AS TO THE ADMISSIBILITY OF
Application No. 23568/94
by Vittorio GIOFFRE
against Italy
The European Commission of Human Rights (First Chamber) sitting
in private on 28 June 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
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 3 November 1993
by V. Gioffre against Italy and registered on 3 March 1994 under file
No. 23568/94 ;
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 is an Italian national, born in 1931 and currently
residing in Reggio Calabria.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 11 March 1991, the Public Prosecutor of Palmi ordered the
seizure of the applicant's car; at the same time, the Public Prosecutor
informed the applicant that committal proceedings had been initiated
against him on charges of fraud. Several other persons, including the
person from whom the applicant had bought the car, were involved in the
investigations and numerous other cars were seized.
The seizure of the applicant's car took place on 13 March 1991.
On 12 April 1991 the applicant lodged a first application for
release of his car from seizure; this request was dismissed by the
Public Prosecutor by decree of the same day for reasons of preservation
of evidence.
On 3 May 1991 the Public Prosecutor urged the investigating judge
to have the car subject to an expert opinion, pointing out that the car
was being kept in an open air parking and was therefore deteriorating.
On 2 March 1992 the Public Prosecutor requested and obtained a
prorogation until 15 November 1992 of the time-limit for closing the
preliminary investigation.
On 30 July 1992 the applicant lodged a second request to have his
car released from seizure. By decree of 1 October 1992, the Public
Prosecutor rejected it on the grounds that further investigation was
necessary.
On 12 January 1993 the applicant was interrogated by the police.
On 16 July 1993 the investigations against the applicant were
discontinued. He allegedly did not have any knowledge thereof. The
person from whom he had bought the car was committed for trial on
charges of fraud, and the applicant was therefore considered as an
injured.
On 25 October 1993 the applicant sought a third time to have his
car released from seizure; by decree of 21 January 1994, the Public
Prosecutor dismissed this request on the grounds that the car
constituted the corpus delicti and could therefore be subject to future
confiscation.
By decree of 4 May 1994, the applicant was informed, in his
capacity of injured party, that the first hearing was scheduled for
19 May 1994.
On 4 July 1994 the applicant's car was released from seizure; it
was in such bad condition that the applicant had to sell it for a very
low price.
COMPLAINTS
1. The applicant complains of the duration of the seizure of his
car.
In particular, the applicant complains of the refusal by the
Public Prosecutor to release the car from seizure, despite the fact
that it was being kept in an open air parking and was therefore
deteriorating; he maintains that when the car was finally released from
seizure, it had so seriously deteriorated, that it was no more suitable
for its purpose and had therefore to be sold for a very low price.
He alleges a violation of Article 1 of Protocol No. 1 in this
respect.
2. He further complains of the length of the criminal proceedings
instituted against him on charges of fraud.
THE LAW
1. The applicant complains of the duration of the seizure of his
car. He alleges a violation of Article 1 of Protocol No. 1 (P1-1) to
the Convention, that, as far as relevant, reads:
"Every natural and legal person is entitled to the peaceful
enjoyment of his possessions (...)".
However, the Commission is not required to decide whether or not
this complaint discloses any appearance of a violation of the
Convention or its Protocols, as the application is inadmissible for the
following reasons.
The Commission recalls that, pursuant to Article 26 (Art. 26) of
the Convention, "it may only deal with a matter after all domestic
remedies have been exhausted, according to the generally recognised
rules of international law".
In the present case, the Commission observes that the applicant
failed to lodge an appeal against the refusal by the Public Prosecutor
to release the applicant's car from seizure, a remedy which was
available to him under Italian law.
The Commission furthermore considers that in the present case
there are no special circumstances that could absolve the applicant
from exhausting the above remedy.
It follows that the applicant has not met the requirements of
Article 26 (Art. 26) of the Convention as to the exhaustion of domestic
remedies and that this part of the application must be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicant further complains of the length of the criminal
proceedings instituted against him on charges of fraud.
Article 6 para. 1 (Art. 6-1) of the Convention, as far as
relevant, reads:
"In the determination (...) of any criminal charge against him,
everyone is entitled to a (...) hearing within a reasonable time
(...)".
The Commission considers that it cannot, on the basis of the
file, determine the admissibility of this complaint, and that it is
therefore necessary, in accordance with Rule 48 para. 2 (b) of the
Rules of Procedure, to give notice of this complaint to the respondent
Government.
For these reasons, the Commission, unanimously,
DECIDES TO ADJOURN its examination of the complaint
regarding the length of the criminal proceedings;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy