Last Updated on October 2, 2020 by LawEuro
Information Note on the Court’s case-law 244
October 2020
Mediani v. Italy (dec.) – 11036/14
Decision 8.9.2020 [Section I]
Article 35
Article 35-1
Exhaustion of domestic remedies
Requirement to exhaust the compensatory remedy (“Pinto” remedy) in respect of complaints concerning the time taken to examine special appeals to the President of the Republic (Italy)
Article 6
Civil proceedings
Article 6-1
Civil rights and obligations
Fair hearing
Complaints concerning the procedure for special appeals to the President of the Republic (Italy) in its “judicialised” form (appeals lodged since 2010): article 6 applicable ; inadmissible
Facts – In 2004, in the context of a dispute with the administrative authorities, the applicant lodged a “special appeal” with the President of the Republic. Having received no response after many years, he complained that his case had not been heard within a reasonable time as required by Article 6 of the Convention.
Law – Article 6: In the case of Nardella v. Italy ((dec.), 45814/99, 28 September 1999, Information Note 10), the Court had held that Article 6 was not applicable to such appeals, noting that at the relevant time the opinion of the Consiglio di Stato had not been binding on the President of the Republic, who could decide not to follow it. For the same reason these appeals were not taken into account for the purpose of exhaustion of domestic remedies.
Nevertheless, in the light of various amendments to the legislation in 2009 and 2010 and of the domestic case-law, the Court considered that the procedure for lodging a special appeal with the President of the Republic had changed, such that it could now be regarded as a judicial remedy. The Court noted the following points:
– the opinion of the Consiglio di Stato was now binding on the President of the Republic;
– before issuing its opinion the Consiglio di Stato could raise an issue of constitutionality with the Constitutional Court;
– as special appeals to the President could be lodged in relation to any subject matter coming within the jurisdiction of the administrative courts, this remedy could be exercised systematically as a fully fledged alternative to an ordinary judicial appeal;
– any decision to lodge an appeal with the President required the agreement of the other parties to the dispute (failing which it had to be lodged with the administrative courts). Hence, this represented an option, based on consensus, to take proceedings which, while complying with the adversarial principle, did not allow for the possibility of appeal and were conducted under a simplified and expedited procedure.
In view of the above considerations an appeal to the President of the Republic had certain similarities with what might be regarded as an application to the Consiglio di Stato without going through any intermediate stages.
As to the scope of the decree issued by the President of the Republic on conclusion of the proceedings, the Court also noted a number of aspects which rendered it akin to a judicial ruling:
– in the event of non-enforcement of the presidential decree the person concerned could lodge an application for enforcement with the courts;
– conversely, if the decree was liable to result in serious and irreparable harm the person concerned could apply for its enforcement to be suspended;
– as appropriate, the provisions of the Code of Civil Procedure governing applications to set aside were also applicable.
The Court inferred from the above that Article 6 of the Convention was applicable to special appeals to the President of the Republic lodged on or after 16 September 2010, the date on which the new rules had entered into force (provided of course that the proceedings in which the remedy was used concerned a dispute over “civil rights and obligations”).
The Court specified that if a complaint was made regarding the length of the proceedings before the President of the Republic, the corresponding claim for compensation (the “Pinto” remedy) had to have been lodged in order to satisfy the requirement to exhaust domestic remedies.
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In the present case, in which the applicant had lodged his appeal with the President well before 16 September 2010, the above-mentioned condition for the applicability of Article 6 was not satisfied.
Conclusion: inadmissible (incompatible ratione materiae).
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