FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 51631/99
by Domenico Pio NARDELLI and Others
against Italy
The European Court of Human Rights, sitting on 15 October 2002 as a Grand Chamber composed of
SirNicolas Bratza, President,
MrM. Pellonpää,
MrA. Pastor Ridruejo,
MrsE. Palm,
MrM. Fischbach,
MrV. Zagrebelsky,
MrS. Pavlovschi, judges,
and Mr M. O’ Boyle, Section Registrar,
Having regard to the above application introduced with the European Court of Human Rights on 10 February 1999,
Having deliberated, decides as follows:
THE FACTS
The applicants, Domenico Pio Nardelli, Maria Gabriella Nardelli, Daniela Nardelli and Consiglia Aurillo, are Italian nationals, who were born in 1966, 1965, 1967 and 1938 respectively and live in Atina Inferiore.
The facts of the case, as submitted by the applicants, may be summarised as follows.
On an unknown date, the applicants inherited land and the house where they live in Atina Inferiore from Antonio Nardelli.
1. The construction of the road network along the south boundary of the applicants’ land.
On 7 May 1984 a large earthquake occurred near the applicants’ house which was seriously damaged.
On an unknown date in 1984 the Atina Inferiore City Council declared that it was in the public interest to expropriate the area along the south boundary of the applicants’ land in order to construct a road network.
In October 1984, the local authorities of Atina Inferiore made excavations on the applicants’ land.
On 16 and 17 January 1985 two large landslides occurred in the area concerned by the excavations. The applicants’ house was seriously damaged.
By a judgment of 26 March 1985 the Consiglio di Stato overruled the declaration issued by the Atina Inferiore City Council of 1984 concerning the expropriation of applicants’ land.
On 21 May 1985 Antonio Nardelli claimed reimbursement for damages before the Cassino Court.
By a judgment of 13 May 1988, the Court granted the application. According to technical reports the damage should be considered as caused by the excavations made by the local authorities.
After this judgment the local authorities re-started the excavations and the applicants’ property was further damaged.
On 3 November 1989 Antonio Nardelli claimed reimbursement for damages suffered as a result of re-starting the excavations. The applicants constituted themselves as parties to the proceedings which are still pending.
2. The construction of the road along the north boundary of applicants’ land.
On 13 December 1974 the Atina Inferiore City Council declared that it was in the public interest to expropriate the area along the north boundary of the applicants’ land in order to construct a road. On 15 October 1975 the City Council stated that the areas should be urgently occupied for a temporary period (“occupazione temporanea e d’urgenza”) in order to construct the road, but did not take physical possession of the land.
On 12 March 1976 the Atina Inferiore City Council upheld the declaration of 15 October 1975. In the same year the local authorities constructed the road.
In April 1996, there was a landslide on the road near the applicants’ house. According to several technical reports, the landslide was due to the bad execution of the works.
According to a report of the firemen, by an order of 7 June 1996 the Mayor of Atina stated that the part of applicants’ house near the area affected by the landslide was uninhabitable.
On 26 June 1999 the applicants claimed reimbursement of the damage suffered as a result of the landslide. The proceedings are still pending.
3. The issue of evacuation orders and the requests for accommodation
Following the landslide of April 1996, on 11 March 1997 the Mayor of Atina ordered the evacuation of the applicants’ house, but it was not carried out.
Following the issue of the evacuation order Antonio Nardelli repeatedly applied to the public authorities for the provision of accommodation.
By a resolution of 18 October 1998 the Atina Inferiore City Council adopted a plan to restore the areas affected by the landslides, including the applicants’ land, stating that the works should start within six months.
By a resolution of 11 October 1999 the Atina Inferiore City Council stated that the areas affected by the resolution of 18 October 1998 should be urgently occupied for a temporary period (“occupazione temporanea e d’urgenza”) in order to restore them.
On 13 October 1999 the resolution was notified to the applicants. Nevertheless the Atina Inferiore City Council did not take physical possession of the land.
By a note of 15 December 1999 the Civil Defence Department (“Dipartimento della Protezione Civile”) recommended the local authorities to provide accommodation for the applicants.
On 15 December 1999 the Mayor of Atina upheld the evacuation order issued on 11 March 1997 as there was a continuing danger of landslides. This order was also not carried out.
By a note of 15 December 1999 the Prime Minister’s Office (“Presidenza del Consiglio dei Ministri”) asked the local authorities to provide accommodation for the applicants.
On 22 December 1999 the applicants further applied to the local authorities for accommodation.
On 17 January 2000 the applicants applied to the Cassino Court for an order that the local authorities should urgently provide accommodation.
By a decision of 31 October 2000 the Court declared the request inadmissible. It held that, taking into account that the public authorities enjoyed a margin of appreciation in their decisions, they could not be ordered to provide accommodation.
In the meantime, on 3 August 2000 the Prime Minister’s Office re-applied to the local authorities for accommodation for the applicants. It pointed out that Italian law provided that in an emergency the Mayor should take the necessary measures to assist the persons affected.
By a resolution of 2 February 2001 notified to the applicants on 4 May 2001, the Atina Inferiore City Council re-stated that the areas affected by the landslides should be occupied in order to restore them.
On 29 May 2001 the Atina Inferiore City Council took physical possession of the land.
In a report of 15 April 2002 the Geologic Regional Service pointed out that the necessary measures to restore the areas affected by the landslides had not yet been completely executed.
4. Criminal proceedings
In order to remedy the default of the authorities, criminal proceedings were lodged against the Mayor of Atina Inferiore for neglect of duty (“omissione d’atti d’ufficio”) and for aggravated abuse of official authority (“abuso d’ufficio”), against the Prefect of Police of Frosinone and against the judges who dealt with these proceedings as they had all been discontinued.
COMPLAINTS
1. The applicants complain about the persistent danger of landslides, the inactivity of the local authorities insofar as they have not taken measures in order to make the area affected by the landslides near their house more secure and have not provided for accommodation after the issue of evacuation orders. In this respect they invoke Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention.
2. The applicants further complain under Articles 6 and 13 of the Convention about the discontinuance of the criminal proceedings.
THE LAW
1. The applicants complain about the persistent danger of landslides, the inactivity of the local authorities and the refusal by the local authorities to provide for accommodation after the issue of the evacuation orders. They invoke Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention which, insofar as they are relevant, provide as follows:
Article 8:
“Everyone has the right to respect for his private and family life, his home and his correspondence”.
Article 1 of Protocol no 1:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions”.
The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance of the Rule 54 § 3 of the Court, to give notice of this part of the application to the respondent Government.
2. The applicants allege a violation of their rights to a fair criminal trial under Article 6 § 1 of the Convention and to an effective domestic remedy under Article 13 as a result of the discontinuation of the criminal proceedings.
Articles 6 § 1 and 13 of the Convention, insofar as they are relevant, provide as follows:
Article 6:
“In the determination of civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
Article 13:
“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court recalls that Article 6 § 1 of the Convention does not guarantee any right to have criminal proceedings instituted against a third person (see Helmers v. Sweden judgment of 29 October 1991, Series A no. 212-A, p.14, § 29).
It follows that the complaint under Article 6 § 1 of the Convention is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected, in accordance with Article 35 § 4 of the Convention.
As to complaint under Article 13 of the Convention, the Court recalls that it confers on everyone whose rights and freedoms guaranteed by the Convention have been violated the right to an effective remedy before a national authority (see Boyle et Rice v. United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52 and Powell and Rayner v. United Kingdom judgement of 21 February 1990, Series A no 172, p. 14, § 31).
Article 13 has no application where the substantive right asserted falls outside the scope of the Convention.
The Court has already decided that the complaint under Article 6 § 1 falls outside the scope of the Convention. It follows that Article 13 cannot be applied to the instant case and that this complaint must be declared inadmissible under Article 35 §§ 3 and 4 of the Convention as being incompatible ratione materiae.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaints concerning the interference with their right to respect for their private and family life and with their right to peaceful enjoyment of possessions.
Declares inadmissible the remainder of the application.
Michael O’BOYLENicolas BRATZA Registrar President
Full & Egal Universal Law Academy