Information Note on the Court’s case-law 23

October 2000

Mennitto v. Italy [GC] - 33804/96

Judgment 5.10.2000 [GC]

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Recognition of the right  to an allowance: article 6 applicable

Facts : In 1984 the Campania Regional Council enacted Regional Law no. 11, Article 26 of which authorised local public health services (“USLs”) to grant allowances to fa milies caring for disabled relatives at home. Application of the Regional Law gave rise to a number of appeals and it became apparent during the appeal proceedings that there was a conflict of jurisdiction between the ordinary and the administrative courts . The Court of Cassation held that a claimant could not assert a personal right until the administrative authority had adopted a decision to award the allowance and specified the amount to be paid. Where no decision had been taken a claimant could only ple ad a legitimate interest. In a number of cases the Campania Regional Administrative Court (“the RAC”) recognised the right of the relatives of disabled persons to receive the allowance provided for in the Regional Law and held that a USL did not have discr etion to fix the amount of the sum payable but was required to restrict itself to a mere arithmetical calculation. The Consiglio di Stato held that the Region could not evade the obligation to provide the funds necessary for application of Regional Law no. 11, and that the amount of the allowance could not be reduced by the administrative authority, thus confirming that the latter had no discretion to fix the amount to be paid.

In 1989 the USL decided that the applicant’s son satisfied the conditions entitl ing his family to payment of the allowance. Pursuant to that decision, the applicant received a sum for the months of November and December 1985. In June 1993 he served the USL with a notice to pay, pointing out that he had not received the full amount of the allowance. As the USL did not reply, the applicant brought proceedings against it in the RAC. In August 1993 he unsuccessfully requested the RAC to fix a date for the hearing. In July 1995 he again asked for a date to be fixed for a hearing, this time going through the urgent procedure. The case was heard on 14 January 1997. The RAC held that the administrative authority had no discretionary power in such cases and that its role should have been restricted to verifying whether the claimant satisfied the statutory qualifying conditions, and if so calculating the sum he was to be paid. Noting that the applicant did satisfy the statutory conditions, it held that the USL should therefore have ruled on his application. However, applying the case-law of the Co urt of Cassation, it held that he had only a legitimate interest in obtaining such a decision and refused his application because in it he had asserted a right to the allowance. In June 1997 the USL appealed against the above judgment to the Consiglio di S tato . By a decision of 30 August 1997 the Consiglio di Stato stayed execution of the RAC’s judgment. In November 1997 the body which had taken the place of the USL, noting that the courts had given judgment against the administrative authorities in numerou s similar cases, reached a settlement with the applicant. The Consiglio di Stato took formal note of the agreement and struck the case out of its list on 25 November 1997.

Law : Article 6 § 1 – Applicability: The Government did not deny that there had been a dispute between the applicant and the administrative authority over the existence of a right, and that this dispute had been sufficiently serious to have been determined by the RAC. Moreover, the outcome of the proceedings whose length was complained of had undoubtedly been decisive for the applicant, since it concerned recognition of his right to obtain the full amount of the allowance. Although the RAC had held that the applicant had no right to receive the allowance, it had noted that the administrativ e authorities had no discretion over the amount of the allowance, which was fixed by law. The same RAC had, moreover, held that persons in the same situation as the applicant were entitled to the allowance. The Consiglio di Stato had likewise affirmed that the administrative authorities had no discretion and ruled that the Region was under a duty to provide the funds needed to ensure that the allowance was paid to beneficiaries in the amount laid down by law. It was not necessary for the Court to consider w hether a mere legitimate interest came within the scope of the autonomous concept of “rights” within the meaning of Article 6. It was sufficient to note that the RAC and the Consiglio di Stato had not followed the case-law of the Court of Cassation on that point and that the latter court did not have authority to impose a solution of the legal question in issue on the administrative courts. Consequently, the applicant could reasonably assert th e right to payment of the allowance, especially as he had already received two monthly instalments. Such a right, being of an economic nature, was a “civil” right within the meaning of the Court’s case-law. Article 6 § 1 was therefore applicable (fifteen v otes to two).

The period to be taken into consideration had begun with the application to the RAC in August 1993, had ended when the Consiglio di Stato struck the case out of its list in December 1997, and had lasted nearly four years and five months. The existence in Italy of a practice incompatible with the Convention resulting from an accumulation of breaches of the “reasonable time” requirement was an aggravating circumstance of any violation. The Mennitto case was one more instance of that practice.

Conclusion : violation (fifteen votes to two).

Article 41: The Court awarded the applicant ITL 5,000,000 for non-pecuniary damage and a sum for costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bin d the Court.

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