CASE OF MENNITTO v. ITALY
Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Luzius Wildhaber
7. On 15 March 1984, pursuant to Law no. 833/78, which created the National Health Service and required regional governments, inter alia, to adopt appropriate measures for the prevention, screening and treatment of disabilities, the Campania Regional Council enacted Regional Law no. 11 (“the Regional Law”). Article 26 of the Regional Law authorised local public health services (Unità Sanitarie Locali – “USLs”) to grant allowances for the first three years after its entry into force to families caring for disabled members of their household directly in their own homes. 8. On 5 December 1989 the Management Committee (Comitato di gestione) of Benevento USL no. 5, applying Article 26 of the Regional Law, decided that 134 persons, including the applicant's son, satisfied the conditions entitling their families to payment of the allowance. The decision authorised only distribution to qualifying beneficiaries, depending on the date when they had been recognised as 100% disabled, of the sum of 35,328,240 Italian lire (ITL) for the year 1985; the applicant received ITL 84,720 in respect of the months of November and December 1985. 9. By a notice to pay served on 12 June 1993, the applicant asked Benevento USL no. 5 to grant him the allowance. He pointed out that the placing of his son's name on the list of persons who satisfied the conditions required by the Regional Law for entitlement to the allowance had not been followed by the payment provided for in Article 26 of the Regional Law. 10. As the USL did not reply, the applicant brought proceedings against it in the Campania Regional Administrative Court (“the RAC”) on 2 August 1993. Relying on Article 26 of the Regional Law, he sought a declaration that the lack of an answer from the USL – amounting to a refusal – had been unlawful and that he was entitled to the allowance in question for the years 1985, 1986 and 1987. 11. On 13 August 1993 the applicant requested that a date be fixed for the hearing. On 27 July 1995 he submitted an urgent request for a hearing date to be fixed, observing, inter alia, that the USLs were to be restructured on 31 December 1995 and that Italian legislation made no provision for financial continuity between the old entities and the new ones. He was therefore asking for his case to be set down because after the end of 1995 he would no longer be able to obtain the allowance he sought. In a pleading filed on a date which has not been specified, USL no. 5 submitted, among other arguments, that it did not have capacity to defend the action (legittimazione passiva), on the ground that only the Region was required to make available the financial resources needed for payment of the allowance. It maintained that the applicant, who had received the allowance for the year 1985, within the limits of the budgetary appropriations, should have challenged the decision of 5 December 1989, but as he had not done so it had become final and the amount paid could no longer be called into question. 12. The case was heard on 14 January 1997. In a judgment of 14 January and 4 February 1997, the text of which was deposited with the registry on 3 March 1997, the RAC observed in the first place that the applicant was not required to challenge the decision in issue as it did not contain a refusal to pay the full amount of the allowance. On the contrary, there had been two valid alternative ways of interpreting the USL's conduct. For example, the applicant could have thought the USL was making a payment on account, while reserving final determination of the amount to be paid for a later assessment, or that it had decided to pay a larger sum with an initial instalment to be followed by others. On the merits, the RAC held that, once it had been verified that the statutory conditions for entitlement to the allowance had been satisfied, it should be paid in the quantum provided for in Article 26. The administrative authority thus had no discretionary power and its role should have been restricted to making a purely arithmetical calculation. The applicant had duly established that he was the father of a 100% disabled civilian living with his family; moreover, his son's name was the 95th in the list included in the decision of 5 December 1989. The USL should therefore have ruled on his application. However, as the Court of Cassation had stated when determining a dispute over jurisdiction (judgment no. 8297 of 11 October 1994), the applicant could not claim to have a “personal right” (diritto soggettivo perfetto) but only a “legitimate interest” (interesse legittimo), that is to say an individual position indirectly protected as far as was consistent with the public interest, which would remain the case until such time as the administrative authority adopted a decision to award the allowance and specified the total amount to be paid. The RAC therefore dismissed the applicant's action in so far as it concerned recognition of his entitlement to the allowance in question. 13. On 20 June and 5 July 1997 respectively USL no. 5 and the Campania Regional Council appealed to the Consiglio di Stato. By a decision of 30 August 1997 the Consiglio di Stato stayed execution of the first-instance judgment. 14. On 14 November 1997 the Director-General of the ASL (Azienda Sanitaria Locale), the body which had taken the place of the USL, approved the text of a friendly settlement reached on 7 November between the administrative authority and the applicant, among others. Noting that in numerous similar cases the competent courts had nearly always recognised that the plaintiffs were entitled to the allowance for the years 1985-87, further noting that the settlement had been signed after it had been verified that the conditions required by the Regional Law had been satisfied, and having regard to the fact that the settlement was about to put an end to a high-profile case which would in all probability have gone against the administrative authority, given the line the courts had taken on the question, so that the public purse would be saved billions of lire, the Director-General ordered payment of the allowance. By a judgment of 25 November 1997, the text of which was deposited with the registry on 27 December 1997, the Consiglio di Stato took formal note of the friendly settlement the parties had reached and struck the case out of its list. 15. The allowance for the families of disabled civilians is governed by Article 26 of Regional Law no. 11 of 15 March 1984, the relevant parts of which provide: “For three years after the entry into force of the present Law, local public health services shall be authorised to grant an allowance to families who undertake to provide direct care for persons suffering from mental or physical disabilities who are incapable of attending to their own primary needs and require constant assistance. The allowance shall be granted in pursuance of the following objectives: (a) returning to their families disabled people formerly in full-time institutional care; (b) encouraging the practice of caring for disabled children within the family ...; (c) socialising the disabled person and improving his relations with those around him; (d) improving the lives of the families of disabled persons; (e) creating a favourable environment for the life of the disabled person; ... The amount of the family carers' allowance shall be 25% of the daily charge for attendance on persons hospitalised full-time.” 16. The Court of Cassation has given a number of rulings on the carers' allowance in connection with appeals on points of law concerning disputes over jurisdiction. 17. For example, in judgment no. 5386 of 12 May 1993 it held that, where the jurisdiction of the ordinary courts had been recognised in a decision which had become final, disputes concerning Article 26 of the Regional Law fell into the category of disputes over mandatory assistance, which came within the jurisdiction of the magistrate's court, sitting as an employment tribunal. In judgment no. 8297 of 11 October 1994 it held that the administrative courts had jurisdiction over disputes about entitlement to the allowance, ruling that the beneficiary could not claim to have a personal right but only a legitimate interest, that is to say an individual position indirectly protected as far as was consistent with the public interest, and that this would remain the case until such time as the administrative authority adopted a decision to award the allowance and specified the total amount to be paid. The appellants in these two cases were in a similar situation to Mr Mennitto, but had applied to the ordinary courts. 18. The Campania RAC has upheld on many occasions the claims of other persons caring for disabled relatives. In its judgment no. 251, deposited with the registry on 16 May 1995, it ruled: “[The Court] declares that the claimant is entitled to receive the allowance provided for in Article 26 of [the Regional Law] ...; Orders the respondent authority to pay the sum in question ...” In that decision and in others (such as judgment no. 310 of 4 July 1995 and judgments nos. 323 and 324 of 6 February and 11 June 1996) the RAC gave the following reasons for its ruling: “[Article 26 of the Regional Law] makes adoption of the decision to grant the allowance subject, among other requirements, to verification that beneficiaries satisfy the relevant qualifying conditions. When such verification had been made, determination of the amount to be paid should have required no more than a simple arithmetical calculation ... In the light of these principles ..., exercise of the discretionary power pleaded by the USL has no bearing on the case, since otherwise it would be possible for an administrative decision to replace an assessment already ineluctably made by the legislature ...” After finding that G.C. (the relative of the claimant in that case) was 100% disabled and required constant assistance, which was why, following tests carried out by the respondent authority, his name had been placed on the list of qualifying beneficiaries, the RAC ruled that there was an obligation to pay the allowance. 19. The Consiglio di Stato, ruling on the question of determination of the amount of the allowance, held that the Region could not be absolved from the obligation to make available to each USL a sum earmarked for families providing direct care to disabled persons and sufficiently large to ensure that each of these families would be able to receive the amount of allowance prescribed by law (judgment no. 766 of 3 October 1994). In its judgment no. 172 of 17 February 1999 the Consiglio di Stato ruled that the amount of the allowance for families caring directly for disabled persons, in so far as it was fixed by law, could not suffer any reduction by the administrative authority, which in this matter had no discretion whatever with regard to quantum, and that that conclusion was not in contradiction with the nature of the legitimate interest of the disabled person's family.