Special Appeal before the President of the Republic, who has not responded for 14 years! The action for unjustified delay is inadmissible because it did not concern a court procedure
JUDGMENT
Mediani v. Italy 01.10.2020 (aoo. no. 11036/14)
SUMMARY
The case concerned the length of proceedings relating to a special appeal to the President of the
Republic (ricorso straordinario al Presidente della Repubblica).
Mr Mediani, who had lodged his appeal in 2004 in order to challenge the decision to revoke his
advancement to a higher salary step, complained of the fact that the proceedings were still pending
in December 2018. He relied on Article 6 § 1 (right to a fair hearing within a reasonable time).
The Court observed that in the case of Nardella v. Italy it had held that the provisions of the
Convention were not applicable to special appeals to the President of the Republic.
However, noting that the legislation relating to special appeals to the President of the Republic had
been amended in 20092 and 20103, the Court considered that as of 16 September 2010, Article 6 of
the Convention applied to such appeals in so far as the proceedings concerned a dispute over “civil
rights and obligations”.
The Court also specified that where the length of such proceedings was excessive applicants were
required, before applying to the Court, to lodge a compensation claim with the competent “Pinto”
court of appeal, in order to give the domestic courts an opportunity to examine the issue.
However, in the present case the Court considered that at the relevant time Mr Mediani’s special
appeal to the President of the Republic had not come within the scope of application of the new
procedure for special appeals. As the applicant had lodged his appeal on 13 July 2004 – that is, prior
to 16 September 2010 – his application came within the scope of the case-law established in
Nardella, cited above
PROVISION
Article 6§1
PRINCIPAL FACTS
The applicant, Francesco Mediani, is an Italian national who was born in 1935 and lives in
Portoferraio (Italy).
In 1986 the Province of Livorno granted Mr Mediani advancement to a higher salary step within the
administrative authority for which he worked, but that decision was annulled by the regional
supervisory committee (“the committee”). Mr Mediani appealed to the Tuscany Regional
Administrative Court, which in 1997 allowed his appeal. However, in 1998 the Province of Livorno,
basing its decision on a negative opinion from the committee, revoked Mr Mediani’s advancement
to a higher step. The applicant appealed to the Regional Administrative Court, which found in his
favour.
In 2004, after the Province of Livorno had again revoked Mr Mediani’s advancement, he lodged a
special appeal with the President of the Republic. According to the information in the case file the
appeal was still pending on 11 December 2018.
THE DECISION OF THE COURT…
Article 6 § 1 (right to a fair hearing within a reasonable time)
The Court observed that in the case of Nardella, cited above, it had held that the provisions of the
Convention were not applicable to special appeals to the President of the Republic and that this
remedy was not required to be exhausted for the purposes of Article 35 of the Convention.
However, noting that the legislation had been amended in 2009 and 2010, the Court considered that
the changes made to the remedy in question needed to be examined in greater detail. In that
connection it noted the following.
Following the enactment of the 2009 Law, the decree issued by the President of the Republic
endorsed the opinion of the Consiglio di Stato. Under domestic case-law this new provision made
the latter’s opinion binding, with the result that the judicial nature of the opinion issued by the
highest-ranking administrative court applied also to the instrument enacted by the President of the
Republic.
The 2010 Legislative Decree also indicated clearly that a special appeal could be lodged in relation to
any subject matter coming within the jurisdiction of the administrative courts. Hence, this remedy
could be used systematically as a fully fledged alternative to an ordinary judicial appeal.
Furthermore, Article 48 of the Decree confirmed the judicial nature of the special appeal and
introduced a procedural safeguard for the other parties by offering all interested parties the option
of agreeing to the other party’s choice to lodge an appeal with the President of the Republic or of
objecting to it and requesting that the appeal be heard by the administrative courts. Hence, the
special appeal to the President of the Republic had similarities with – while remaining distinct from –
what might be regarded as a direct application to the Consiglio di Stato without going through any
intermediate stages.
The Constitutional Court had also accepted that the Consiglio di Stato could raise an issue of
constitutionality if the special appeal could not be determined independently of the resolution of
that issue.
Lastly, the Court observed that the domestic courts had previously recognised that in the event of
non-enforcement of the presidential decree, the person concerned could lodge an application for
enforcement (giudizio di ottemperanza) with the competent regional administrative court in the
same way as for an administrative judgment. Moreover, an application to set aside could be made
against the presidential decree.
For all the above reasons the Court considered that, following the amendments made by the 2009
Law and the 2010 Legislative Decree, the end result of the changes to the special appeal to the
President of the Republic was that it constituted a judicial remedy for the purposes of Article 6 of the
Convention.
Hence, as of 16 September 2010, the date on which the 2010 Legislative Decree had entered into
force, Article 6 of the Convention was applicable to special appeals to the President of the Republic,
provided that the proceedings in which the remedy was exercised concerned a dispute over “civil
rights and obligations”.
Thus, where the length of the proceedings was excessive applicants were required, before applying
to the Court, to lodge a compensation claim with the competent “Pinto” court of appeal, in order to
give the domestic courts an opportunity to examine the issue.
In the present case Mr Mediani had lodged his appeal with the President of the Republic on 13 July
2004. However, according to the case-law of the domestic courts, the judicial nature of such appeals
under the new rules applied only if they had been lodged on or after 16 September 2010.
Furthermore, Mr Mediani had not lodged a complaint with the “Pinto” court of appeal in respect of
the allegedly excessive length of the proceedings.
Accordingly, the Court considered that at the relevant time the domestic remedy in question had not
come within the scope of application of the new special appeals procedure. Reiterating its findings in
the case of Nardella, cited above, the Court therefore held that the application was incompatible
ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and had
to be rejected in accordance with Article 35 § 4 of the Convention.
