assessment of the IIS, even after publication of the Constitutional Court’s judgment. The pathologies from which the applicants suffered or had suffered, six of them having died in the course of the proceedings, had to be taken into account in this context. Moreover, particular importance had to be attached to the fact that the IIS represented more than 90% of the total amount of the allowance paid to the applicants. In addition, this allowance was intended (or had been intended) to cover the health care costs of the applicants or of their deceased relatives and, as indicated in the medical report submitted by the applicants, the prognosis for their chances of survival and recovery was (or had been) strictly linked to receipt of the allowances. The enactment of legislative decree no.   78/2010 had therefore placed an “individual and excessive burden” on the applicants and the interference with their right to the peaceful enjoyment of their “possessions” had been disproportionate; the fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights had not been struck. Conclusion : violation (unanimously). The Court also concluded, unanimously, that there had been a violation of Article   14 of the Convention in conjunction with Article   1 of Protocol No.   1. Article 41: reserved. Article   46: The respondent State was required to set, within a period of six months from the date on which the Court’s judgment became final, a time-limit in which it undertook to guarantee, by appropriate legal and administrative measures, the effective and rapid realisation of the entitlements in question, particularly through the payment of the re-assessed IIS to any person entitled to the compensation provided for by Law no.   210/1992 from the date on which it had been granted to him or her, and irrespective of whether or not the individual had brought proceedings to obtain it. Examination of non-communicated applications having the same subject-matter as the present case was adjourned for one year.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes