AS TO THE ADMISSIBILITY OF
Application No. 28598/95
by BIELECTRIC Srl and Antonio BIONDI
against Italy
The European Commission of Human Rights (First Chamber) sitting
in private on 27 November 1996, the following members being present:
Mrs J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 June 1995 by
BIELECTRIC Srl and Antonio BIONDI against Italy and registered on
19 September 1995 under file No. 28598/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant company, having its registered office in
Ospedaletto (Pisa) and acting through the applicant, who is its legal
representative and managing director, has been in liquidation since
29 May 1995.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
a) Particular circumstances of the case
In 1983, the applicant company commissioned company X to build
a 1400 m sq. factory building in Ospedaletto (Pisa).
On 4 April and 20 June 1986, the managing director of the
applicant company - the second applicant - acting in the capacity of
director of the construction works ("direttore dei lavori"), reported
to the Construction Office ("Genio Civile") that the executive plans
("disegni esecutivi") were lacking and that some construction errors
were being committed.
On 5 September 1986, company X filed with the competent
authorities the final report on the construction ("relazione di fine
lavori").
On 1 November 1986, the applicant reported to the Construction
Office the existence of certain defects in the structure of the shed
and requested that they inspect the shed.
On 11 December 1986, the applicant filed with the Construction
Office another report on the construction, in which he pointed out the
existence of certain defects in the structure.
On 23 December 1986, the Pisa Fire Brigade inspected the shed and
reported to the Pisa Town Council that its structure presented certain
important construction errors.
On 24 January 1987, the Construction Office inspected the shed
and established the existence of certain defects in its structure. It
held that the importance of such defects was to be ascertained through
further practical tests for which it was not itself competent.
On 27 January 1987, the Pisa Town Council declared that the shed
was dangerous and unfit for use ("inagibile") and therefore warned the
applicant company not to continue the works on the shed until the
errors were rectified.
On 27 May 1988, the person in charge of the test ("collaudo
statico") informed company X that he could not proceed with the test
as the executive plans had not been duly filed with the Construction
Office.
On 30 March 1989, the applicant filed a criminal complaint
against the managing director of company X for fraud and for filing
defective executive plans in breach of the relevant anti-seismic
legislation.
On 27 March 1991, the person in charge of the test informed the
applicant company that X had not yet submitted the requested drawings
and that he could not therefore proceed with the test.
As a consequence of the lack of final testing, according to
Article 8 of Law 1086/71 no certificate of fitness for occupation
("licenza di abitabilità") could be issued by the Pisa Town Council.
On 20 June 1991 the Chief Engineer of the Construction Office
declared to the Public Prosecutor that the factory shed presented
certain defects, but that there was no clear violation of the anti-
seismic regulations and that there was no actual danger for public
safety.
On 23 June 1992 the Chief Engineer of the Construction Office
reported to the Public Prosecutor that all the necessary documents
concerning the construction of the factory shed had been filed with the
Construction Office.
On 23 February 1993, the criminal complaint of 30 March 1989 was
not pursued by the Pisa Judge for Preliminary Investigations, who held
that the conduct of the managing director of company X did not amount
to fraud but simply to a breach of contract, and that in any event the
offence under the anti-seismic legislation was time-barred and
extinguished by an amnesty.
On 1 March 1993 the Chief Engineer of the Construction Office,
on the initiative of Regional Council of Tuscany, filed a criminal
complaint against the planner of company X for violations of the
relevant anti-seismic legislation, in particular for not filing all the
necessary documents concerning the construction of the factory shed.
On 4 November 1993 this complaint was dismissed by the Pisa Judge for
Preliminary Investigations as being time-barred.
On 25 May 1993, the applicant filed with the Pisa Public
Prosecutor a criminal complaint against the Chief Engineer of the
Construction Office for giving false information to the Public
Prosecutor on 20 June 1991 and 23 June 1992 and neglect of duty
("omissione d'atti d'ufficio"). By a decision of 13 April 1994, the
judge for Preliminary Investigations dismissed the complaints
concerning the false information of 20 June 1991 and the neglect of
duty, and fixed a hearing for 9 May 1994 for the third complaint (false
information of 23 June 1992). After the hearing, by a decision of
19 October 1994 the Judge for Preliminary Investigations dismissed the
remainder of the complaint.
In the meantime, on 28 July 1993 the President of the Regional
Council of Tuscany informed the press of having filed a criminal
complaint against the applicant for insult ("oltraggio").
As a consequence of the dismissals of 23 February 1993 and
4 November 1993, pursuant to Article 25 of Law 64/74 competence to
issue directions as to the compliance of the construction works with
the relevant legislation passed from the Judge for Preliminary
Investigations to the President of the Regional Council of Tuscany (see
below).
By a decree of 6 October 1994 the President of the Regional
Council of Tuscany ordered the applicant company and company X to file
certain documents concerning the construction of the shed with the
Construction Office within thirty days of the order itself.
On 19 December 1994 the Pisa Construction Office informed the
President of the Regional Council that company X had filed certain
documents.
On 13 March 1995 the Pisa Town Council, after inspecting the
factory building on 9 March 1995, ascertained that certain executive
plans had not been deposited and that the structure presented important
differences from the original plans. It concluded that the factory
building was not in accordance with law 1086/71 and informed the
applicant company, the President of the Regional Council of Tuscany and
the Construction Office as well as the Prefect and the Magistrate
accordingly.
On 20 March 1995 the President of the Regional Council
acknowledged that his previous order of 6 October 1994 had been
complied with.
On 16 May 1995 the Pisa Town Council reiterated that the factory
building was not in accordance with law 1086/71.
The applicant filed a criminal complaint against the President
of the Regional Council of Tuscany with the Florence Public Prosecutor.
By decision of 11 September 1995, the Florence Judge for
Preliminary Investigations dismissed the complaint and held that the
President of the Regional Council had fulfilled his legal obligations
and that the decree of 6 October 1994 had made it possible to proceed
with the testing of the factory building.
The applicant applied to the Pisa Town Council seeking the
withdrawal of the order not to pursue any construction activity on the
factory building. However, by a letter of 6 February 1996, the Pisa
Town Council reiterated that the factory building as built was not in
accordance with the original plans and that although the construction
works had been completed, the final report on the construction and the
report on the final test were still lacking.
The civil proceedings
On 9 April 1987, the applicant company summoned company X to
appear before the Arezzo court, requesting that company X be ordered
to carry out all the works and amendments necessary to bring the
factory building into compliance with the law and the instructions
given by the Pisa fire brigade in December 1986.
In a judgment of 4 October 1989, filed with the Registry on
16 November 1989, the Arezzo court held that the building of the shed
did not constitute a work under a contract ("appalto") but a sale, and
that the factory building was in accordance with all the legal
requirements, the alleged defects being merely aesthetic.
On 21 June 1990, the applicant company lodged an appeal against
this judgment before the Florence Court of Appeal; the latter, in a
judgment of 26 February 1993, filed with the Registry on 13 May 1993,
held that the defects in the factory building were merely aesthetic and
did not affect the structure.
On 12 May 1994, the applicant company lodged an appeal on points
of law; the proceedings are still pending before the Court of
Cassation.
b) Relevant domestic law
According to the relevant legislation (Laws no. 1086/71 and
no. 64/74 and Regional Law no. 88/82), all building plans must be filed
with the Construction Office before beginning the construction works;
as regards constructions in seismic areas, the Construction Office
carries out sample controls of the substance of the plans.
Competence to monitor the compliance of the constructions with
the relevant legislation is vested in the mayor, the police, and the
technical staff of the town council. The police must immediately report
any alleged violation to the Construction Office. The Mayor and the
Chief Engineer of the Construction Office, after drafting a technical
report on the alleged violation, must inform the competent Public
Prosecutor thereof. Any violation of this legislation entails criminal
liability; the criminal proceedings resulting from the report concern
both the criminal liability and the bringing of the building into
compliance with the law. The competence to issue directions as to the
changes to be made on the building is vested in the Magistrate when the
proceedings end with the finding of a violation of the law and the
conviction of the person responsible for such violation, and in the
mayor when the criminal charge related to the violation is dropped on
grounds of an amnesty or as time-barred.
COMPLAINTS
1. The applicant company mainly complains about the fact that,
notwithstanding numerous criminal complaints and requests to various
authorities, it has been impossible for it to bring its factory shed
into compliance with the anti-seismic regulations and therefore to
start its manufacturing activity. According to the applicant company,
its problems reside in the conduct of the administrative authorities,
namely in the inconsistency between the Pisa Town Council and the
Regional Council of Tuscany, which seem not to agree on whether or not
the factory shed complies with the relevant regulations and therefore
frustrate the procedure which should lead to the determination of what
must be done to bring the factory shed into compliance with the law.
It complains in particular that various criminal complaints it had
filed against, inter alia, the Chief Engineer of the Construction
Office and the President of the Regional Council of Tuscany were not
pursued.
The applicant company invokes Article 1 of Protocol no. 1 and
Article 6 of the Convention in this respect.
2. The applicant complains under Article 8 of the Convention about
the conduct of the President of the Regional Council of Tuscany in that
on 28 July 1993 the latter publicly accused him of a crime of which he
was later acquitted.
3. The applicant company finally alleges a violation of Article 5
of the Convention, in that it has been prevented from starting its
manufacturing activity in a safe environment.
THE LAW
1. The applicant company alleges an interference with its right to
the peaceful enjoyment of its possessions in breach of Article 1 of
Protocol no. 1 (P1-1) and a violation of Article 6 (Art. 6) of the
Convention on the ground of the impossibility for it for almost ten
years to obtain from the Italian authorities indications as to the
changes on its factory building required in order to bring it into
compliance with the anti-seismic legislation. It also complains that
numerous criminal complaints it had filed against inter alia the Chief
Engineer of the Construction Office and the President of the Regional
Council of Tuscany were not pursued.
As concerns the impossibility for the applicant company to start
its manufacturing activity because of the alleged defects in its
structure, the Commission observes that the construction of the factory
shed at issue was entrusted to a constructor, which, according to the
applicant company, committed several construction errors which led, on
the applicant company's initiative, to the declaration of unfitness for
use and dangerousness and thus to the blocking of the works in January
1987. The Commission further observes that in April 1987 the applicant
company instituted civil proceedings against the constructor requesting
it to be ordered to carry out all the works and amendments necessary
to bring the factory building into compliance with the law.
The Commission notes that the object of these proceedings
coincides with the object of the present application; it considers
that, apart from the conduct of the administrative authorities, should
the applicant company be successful, the constructor would have to
carry out the necessary works and would be liable for any prejudice
suffered by the applicant company.
However, the Commission notes that these proceedings are
currently pending before the Court of Cassation; it considers therefore
that the applicant company cannot claim to be a victim within the
meaning of Article 25 (Art. 25) of the Convention at this stage of the
proceedings. This part of the application is thus premature and must
be rejected in pursuance of Article 27 para. 2 (Art. 27-2) of the
Convention.
As regards the applicant company's complaint that its case did
not receive a fair hearing within the meaning of Article 6 (Art. 6) of
the Convention given that the criminal complaints it had filed were not
pursued, the Commission recalls that under Article 6 para. 1 (Art. 6-1)
of the Convention everyone is entitled, in the determination of either
his civil rights and obligations or of any criminal charge against him,
to a fair hearing by a tribunal. However, the Commission also recalls
its established case-law to the extent that the right of access to
court does not include a right to have criminal proceedings instituted
against third persons (cf. amongst others No. 9777/82, Dec. 14.7.83,
D.R. 34, p. 158).
It follows that this aspect of the complaint is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
2. As regards the applicant's complaint under Article 8 (Art. 8) of
the Convention relating to the adverse consequences to his reputation
of the declarations made by the President of the Region Tuscany to the
press, the Commission is not required to decide whether or not this
complaint discloses any appearance of a violation of the Convention
as it is inadmissible for the following reasons.
The Commission recalls that, pursuant to Article 26 (Art. 26) of
the Convention, it can only deal with a matter after all domestic
remedies have been exhausted and within a period of six months from the
date on which the final decision was taken.
In the present case, even assuming that Article 8 (Art. 8) is
applicable in the present case, that the President of the Regional
Council was acting in his capacity as civil servant and that his
conduct can thus engage the responsibility of the State, and that the
applicant company has exhausted all the domestic remedies which were
available to it under Italian law, the Commission observes that the
observations which the President of the Region Tuscany made to the
press date back to 28 July 1993, which is more than six months before
the filing of the present application (No. 20730/92, Dec. 18.10.95,
unpublished).
It follows that this complaint must be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
3. Finally the Commission has examined the applicant company's
complaint that it is being prevented from starting its manufacturing
activity in a safe environment. However, it considers that, in so far
as it has been substantiated, this complaint does not disclose any
appearance of a violation of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy