FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 40143/98
by Silvia ZILLI and Flavio BONARDO
against Italy
The European Court of Human Rights, sitting on 18 April 2002 as a Chamber composed of
MrC.L. Rozakis, President,
MrG. Bonello,
MrP. Lorenzen,
MrsN. Vajić,
MrE. Levits,
MrV. Zagrebelsky,
MrsE. Steiner, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 9 January 1998 and registered on 9 March 1998.
Having deliberated on 18 April 2002, decides as follows:
THE FACTS
The applicants, Silvia Zilli and Flavio Bonardo, are Italian nationals, who were born in 1950 and 1948 respectively and live in Borgofranco d’Ivrea.
The facts of the case, as submitted by the applicants, may be summarised as follows.
In 1981 the applicants bought a house in Borgofranco d’Ivrea.
It appears that public authorities were aware of the geological reports of 1979, 1985 and 1986, according to which the applicants’ house was situated in an area affected by hydrogeological upheaval.
In 1986 the applicants applied to the Mayor of Borgofranco d’Ivrea for a building permit to renovate the house which was granted in 1987.
In 1991 the applicants and their three children moved to their partially renovated house.
By a report of 20 June 1994 the Geologic Regional Service informed the local authorities of Borgofranco d’Ivrea of a large landslide which had occurred near the applicants’ house on 18 May 1994, of the danger of possible further landslides and of the necessity to deforest the area, clean the river bed and take immediate measures in order to avoid further damages.
Between 5 and 6 November 1994, during a flood, another large landslide occurred in the same area.
According to the medical report of 28 November 1995, the child D., four years old at the time of the facts, as well as the first applicant, suffered serious shock following the event.
On 6 November 1994 the Mayor of Borgofranco d’Ivrea issued an evacuation order concerning the houses near the area struck by the landslide and the applicants and their children were obliged to leave their house.
The public authorities issued several orders to restore the areas, but it appears that they were never completely executed.
In a report of 27 December 1994 the Geologic Regional Service pointed out that the measures suggested in the report of 20 June 1994 had not been completely adopted and suggested the adoption of a plan to make the area more secure.
On 6 January 1995 the applicants decided to return to their house together with their children as the room where they had been living was too small for five people and their children missed their home environment. The applicants informed the Mayor of Borgofranco d’Ivrea of their decision.
On 30 June 1995 the City Council of Borgofranco d’Ivrea adopted a plan which provided for the execution of measures to make the area more secure. The plan was approved by the Regional Council on 28 September 1995.
On 27 November 1995 the Mayor of Borgofranco d’Ivrea upheld the evacuation order issued on 6 November 1994.
On 29 June 1997 another landslide occurred.
On 13 May 1999 a Regional Commission was constituted to supervise the execution of the works in the areas struck by the landslides provided by the plan of 30 June 1995 and of other measures suggested by the Commission itself.
In a report of 20 September 2000 the Commission pointed out that the necessary measures to make the area more secure had not been completely executed.
In order to remedy the default of the authorities, since 1995 the applicants have lodged several criminal proceedings against the public authorities. These proceedings were discontinued and the applicants’ requests of reopening were rejected.
In 1997 the applicants claimed reimbursement for damages suffered after the landslide of 6 November 1994. These proceedings are pending before the Ivrea civil Court.
Since February 2001 the applicants have been applying to the local authorities for reimbursement of the renovation expenses of their house in order to be able to buy another one. The local authorities have not replied.
COMPLAINTS
1. The applicants complain under Article 5 § 1 of the Convention about the right to security of person insofar as the public authorities did not take measures in order to make the area concerned by the landslides near their house more secure.
2. The applicants complain under Article 6 § 1 of the Convention about the discontinuance of the criminal proceedings and the rejection of the requests of reopening.
3. The applicants complain about the persistent danger of landslides, the inactivity of the public authorities and the evacuation order. They complain in particular about violations of their right to respect for private and family life and to peaceful enjoyment of possessions. They invoke Article 8 of the Convention, Article 1 of Protocol No. 1 to the Convention and Article 2 of Protocol No. 4 to the Convention.
THE LAW
1. The applicants complain under Article 5 § 1 of the Convention about the right to security of person insofar as the local authorities did not take any measures in order to make more secure the area concerned by the landslides.
Article 5 § 1 of the Convention, insofar as it is relevant, provides as follows:
“Everyone has the right to liberty and security of person ”.
The Court recalls that the primary concern of Article 5 § 1 of the Convention is protection from arbitrary deprivation of liberty. The notion of security of person has not been given an independent interpretation [see Güven v. Turkey (dec.) no. 31847/96, unpublished]. In this respect, the Court points out that the insecurity of the applicants’ personal circumstances arising from the danger of landslides does not fall within the notion of “security of person” for the purpose of Article 5 § 1 of the Convention (see, mutatis mutandis, Güven v. Turkey, cited above).
It follows that this complaint 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.
2. The applicants further complain under Article 6 § 1 of the Convention about the discontinuance of the criminal proceedings and the rejection of the requests of reopening.
Article 6 § 1 of the Convention, insofar as it is relevant, provides as follows:
“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”.
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 judgement of 29 October 1991, Series A no. 212-A, p.14, § 29) nor any right to have a case reopened (see Miliani v. France, no. 32916/96, decision of 2 July 1997, D.R. 90, p. 161).
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.
3. The applicants further complain about the persistent danger of landslides, the inactivity of the public authorities and the evacuation order. They allege violation of their right to respect for private and family life and peaceful enjoyment of possessions. In this respect they invoke Article 8 § 1 of the Convention, Article 1 of Protocol No. 1 to the Convention and Article 2 of Protocol No. 4 to the Convention.
The Court considers that this part of the application must be examined under Article 8 § 1 of the Convention and Article 1 § 1 of Protocol No. 1 to the Convention which, insofar as they are relevant, respectively provide as follows:
“Everyone has the right to respect for his private and family life, his home and his correspondence”.
“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 Rules of the Court, to give notice of this part of the application to the respondent Government.
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.
Erik FriberghChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy