FIFTH SECTION
CASE OF ZAFFERANI AND OTHERS v. SAN MARINO
(Applications nos. 38127/22 and 6 others – see appended list)
 
 
JUDGMENT
 
Art 6 § 1 (civil) • Fair hearing • Legislative intervention through the enactment and immediate retrospective application of a new law to pending proceedings, regarding the applicants’ career reconstruction for the purposes of their employment in the military, definitively modifying their outcome in the State’s favour • Absence of sufficient compelling reasons capable of outweighing the dangers inherent in the use of retrospective legislation
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
9 January 2025
 
FINAL
 
09/04/2025
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zafferani and Others v. San Marino,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Mattias Guyomar, President,
 María Elósegui,
 Armen Harutyunyan,
 Stéphanie Mourou-Vikström,
 Gilberto Felici,
 Kateřina Šimáčková,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the applications (nos. 38127/22 and 6 others, see appended list) against the Republic of San Marino lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), on 1 August 2022, by seven nationals of San Marino (“the applicants”), whose details are indicated in the appended table;
the decision to give notice to the Government of San Marino (“the Government”) of the complaints concerning Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention and to declare inadmissible the remainder of the applications;
the parties’ observations;
Having deliberated in private on 3 December 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns a legislative intervention affecting the outcome of proceedings regarding the applicants’ career reconstruction for the purposes of their employment in the military. THE FACTS
2. The applicants were represented by Ms E. Zaghini and earlier some of the applicants had been represented by Mr R. Fabbri, both lawyers practising in Borgo Maggiore at the time, as indicated in the appended table. 3. The Government were represented by their Agent, Ms S. Bernardi, Representative of San Marino to the European Court of Human Rights. 4. The facts of the case may be summarised as follows. THE CIRCUMSTANCES OF THE CASE
5. As of different dates between 2006 and 2008 the applicants were officers, originally employed on a temporary basis, of the Uniformed Unit of the Fortress Guard (Nucleo Uniformato della Guardia di Rocca), a military body of San Marino. In the applicants’ view their enrolment should have become definite following a successful one-year probationary period according to law no. 132/1987 (Regulations of the Uniformed Unit of the Fortress Guard) as amended by law no. 99/1997 (Amendment to the Regulations of the Uniformed Unit of the Fortress Guard), which also provided for career advancements (see paragraph 20 below). 6. Nevertheless, their employment was periodically extended until 18 January 2016 when the Parliament (Consiglio Grande e Generale), by decision no. 8 of 18 January 2016, acknowledged (presa d’atto) their permanent recruitment pursuant to Article 63 (1) of law no. 189/2015 (Budget of the State and State Entities for the 2016 tax year and multi-year budgets for the period 2016/2018) (see paragraph 22 below) attributing to them a “Scale 5” career category. 7. Following that decision, on dates between 28 January and 2 February 2016, the applicants submitted to the Public Administration Personnel Management Office (‘PAPMO’), a request for the reconstruction of their career, which would have an impact on their salary and entitlements. According to acknowledgment of receipt forms given to the applicants, those dates constituted the date from which the deadline for the conclusion of proceedings started to run (“data da cui decorre il termine per la conclusione del procedimento”). The forms also indicated that the relevant remedies were those provided under law no. 68/1989 (proceedings before the administrative courts). No reply to their requests ensued at the time. 8. By legislative Delegated Decree no. 88 of 25 July 2016 (Provisions for the recruitment of Police Officers and for the verification of psychophysical fitness to serve in the Gendarmerie Corps and in the Uniformed Unit of the Fortress Guard) (hereinafter ‘law no. 88/2016’, see paragraph 23 below), the legislator, bearing in mind the need and urgency to regulate employment in the Police and other forces in the light of the needs of the State, specified under its Article 1 that for the purposes of persons recruited pursuant to Article 63 of law no. 189/2015 any economic benefits derived from the retrospective adjustment of careers, could only start to run as of 1 February 2016, without payment of arrears and without the payment by them of the statutory withholding taxes referred to in Article 54 of law no. 41/1972 on the sums not paid to them. 9. Following the enactment of law no. 88/2016, the applicants career reconstruction was carried out by the PAPMO pursuant to Article 1 of law no. 88/2016. Consequently, each of the applicants alleged to have suffered losses of around 25,000 euros (EUR) or more.
10.  ln 2018 the applicants asked the Minister of Foreign and Political Affairs and the Director General of Civil Service to intervene in order to obtain also the payment of arrears, in application of the ordinary provisions. 11. On 7 November 2018 the Director of Civil Service and the Director of Human Resources, confirmed the compliance of the career reconstruction adopted by the PAPMO in line with law no. 88/2016, noting that the applicants had not been employed under the ordinary procedure envisaged under law no. 132/1987 as amended by law no. 99/1997. 12. On 20 March 2019, the applicants filed an application before the Judge of First Instance (‘CoL’, Commissario della Legge), exercising administrative jurisdiction, seeking the annulment of the decision of 7 November 2018. They complained about the unlawfulness of their career reconstruction which had been done in line with Article 1 of law no. 88/2016 (see paragraph 23 below) arguing that the latter law was unconstitutional, since it conflicted with Articles 4 (principle of equality) and 9 (principle of equitable remuneration) of the Declaration of the Citizens’ Rights. Therefore, they asked the CoL to refer the matter to the Constitutional Court (Collegio Garante della Costituzionalità delle Norme). On 9 December 2019, the CoL dismissed the referral request, considering it manifestly ill-founded, it being legitimate to apply different conditions to persons employed on the basis of extraordinary procedures, and ordered the continuation of the proceedings. 13. On 29 January 2020, the applicants asked the CoL to abstain from deciding the case in so far as, in his order of 9 December 2019, he had not merely carried out a superficial control of the grounds put forward in support of the referral request but, on the contrary, improperly expressed his own conviction on the matter at issue. 14. A further challenge by the applicants to the CoL hearing the case was dismissed on 17 July 2020 by the Judge for Extraordinary Remedies (‘JER’), who held that the CoL – who had had the duty to decide on the referral request – had to examine the question raised, to consider whether the request was manifestly ill-founded or deserving of a referral. Such an assessment did not mean that he was usurping the functions of the Constitutional Court nor that he had expressed himself on the administrative complaint. However, in what appears to be an obiter dictum, the JER continued to note that the impugned provision of law had to be examined by the CoL in the light of Convention principles, and in the present case the applicants had suffered a legislative interference (the justification of which was being challenged) in pending proceedings which had started in January/February 2016 before the enactment of the impugned legislative decree in July 2016. The case was thus sent back to the CoL for him to continue hearing the case. 15. By a judgment of 4 November 2020, the CoL dismissed their claim considering that the calculation was in line with the new law no. 88/2016, which clarified the content of Article 63 (1) of law no. 189/2015, which was a lex specialis derogat legi generali and thus prevailed over law no. 132/1987 (and in so far as relevant the provisions of law no. 41/1972). Furthermore, the applicants had benefitted from Article 63 of law no. 189/2015, which had allowed them to be permanently recruited without having participated in any public competition. That placed the applicants in a different position from that of other officers who had been permanently recruited by means of a public selection, thus, the different remuneration of the former was not contrary to the principle of reasonableness. Likewise, no violation of Article 9 (principle of equitable remuneration) of the Declaration of the Citizens’ Rights could be established. 16. On 4 December 2020, the applicants lodged an appeal before the Judge of Appeal (Giudice d’ Appello) exercising administrative jurisdiction. They reiterated their request for a constitutional reference concerning the constitutionality of Article 1 of law no. 88/2016 and extended the list of constitutional parameters considered to have been violated, by also including Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. This request was later withdrawn by the applicants. 17. By a judgment of 30 March 2022, notified to the applicants on 4 April 2022, the Judge of Appeal upheld the first-instance judgment in its entirety, emphasising that the applicants had not been employed by means of a public competition but through an ad hoc process and therefore that the ordinary law dealing with the former type of recruitments could not apply to them. It ordered the applicants, jointly and severally, to pay the costs and fees of the appeal proceedings. RELEVANT LEGAL FRAMEWORK
18. The translation of the relevant domestic law has been provided by the Government. 19. Law no. 41/1972 and subsequent amendments (law on public employment), in so far as relevant, reads as follows:
Article 6
“Posts for civil servants shall be filled by means of a competition announced by the Parliament (...)”
Article 54
“Service rendered after reaching the age of 21 and prior to appointment in the Public Administration, whether for assignments or substitutions lasting more than ten working days at normal working hours, shall be counted in full and retroactively for the purposes of career advancement and establishment of periodic increases. This service shall be recognised at the employee’s request, against payment of statutory withholding taxes calculated on the basis of the last salary.”
20. Law no. 132 of 13 November 1987 (Regulations of the Uniformed Unit of the Fortress Guard) as amended by law no. 99 of 5 September 1997 (Amendment to the Regulations of the Uniformed Unit of the Fortress Guard), in so far as relevant, reads as follows:
Article 6
“Cadet Guards shall be recruited in the Uniformed Unit of the Fortress Guard following a public competition, in which anyone meeting the requirements indicated in the recruitment announcement issued by the Government Body (Congresso di Stato) may participate (...)”
Article 15
“Rank advancement in the Corps shall take place as follows:
- Rank advancement by seniority
from Cadet Guard to Guard: after one year of service from recruitment;
from Guard to Major Corporal: after 8 years of service from recruitment;
from Major Corporal to Sergeant: after 13 years of service from recruitment;
For the above-mentioned ranks there shall be no limit of number in the Corps’ Staff.
- Rank advancement based on qualifications and exams
Sergeants-Major shall be recruited following an internal competition, provided that they have served at least 13 years in the Corps or have a High School Diploma and have served at least 6 years in the Corps;
Assistant Sergeants-Major shall be recruited following an internal competition, provided that they have been Sergeants-Major far at least three years or that they have a degree in law or economics and have served at least 3 years in the Corps. All rank advancements, both based on seniority and on competition, shall be decided by the Government Body, upon proposal of the Commander following the favourable opinion of the Higher Command of the Militia. Always in order to advance to a higher rank, seniority in the Corps shall be effective. (...)
Rank advancement of Officers shall be decided by the Government Body, upon proposal of the Higher Command of the Militia (Comando Superiore delle Milizie)
(...)”
Article 21
“The levels of remuneration of the Guards in accordance with the provisions of the Annex to law no. 86 of 25 November [1980 Restructuring of the offices and services of the State; Amendments to the regulation of public employment relationships] and subsequent amendments:
(...)
Remuneration shall be subject to any increases and variations as established in favour of State employees. (...)”
21. Article 5 of law no. 54/2003 (Implementation of the Agreement between the Government Body and Trade Unions concerning the contractual relationship of civil servants - four-year period 2001-2002-2003-2004 Amendments to Annex ‘F’ to the Law on public employment) reads as follows:
“For the purposes of calculating seniority steps and anything else deriving from career advancement as provided for by the regulations, the service rendered within the Public Administration in accordance with the provisions in force, by employees who will benefit from regularisation, shall be taken into account. The effects in terms of remuneration deriving from the career reconstruction, which will take place after recruitment, shall start to run from 1 March 2003 and shall not include the payment of arrears.”
22. Article 63 of Law no. 189/2015 (Budget of the State and State Entities for the 2016 tax year and multi-year budgets for the period 2016/2018), reads as follows:
“1. To implement the indications contained in the decision approved by the Parliament on 30 April 2015 concerning the reorganisation of the Police Corps, also with a view to strengthening prevention and territorial control activities, by arranging for further actions to counter widespread predatory and most socially alarming crime, through the reinforcement of 24-hour patrol services throughout the territory by the Police Corps and the establishment of the Inter-agency Operations Centre, by way of derogation from the provisions of Article 6 of Law no. 132­­/1987 and subsequent amendments, ( ... ), those who are already serving at the entry into force of this Law with the rank of ‘Cadet Guard’ ( ... ) shall be permanently recruited in the Uniformed Unit of the Fortress Guard (Nucleo Uniformato della Guardia di Rocca) with the rank of ‘Guard’, (...), provided they have served continuously for a period of at least five years starting from 1 January 2008. 2. The officers who meet the requirements set forth in paragraph 1 above shall be permanently recruited in the Uniformed Unit of the Fortress Guard (...) with the rank of ‘Guard’ (...) following acknowledgment by the Parliament (...)”
23. Article 1 of Delegated Decree no. 88/2016 (Provisions for the recruitment of Police Officers and for the verification of psychophysical fitness to serve in the Gendarmerie Corps and in the Uniformed Unit of the Fortress Guard) reads as follows:
“1. The effects in terms of remuneration deriving from the career reconstruction resulting from the permanent recruitment in the Uniformed Unit of the Fortress Guard of those persons falling within the scope of Article 63 (1) of law no. 189 of 22 December 2015 shall run from 1 February 2016, given the acknowledgment of the recruitment by the Parliament with decision no. 8 of 18 January 2016. 2. The effects in terms of remuneration deriving from the career reconstruction shall not include the payment of arrears and of the statutory withholding taxes referred to in Article 54 of law no. 41 of 22 December 1972.”
24. Article 4 of Delegated Decree no. 23/2016 (Implementation of the Agreement between the Government Body and Trade Unions to overcome precarious employment in the Overall Public Sector and regulations on the appointment of medical personnel) read as follows:
“The effects in terms of remuneration deriving from the career reconstruction, which will take place after recruitment and/or appointment, shall start to run according to the terms set out in the Agreement and shall not include the payment of arrears and of the statutory withholding taxes referred to in Article 54 of law no. 41 of 22 December 1972.”
25. Article 4 of Delegated Decree no. 214/2020 (Implementation of the Agreement between the Government Body and Trade Unions to overcome precarious employment in the Social Security Institute) read as follows:
“The effects in terms of remuneration deriving from the career reconstruction, which will take place after appointment, shall start to run according to the terms set out in the Agreement and shall not include the payment of arrears and of the statutory withholding taxes referred to in Article 54 of law no. 41 of 22 December 1972.”
THE LAW
JOINDER OF THE APPLICATIONS
26. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment (Rule 42 § 1 of the Rules of Court). SCOPE OF THE CASE
27. The Court observes that while the applicants and the Government in their replies referred to the issue of remuneration relating to higher duties performed without any assignment in the corresponding rank, a matter raised in the context of another complaint, the latter had been declared inadmissible at the stage of communication of the application by the President of the Section acting as single judge (see the preamble above). PRELIMINARY OBJECTIONS
28. The Government submitted that the applicants had not exhausted domestic remedies in so far as they had withdrawn their request to the Judge of Appeal, based on their Convention complaints, for the matter to be referred to the Constitutional Court (see paragraph 16 in fine). 29. The applicants submitted that they had no direct access to the Constitutional Court and could only ask for the administrative courts to refer the matter to the Constitutional Court, thus it was not a remedy to be exhausted. Moreover, the applicants had made such a request at first instance, and it had been deemed manifestly ill-founded by the CoL. The request made on appeal had also been rejected given that the applicants had waived it, without the Court of Appeal considering that it could have referred it of its own motion. 30. The Court has already held that while in San Marino an administrative court hearing the merits of a case has the possibility of making a reference to the Constitutional Court, at the request of a party or of its own motion, such an application cannot be a remedy whose exhaustion is required under the Convention, in the absence of exceptional circumstances taking into account the specifics of the functioning of constitutional review proceedings in the domestic system at issue (see Pasquinelli and Others v. San Marino, no. 24622/22, § 40, 29 August 2024 and the case-law cited therein). No such circumstances having been established in the present case, the Court confirms that such an application cannot be a remedy whose exhaustion is required under the Convention and therefore dismisses the Government’s objection in this respect. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
31. The applicants complained about a legislative intervention by the State in pending proceedings to ensure that the outcome was favourable to it, which they considered was contrary to Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Admissibility
32. The Court observes that the Government have not raised any objection ratione materiae. However, it notes that competence ratione materiae is a matter which goes to the Court’s jurisdiction and which it is not prevented from examining of its own motion (see, for example, Pasquini v. San Marino, no. 50956/16, § 86, 2 May 2019). 33. The Court reiterates that for Article 6 § 1 to be applicable under its “civil” limb, there must be a “dispute” regarding a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see Regner v. the Czech Republic [GC], no. 35289/11, § 99, 19 September 2017, and Fabbri and Others v. San Marino [GC], nos. 6319/21 and 2 others, § 76, 24 September 2024). 34. There can in principle be no justification for the exclusion from the guarantees of Article 6 of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of relationship between the particular civil servant and the State in question. There will, in effect, be a presumption that Article 6 applies. It is for the respondent Government to demonstrate firstly that a civil-servant applicant does not have a right of access to a court under national law and, secondly, that the exclusion of the rights under Article 6 for the civil servant is justified (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007-II). 35. As noted above, the Government raised no objection, and indeed the proceedings at issue in the present case, at least at their judicial stage, concerned directly and were determinative of a dispute about, inter alia, the applicants’ salaries and entitlements (see paragraphs 7 above). Having regard to this fact and noting that the dispute fell within the jurisdiction of the domestic courts, it finds that Article 6 was applicable (see, for example, Vasilchenko v. Russia, no. 34784/02, §§ 34-36, 23 September 2010). 36. The Court further notes that the applicants’ complaint under Article 6 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicants
37. The applicants submitted that law no. 88/2016 (see paragraph 23 above) enacted after their requests for career reconstruction to the PAPMO (see paragraph 7 above) constituted a legislative intervention having retroactive effect aimed to influence the outcome of the dispute eventually brought before the domestic courts, thus constituting a breach of Article 6 § 1 of the Convention. Relying on the findings of the JER (see paragraph 14 above) they considered that there was no doubt that the proceedings had been initiated as of their request to the PAPMO, and therefore that the legislative intervention occurred pending proceedings. The mere fact that, as noted by the Government, it was promulgated only a few months after their request had no bearing on its aims or effects. 38. The applicants noted that the decision of parliament of 18 January 2016 (see paragraph 6 above) had merely dealt with their employment and their salary scale but had not concerned remuneration in relation to career reconstruction. There was thus no doubt that, in the absence of the enactment of law no. 88/2016, the applicable law was the general law no. 132/1987. To perpetrate this abuse the Government had had in fact to resort to law no. 88/2016, which, as shown by its title “decree law” was only used in cases of urgency and necessity. As a result, the administrative jurisdictions’ conclusions had only been limited to a finding that the calculation applied to the applicants had complied with the law, but no considerations regarding any compelling public interest or any other Convention related assessment had been made concerning the legitimacy of that law. 39. In reply to the Government’s arguments, the applicants contended that the derogation from the ordinary law in the present case could not be comparable to exceptional regularisation situations which had occurred in the past. This was so because the Government had neither entered into a trade union agreement with the Military (its special status not allowing for such trade unions), unlike the other situations (see paragraphs 21, 24 and 25 above), nor had there been any agreement with the applicants’ themselves. The situation had simply been imposed on them by analogy. (b)   The Government
40. The Government submitted that the applicants suffered no legislative interference pending proceedings. Although they had applied for career reconstruction in January/February 2016, the relevant administrative procedure had not been initiated by the PAPMO which could not have taken any action due to the “peremptory” nature of Article 63 of law no. 189/2015. The latter had derogated from the ordinary rules (law no. 132/1987 and subsequent amendments, which, concerning remuneration, referred back to public employment laws, see paragraphs 20 and 19 above) and presupposed the adoption of a further regulatory intervention to complete it, which was then adopted, immediately after, via law no. 88/2016. It was only after this further legislation, which was complementary and could not be considered as having retroactive application, that the PAPMO could start the administrative procedure pertaining to the applicants’ career reconstruction. Prior to that it would have been unable to do so given the legal vacuum. 41. The Government explained that the financial claims which were put forward by the applicants had been based on the provisions of Article 6 of law no. 132/1987 and subsequent amendments (see paragraph 20 above), which, however, necessarily presupposed, for the purposes of their application, that employees were recruited by means of a public competition. This was, however, not the case for the applicants and therefore their request had no basis in law. Indeed, the applicants were permanently recruited through an extraordinary procedure (so-called regularisation of precarious personnel, already used in the past) which in the present case was authorised via Article 63 of law no. 189/2015, supplemented, six months later, by law no. 88/2016, whereby the legislator defined the remuneration (including in relation to career reconstruction) of officers recruited through this extraordinary procedure, which derogated from the law which had been relied on by the applicants. 42. The Government noted that in previous regularisations, the legislator had also provided for career reconstruction starting from a date other than that on which employees effectively took office, generally coinciding with the date of regularisation, without recognising the payment of arrears. As in the present case, on such occasions, the permanent recruitment in the Public Administration of precarious staff had also not been the result of a public competition – the only method envisaged by law no. 41/1972 (on public employment, see paragraph 19 above) – but through the verification of specific requirements (such as the type of assignment and its duration) indicated by the legislation specifically adopted for the regularisation. 43. The inapplicability of law no. 132/1987 in the applicants’ cases was also evident by the fact that they had not become employed definitively after one year of their probationary period, and indeed the applicants raised their requests only after being recruited under the new law, and not before. This delay coupled with the fact that they awaited a further two years following their recruitment to initiate judicial proceedings went to show that they had been aware that the provisions of the ordinary law could not apply to their special situation. Domestic case-law had also taken this orientation in similar disputes concerning extraordinary procedures for the regularisation of Public Administration personnel which had emphasised that “facilitated” access (i.e., in the absence of a public competition but by means of direct recruitment through appointments) to employment in the overall Public Administration may constitute a justification for the purposes of adopting a different legislation [1]. 44. The application of this model also to the present cases was envisaged by the legislator in order to ensure uniformity of remuneration of all personnel employed by the Public Administration who benefitted from regularisation procedures - both civil and military personnel - taking into account the fact that the Regulations of the Uniformed Unit of the Fortress Guard referred, for the purposes of regulating the remuneration of officers, to the legislation relating to public employment (see Article 21 of law no. 132/87 at paragraph 20 above)[2]. Thus, military personnel were also subject to the economic treatment of civil personnel. It followed that, just as military personnel would be guaranteed the remuneration envisaged by law no. 41/1972 in the case of recruitment following a public competition, in the same way military personnel recruited through an extraordinary procedure were subject to the same salary model already envisaged for civil personnel employed by the Public Administration who had benefited from past regularisations. Moreover, such regularisations had a basis in law irrespective of any agreements with the relevant trade unions. 45. The aim of law no. 88/2016 was therefore not to interfere with any ongoing proceedings, nor to circumvent the rule of law, but rather to ensure uniform remuneration to all personnel employed in the overall public sector, including military personnel permanently recruited through an extraordinary procedure who had to be granted the same remuneration as civil employees recruited through similar procedures. This was an imperative requirement in the public interest as it was undeniable that the impartiality of the actions performed by the Public Administration was an essential guarantee for the functioning of the State, grounded in various laws including the Declaration of the Citizens’ Rights, which enshrines the principle of equality understood as the State’s obligation to treat substantially equal situations in an equal way and different situations in a different way.

Outcome for Article 6: violation