SECOND SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 36811/97
by BIELECTRIC SRL
against Italy
The European Court of Human Rights (Second Section), sitting on 4 May 2000 as a Chamber composed of
MrC.L. Rozakis, President,
MrA.B. Baka,
MrB. Conforti,
MrG. Bonello,
MrsV. Strážnická,
MrP. Lorenzen,
MrsM. Tsatsa-Nikolovska, judges,[Note1]
andMrE. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 19 June 1997 and registered on 8 July 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant company,
Having regard to the parties’ oral submissions at the hearing on 4 May 2000,
Having deliberated, decides as follows:
THE FACTS
The applicant is a company having its registered office in Ospedaletto (Pisa) and acting through its legal representative and managing director. It has been in liquidation since 29 May 1995.
Before the Court, it is represented by M. Mario Tuccillo, lawyer in Novara (Milano).
A.Particular circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
a)The administrative phase
In 1983, the applicant company commissioned company X to build a 1,400 m² factory building in Ospedaletto (Pisa). On 14 June 1983 company X filed with the Pisa Construction Office (Genio Civile) the report on new construction works (denuncia di nuova opera). On 16 November 1983 the construction works were commenced.
On 4 April and 20 June 1986, the managing director of the applicant company - hereinafter B - acting in the capacity of director of the construction works (direttore dei lavori), reported to the Pisa Construction Office 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 12 November 1986 B. reported in his capacity as sole managing director of Bielectric to the Pisa Construction Office the existence of certain defects in the structure of the building and requested that they inspect the building. On the same day, B. filed with the Pisa Construction Office, in his capacity as director of the construction works, the final 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 building and reported to the Pisa Town Council that its structure presented certain important construction errors.
On 24 January 1987, the Pisa Construction Office inspected the building 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 building was dangerous and unfit for use (inagibile) and therefore warned B. not to continue the works on the building 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, B. filed a criminal complaint against 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 B. that company 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 Law 1086/71 no certificate of fitness for occupation (licenza di abitabilità) could be issued by the Pisa Town Council.
B. filed numerous criminal complaints with the Pisa Magistrate's Office and the Pisa Public Prosecutor's Office with a view to forcing X to provide the executive drawings. They were all dismissed.
On 23 February 1993, the criminal complaint of 30 March 1989 was filed away by the Pisa Judge for Preliminary Investigations, who held that the conduct of company X did not constitute any fraud but simply 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 Regional Technical Office (Ufficio tecnico della Regione) filed a criminal complaint against the responsible engineer of company X for violations of the relevant anti-seismic legislation. On 4 November 1993 this complaint was dismissed by the Pisa Judge for Preliminary Investigations as being time-barred.
As a consequence of the dismissal of 23 February 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.
On 15 April 1993, having learned of the decision of the Pisa judge for Preliminary Investigations on filing away of 23 February 1993, B. invited the Pisa Construction Office to proceed according to the law, if the factory building was not in compliance with the anti-seismic legislation.
On 25 May 1993, B. filed a criminal complaint with the Pisa Public Prosecutor against the Chief Engineer of the Pisa Construction Office for giving false information to the Public Prosecutor on 20 June 1991 and 23 June 1992 and for 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 allegedly given on 23 June 1992). After the hearing, by a decision of 19 October 1994 the Judge for Preliminary Investigations dismissed the remainder of the complaint.
On 13 July 1993 the Pisa Construction Office informed the President of the Regional Council that the defects of the factory building did not raise problems as to its fitness for use.
On 28 July 1993 the President of the Regional Council of Tuscany informed the press of having filed a criminal complaint against B. for insult (oltraggio). This complaint was filed away on 4 November 1993.
In a report filed on 5 October 1994, the Technical Administrative Regional Committee (Commissione Regionale Tecnico Amministrativa) of Tuscany Region excluded the existence of substantive violations of the anti-seismic legislation but pointed out that certain documents had not been filed with the Pisa Construction Office, which constituted a formal violation of that law. By a decree of 6 October 1994 the President of the Regional Council of Tuscany subsequently ordered the applicant company and company X to file the lacking documents with the Pisa Construction Office within thirty days. Both the applicant company and company X applied to the Administrative Regional Court of Tuscany. On 16 January 1996 the applicant company filed the request for the case to be discussed (istanza di prelievo). These proceedings are still pending.
On 19 December 1994 the Pisa Construction Office informed the President of the Regional Council that company X had filed the documents. On the basis of the opinion of the Technical Administrative Regional Committee of Tuscany Region, in a decree (No. 135) of 17 March 1995 the President of the Regional Council acknowledged that his previous order of 6 October 1994 had been complied with and that the obligations under Article 17 of Law 64/74 had been complied with.
On 6 February 1995 the applicant company reported to the Mayor pursuant to Law No. 1086/71 that the documents filed by company X were incomplete and that there existed certain defects in the construction.
As a consequence, after inspecting the factory building on 9 March 1995, on 13 March 1995 the Pisa Town Council ascertained that certain executive plans had not been deposited and that the structure presented important differences from the original plans. It concluded that there appeared to be a violation of Article 4 Law 1086/71 and it accordingly informed the applicant company, the President of the Regional Council of Tuscany and the Pisa Construction Office as well as the Prefect and the Magistrate.
Further documents were filed by company X, consequent on which the Pisa Town Council stated on 27 June 1995 that the documentation relating to the construction was almost in conformity with Law No. 1086/71 though certain documents were still lacking.
On 25 July 1995, however, the Tuscany Region Construction Office informed the President of the Region, the Prefect, the Public Prosecutor and the Mayor that it disagreed with the findings of the Pisa Town Council of 27 June 1995.
B. 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.
B. applied to 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, which was in breach of Law No. 1086/71, 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.
Consequent on a further report dated 12 February 1997 from the Pisa Fire Brigade, which had inspected the building and warned the Town Council about its danger for the public safety, the mayor of Pisa on 28 February 1997 ordered the applicant company, the director of the construction works and company X to execute consolidation works immediately; to eliminate all the defects listed in the Fire Brigade's above-mentioned report and to maintain an inaccessible corridor of at least ten meters all around the building. This order was immediately enforceable.
On 6 March 1997 an expert who had been requested by B. to carry out a further verification on the building, completed his report confirming that the factory building was not in accordance with the anti-seismic legislation. This report was submitted to the Pisa Construction Office, Town Council, the applicant company and company X by the expert on 22 March 1997, and again to the Pisa Town Council by B. on 25 March 1997.
On 9 April 1997 company X filed an application with the Tuscany Regional Administrative Court (RAC) asking that the order issued on 28 February 1997 by the mayor of Pisa be provisionally suspended and annulled.
On 22 May 1997 the Tuscany RAC granted the request and suspended the provisional enforcement of the above order. The proceedings are currently pending.
In the meantime, on 2 May 1997 the Pisa Mayor ordered both the applicant company and company X to install adequate monitoring equipment in the factory building, so that it would be possible to proceed within six months with the assessment of its conditions and safety.
A further criminal complaint filed by B. was filed away by the Pisa Judge for the Preliminary Investigations on 11 March 1997, on the ground that the President of the Tuscany Region had explained that the factory building was not in breach of the applicable anti-seismic legislation. A request to reopen the investigations lodged by the General Public Prosecutor was dismissed on the same ground on 21 April 1998.
A further complaint was filed away by the same judge on 23 September 1998.
On 16 October 1998 the Pisa Town Council issued in respect of the applicant company and company X an order, in which a number of structural defects were listed, to the effect that the factory building should be either demolished or brought into compliance with the applicable legislation within ninety days. This order was based on Articles 7 § 2 and 8 § 1 (e) of Law No. 47/1985.
On 23 December 1998 company X applied to the Tuscany RAC seeking the suspension and annulment of the above order. On 12 January 1999 the RAC granted this request. The proceedings are currently pending.
On 24 January 2000 the Tuscany Region initiated proceedings pursuant to Article 25 of Law No. 64/74 on the basis of the order issued by the Pisa Town Council on 16 October 1998. The applicant company was invited to make submissions in this respect.
On the same day, the applicant company was notified by the Department of the Presidency and for Legal Affairs of the Tuscany Region of an opinion issued on 29 November 1999 by a legal advisory committee to the effect that the President of the Tuscany Region is under an obligation to proceed pursuant to Article 25 of Law No. 64/74 irrespective of whether he has been formally informed of the filing away of the relevant criminal complaints by the Magistrate.
b)The civil proceedings
On 9 April 1987, the applicant company summoned company X to appear before the Arezzo Court, requesting X to 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. The preparation of the case for trial began at the hearing of 3 June 1987, when the court ordered that an expert opinion be carried out on the factory building and ended at the hearing of 2 November 1988, when the parties made their final submissions. The hearing before the court was held on 4 October 1989.
In a judgment of the same date, filed with the Registry on 16 November 1989, the Arezzo Court held that the construction of the factory building 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 aesthetic. It ordered X to replace certain parts in the factory building.
On 21 June 1990, the applicant company lodged an appeal against this judgment before the Florence Court of Appeal. It requested a reassessment of the evidence and new evidence with a view to establishing the existence of serious structural defects in the factory building. The applicant company further requested that company X reimburse the costs of the replacement of certain parts of the factory building. The preparation of the case for trial began at the hearing of 2 October 1990 and, after a hearing held on 15 January 1991, it ended at the hearing of 2 April 1991, when the parties made their final submissions. On 18 February 1993 the applicant company filed written submissions with the court of appeal claiming that the works carried out by company X were in breach of the applicable anti-seismic legislation The appeal was heard on 26 February 1993.
In a judgment of the same date which was filed with the Registry on 13 May 1993, the Florence Court of Appeal confirmed that the contract entered into by the parties was a sale and not a work under contract, and held that the defects in the factory building were merely aesthetic and did not affect the structure. It further held that the applicant company had failed to prove that the failure by X to file the executive plans with the Construction Office had caused any financial prejudice to it and that in any event this issue had not been raised in the proceedings of first instance. Further, the Court of Appeal held that the defects pointed out by the expert were not serious (and in any event the applicant company had failed to raise this point in the proceedings of first instance) and that the other alleged defects in the structure were visible and should thus have had denounced within eight days of the delivery of the factory building, which had not been done.
Further, the Court of Appeal held that X could not be held responsible for the financial prejudice caused by the impossibility of using the factory building and the ensuing impossibility for the applicant company to start its manufacturing activity, given that the order by the competent administrative authority not to use the factory building had been caused by the wrong claim by the applicant company that the factory building was at risk of falling down and thus dangerous. The Court added that in any event X could not be held responsible for the wrong assessment made by the competent authority.
Finally, the Court of Appeal refused the applicant company's request that company X reimburse the costs of the replacement of certain parts of the factory building on the ground that this request had not been submitted to the first instance court.
On 12 May 1994, the applicant company lodged an appeal on points of law before the Court of Cassation underlining in the first place that the fire brigade had recently confirmed that the factory building was dangerous. Further, it claimed inter alia that the defects were serious and in breach of the anti-seismic legislation, and that company X was to be held responsible for the ensuing damages, including the impossibility of starting the applicant company's manufacturing activity. It underlined that its request for the reimbursement for the replacement of certain parts of the factory building had been duly submitted to the court of first instance.
The Court of Cassation set the public hearing before it for 16 October 1996. On 25 July 1996 an attempt was made to serve notice of the date of the hearing on the applicant company at the chosen address of its lawyer. However, the latter having in the meantime died, the notification could not be effected.
Notice of the date of the hearing was left for the applicant company in the Registry of the Court of Cassation on 19 August 1996.
The applicant company did not learn about the date of the hearing and did not appear before the Court of Cassation at the hearing of 16 October 1996. Nor did company X appear at the hearing. The Court of Cassation heard addresses from the General Attorney.
By a judgment delivered on the same day, filed with the Registry on 9 April 1997, the Court of Cassation quashed the decision of the Florence Court of Appeal of 26 February 1993 only insofar as it related to the refusal to award to the applicant company compensation for the replacement of certain parts of the factory building and referred the matter back before the Florence Court of appeal. The Court of Cassation confirmed the remainder of the appealed judgment, inter alia on the ground that the applicant company had failed to raise the question of the violation of the anti-seismic legislation before the lower courts.
On 6 April 1998 the applicant company filed with the General Attorney attached to the Court of Cassation a complaint against the judges of the Court of Cassation who had drafted the above judgment, on the ground that the statement that the applicant company had failed to raise the question of the violation of the anti-seismic legislation before the lower courts was contradicted by the documents and submissions contained in the case-file.
On 2 August 1997 the applicant company resumed proceedings before the Florence Court of Appeal. Three hearings were held before it; the closing hearing was scheduled for 4 April 2000.
B.Relevant domestic law
Relevant provisions on construction works
According to Regional Law No. 88/82, all building plans must be filed with the Construction Office before the beginning of the construction works; the Construction Office carries out sample controls of the substance of the plans.
Competence to monitor compliance of the constructions with Law No. 1086/71 about regulations on cement constructions (Norme per la disciplina delle opere in conglomerato cementizio, normale e precompresso ed a struttura metallica) is vested in the mayor, who avails himself of the assistance of the police and the technical staff of the municipality.
Any competent agent of the Municipality who ascertains a violation of the procedural provisions of Law No. 1986/71 reports to the Mayor who must inform the Magistrate and the Prefect. The Prefect, after investigating into the matter, issues an order to the effect that the works should be suspended until there is full compliance with Law No. 1086/71. The Mayor is competent to ensure compliance with the order.
Under Article 4 of Law No. 1086/71, detailed technical documentation concerning the construction must be filed with the Construction Office before the construction works are commenced.
Under Article 17 of Law No. 64/74 about regulations on constructions in earth-quake prone areas (Provvedimenti per le costruzioni con particolari prescrizioni per le zone sismiche) detailed technical documentation must be filed with the mayor, the technical office of the Region and with the Construction Office before the construction works are started.
Any competent agent of inter alia the police, of the technical office of the Ministry for Public Works, and of the regional, provincial and municipal construction offices upon detecting a violation of Law No. 64/74 must immediately report to the competent regional or municipal construction office. The responsible engineer of the said office reports to the competent magistrate and orders that the construction works be suspended. Competence to monitor compliance with this order is vested in the mayor.
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.
Competence to issue directions as to the changes to be made to 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. When instead the criminal charge related to the violation is dropped on grounds of an amnesty or as being time-barred, this competence is vested, under Article 25 of Law No. 64/74, in the President of the Region.
Under Articles 7 § 2 and 8 (e) of Law No. 47/85, where substantive changes have been made to the construction in respect of the original plan the mayor orders its demolition.
Through circular No. 1977 of 23 October 1979 the Ministry of Public Works pointed out that, following the decision to suppress the Municipal Construction Offices (Genio Civile), their competencies would be transferred to the relevant Regional Technical Offices.
Relevant provisions on notifications
Under Article 141 of the code of civil procedure, “the notification cannot be effected at the chosen address of the representative if the latter has died.”
As regards proceedings before the Court of Cassation, under Article 366 of the code of civil procedure “if the applicant has failed to choose an official address for notifications in Rome, notifications are carried out by filing in the Registry of the Court of Cassation.”
COMPLAINTS
The applicant company complains:
1.under Article 1 of Protocol no. 1 about the impossibility for it to bring its factory building into compliance with the anti-seismic regulations and therefore to start its manufacturing activity;
2.under Article 6 § 1 about the length of the civil proceedings instituted against company X;
3.under Article 6 § 1 about the alleged unfairness of the civil proceedings insofar as the applicant company did not appear at the hearing before the Court of Cassation due to the failure to inform its lawyers of the date of the hearing.
THE LAW
1.The applicant company complains in the first place that it is prevented from starting its manufacturing activity on account of the failure by the administrative authorities, namely the Tuscany Region, to issue directions as to what changes need to be done in order to bring its factory building into compliance with the anti-seismic legislation.
The applicant company invokes Article 1 of Protocol No. 1 to the Convention, which provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Under the Court’s case-law, Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules (see the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, pp. 29-30, § 37). The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, must be construed in the light of the general principle laid down in the first rule (see the Immobiliare Saffi v. Italy judgment of 28 July 1999, § 44, to be published in the Court’s official reports).
The Court must first determine which of the above rules is applicable in the present case, if any.
The applicant company maintains that it is prevented from starting its manufacturing activity on account of the failure of the President of the Regional Council to issue directions in relation to the applicable anti-seismic legislation.
The Government instead maintain that the impossibility for the factory to start its activity is not due to the authorities’ inertia or conflicting views as to whether the factory is fit for use, but to the failure by the applicant company and the constructor to eliminate the defects which the fire brigade has ascertained. At the oral hearing, the Government argued that, even assuming that the Tuscany Region has failed to act in accordance with its legal obligations, the applicant company has failed to apply to the administrative courts against this inertia and has thus failed to exhaust the domestic remedies which were available to it under Italian law.
The Court notes at the outset that there appear to be at least two different sets of regulations with which the factory building must comply: Law No. 64/74, about the construction requirements in seismic areas, which vests in the Magistrate or the President of the Regional Council the relevant administrative responsibilities, and Law No. 1086/71 about the requirements of cement constructions, which vests the relevant administrative responsibilities in the Mayor. The applicant company maintains that, pursuant to circular of the Ministry of Public Works No. 1977 of 1979, in seismic areas even the responsibilities under Law No. 1086/71 are vested in the President of the Regional Council. The Government disagree, and point out that the structural defects in the factory building do not come within the scope of responsibility of the President of the Regional Council. The Court notes that the above mentioned circular has merely transferred the specific competencies of the abolished Municipal Construction Offices (Genio Civile) to the relevant Regional Technical Offices. Further, it observes that the Mayor has issued inter alia two demolition orders pursuant to Law No. 47/1985, which orders are addressed to the applicant company and to the constructor. It does not appear that the competence of the Mayor to issue such orders has been challenged before the Regional Administrative Court: accordingly, the Court cannot accept the applicant company’s allegation that the Mayor is not competent to do so.
The Court further observes that it was always the applicant company’s representative, B, who took the initiative to raise the issue of non-compliance of the factory building with Law No. 64/74. Indeed, the President of the Region never agreed with him and never stated that the factory building was not in compliance with that piece of legislation - with the exception of minor formal violations in relation to the documentation which needed to be filed with the construction office. Nor did the Tuscany Region ever prevent the applicant company from using the factory building or starting its manufacturing activity: the Tuscany Region therefore never “interfered” with the applicant company’s right to the peaceful enjoyment of its possession.
It is true that the applicant company complains in substance not of action but of a lack of action by the Tuscany Region: it claims that it has an interest in having a seism-safe factory building, irrespective of whether or not the Tuscany Region finds out about the defects in the structure.
The Court considers that a State may have positive obligations where there is a direct and immediate link between the measures sought by an applicant and the latter’s enjoyment of his possessions (see, mutatis mutandis, the Botta v. Italy judgment of 24 February 1998, Reports of judgments and Decisions 1998, § 34). In the present case, the applicant company has failed to prove that such link exists. The applicant company could have carried out the consolidation works itself and consequently start its manufacturing activity with no further delays. In this respect, the Court agrees with the Government that, insofar as the Region has not taken any measures with a view to preventing the applicant company from using its factory building, the existence of violations of the anti-seismic legislation is a matter between the applicant company and the constructor. The applicant company however failed to raise this matter before the Arezzo Court, which caused the upper courts to reject this claim.
In conclusion, the Court considers that there has been no interference by the Regional authorities with the applicant company’s right to the peaceful enjoyment of its possessions, nor can any further positive obligations be said to be incumbent on the Tuscany Region in order to allow the applicant company to enjoy its possessions.
Having regard to the above conclusions, the Court does not consider it necessary to rule on the Government’s objection as to the exhaustion of domestic remedies.
The Court notes that, indeed, the applicant company has been prevented from using its factory building by the numerous orders issued by the Pisa Mayor.
Although the applicant company does not in fact complain expressly about them, the Court notes that they aimed at ensuring that the factory building was in compliance with the applicable regulations on the safety of buildings: they undoubtedly amounted to control of the use of property within the meaning of the second paragraph of Article 1. Given that these orders aimed at avoiding risks for the public safety, they clearly had a legitimate aim in the general interest, as required by the second paragraph of Article 1.
The Court reiterates in this respect that an interference, particularly one falling to be considered under the second paragraph of Article 1 of Protocol No. 1, must strike a “fair balance” between the demands of the general interest and the requirements of the protection of the individual's fundamental rights and there must be a reasonable relationship of proportionality between the means employed and the aim pursued.
In the present case, the Court does not find the measures in question to be disproportionate: the adaptations needed to meet the requirements of Law No. 1086/71 have been specified by the Town Council and the applicant company could have carried them out itself, and consequently start its manufacturing activity with no further delays. It could still do it. It is true that the applicant company considers that the constructor ought to have been liable for these works; the Court notes however that this is a matter between two private parties which has already been decided by the civil courts and which cannot be the object of a re-examination at this stage.
The Court further considers that the conflicting views of the different administrative authorities about whether or not the factory building is in compliance with the anti-seismic legislation, though regrettable, have not influenced the applicant company’s property rights in a disproportionate manner.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.
2The applicant company further complains under Article 6 § 1 of the Convention about the length of the civil proceedings.
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal ...”
The proceedings at issue started on 9 April 1987, and are currently pending before the Florence Court of Appeal. They have thus lasted approximately thirteen years to date, for four levels of jurisdiction.
The Government concede that the proceedings have been lengthy, but argue that this was due to the complexity of the case, namely the need for expert opinions. The quashing by the Court of Cassation of part of the judgment was due to the change by the applicant company of its claims. They conclude that the length of the proceedings has not been unreasonable.
The applicant company maintains that, despite the complexity of the case, the duration of the proceedings has exceeded the reasonable time.
The Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
3.The applicant company finally complains under Article 6 § 1 of the Convention that it was not duly informed of the date of the hearing before the Court of Cassation and therefore was not represented at that hearing.
The Court however notes that notice of the date of the hearing was duly served on the applicant company at the chosen address of one of its lawyers. The latter having died, pursuant to Article 141 of the code of civil procedure the notification could not be carried out. The notification was thus carried out in pursuance of Article 366 of the code of civil procedure.
The Court considers that the applicant company, after the death of its lawyer, should have anticipated that possible notifications could no more be effected at the lawyer's address. It was thus for the applicant company to check with the Registry of the Court of Cassation whether a date had been fixed for the hearing (see, mutatis mutandis, Eur. Comm. H.R., no. 23569/94, B.F. and J.M. v. Italy, dec. 27 June 1996, unpublished).
It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court,
unanimously,
DECLARES ADMISSIBLE, without prejudging the merits of the case, the applicant company’s complaint about the length of the civil proceedings;
unanimously,
DECLARES INADMISSIBLE the applicant company’s complaint about the fairness of the civil proceedings;
by a majority,
DECLARES INADMISSIBLE the applicant company’s complaint about the impossibility for it to bring its factory building into compliance with the anti-seismic legislation.
Erik FriberghChristos Rozakis
RegistrarPresident
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