AS TO TH E ADMISSIBILITY OF

Application No. 41877/98

by the PROVINCE OF BARI,

Francesco SORRENTINO

and Teresa MESSENI NEMAGNA

against Italy

The European Commission of Human Rights (First Chamber) sitting in private on 15 September 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

Mrs J. LIDDY

MM L. LOUCAIDES

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

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 29 July 1997 by the PROVINCE OF BARI, Francesco SORRENTINO and Teresa MESSENI NEMAGNA against Italy and registered on 24 June 1998 under file No. 41877/98;

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 first applicant is the Province of Bari , acting through its President.

The latter is also the second applicant, acting on his own account as a citizen of the city of Bari . He is an Italian national, born in 1923 and residing in Bari , where he is also a journalist and writer.

The third applicant is an Italian national, born in 1928 and residing in Bari , where she is a housewife.

Before the Commission, the applicants are represented by Mr Ascanio Amenduni , a lawyer practising in Bari .

The facts of the case, as submitted by the applicants, may be summarised as follows.

A. Particular circumstances of the case

On 27 October 1991, the Petruzzelli Opera House in Bari was almost entirely destroyed by a fire, suspected to be in fact a case of arson.

The above-mentioned theatre is the only opera house in Europe to be owned by private individuals, namely the third applicant (who has a 25% interest) and other members of her family. Nevertheless, a decree of the Minister for Culture dated 12 January 1954 declared the opera house as having national historical and artistic interest. Law No. 800 of 1967 subsequently declared it a "Traditional Opera House" ( Teatro lirico di tradizione ), and Regional Law No. 28 of 1990 a "Musical centre of regional importance" (Centro musicale di interesse regionale ).

On 10 March 1992, the third applicant, together with the other owners, started civil proceedings before the Civil District Court of Bari ( Tribunale civile ) against the manager of the opera house.

By a judgment dated 15 June 1994 and filed with the registry on 7 October 1994, the Court of Bari ordered the manager to pay damages to the extent of some fifty-seven billion lira. The judgment was declared immediately executory , but it is not known what sum was finally paid by the manager on account of damages. At the same time, the court ordered that the file be passed to the District Anti- mafia Attorney ( Procuratore distrettuale antimafia ).

The manager appealed. The first hearing before the Court of Appeal took place on 7 November 1996 ( udienza di precisazione delle conclusioni ). The final decision is to be given at a hearing on 11 December 1998 ( udienza collegiale per la decisione ).

On the other hand, criminal proceedings were also started against the manager, for arson, as well as against some members of a special commission of the Province of Bari responsible for checking the safety of public performances, who were charged with negligence.

On 21 April 1993, the investigating judge ( Giudice per l'indagine preliminare ) ruled that both sets of proceedings be discontinued. On 4 March 1995, this decision was revoked by the Court of Appeal of Bari , which committed the accused for trial before the District Court of Bari . The proceedings seem to be still pending before the latter. The third applicant lodged a civil party application in the criminal proceedings on 20 September 1995. The proceedings for arson and negligence having been joined, the first hearing on all the charges took place on 14 February 1997. These proceedings seem to be still pending at first instance.

The owners of the opera house, including the third applicant, have repeatedly asked several authorities, such as the Prime Minister, the Ministry of the Budget or the Superintendence for the heritage of the region of Puglia ( Soprintendenza per i beni ambientali , architettonici , artistici e storici per la Puglia ), to help to finance the reconstruction of the opera house on the basis of a series of regulations giving the competent governmental authorities the faculty to appropriate funds for the maintenance or repair of cultural treasures ( beni culturali ).

These regulations (which include Laws No. 1552 of 1961 and 145 of 1992, a decree of the Ministry for Culture dated 1 April 1994 implementing the latter, and a decree of the President of the Republic, dated 22 April 1994 No. 368 simplifying the procedures for public intervention in this field) provide the possibility, within the financial limits allowed by the relevant budgetary provisions, of granting funds for preserving, restoring or making better use of the architectural, archaeological, artistic, historical and documentary heritage. Such grants are discretionary. Thus, Law No. 145 of 1992 provided for a three-year framework programme ( programma triennale di indirizzo ) for the period 1991-1993, endowed with a budget of 397,000,000,000 lira. On the other hand, Section 2 of its implementing decree of 1 April 1994 specified that proposals for public intervention should be submitted  by local authorities ( organi periferici ) within sixty days of the issuing of the decree, with priority being given to any parts of the heritage particularly exposed to the risk of total or partial loss.

The cost of the reconstruction of the theatre has been evaluated at 36,000,000,000 lira. The only works which the owners have been able to carry out at their own expense are rubble-clearing and strengthening. Subsequently, special funding of four billion lira from the Government has enabled the pit and stage to be covered. Yet the reconstruction of the theatre is far from complete; indeed, the theatre has not reopened because of the alleged impossibility of finding the remaining necessary funds. In September 1997 both the Ministry for Culture and the Superintendence approved the reconstruction project. However, according to the information published by the local daily  newspaper Barisera on 19 September 1997, it would be very difficult to find the funds for a private property of special cultural value, such as the opera house in question, whereas if the property passed to a company with majority control in the hands of public bodies, a special Act of Parliament could provide the necessary funds more easily. The same press article also reported that the municipality of Bari was willing to participate in such a company but, failing that, would expropriate the opera house. Moreover,  the municipality was apparently also intending to suspend the possibility of renting out the premises annexed to the opera house.

B. Other relevant domestic law

Article 114 of the Italian Constitution provides that:

"La Repubblica si riparte in Regioni , Province e Comuni ."

Translation:

"The Republic is divided into Regions, Provinces and Municipalities."

Article 128 of the Constitution further provides that:

"Le Province e i Comuni sono enti autonomi nell'ambito dei principi fissati da leggi generali della Repubblica , che ne determinano le funzioni ."

Translation:

"Provinces and Municipalities are autonomous within the principles set out in the general laws of the Republic, which determine their functions."

Furthermore, according to Article 129 para. 1 of the Constitution:

"Le Province e i Comuni sono anche circoscrizioni di decentramento statale e regionale ."

Translation:

"The Provinces and the Municipalities are territorial units for decentralization of power by the State and the Regions."

Finally, Article 130 para. 1 of the Constitution provides that a body within each Region is to monitor the legality of the acts of the Provinces, the Municipalities and other local authorities (" Un organo della Regione , costituito nei modi stabiliti da legge della Repubblica , esercita , anche in forma decentrata , il controllo di legittimità sugli atti delle Province, dei Comuni e degli altri enti locali ").

COMPLAINTS

The applicants complain in the first place of the inaction of the State, which has so far failed to intervene to help reconstruct the opera house. They allege in particular that the relevant regulations provide only a power for the State to finance this type of action, whereas in other cases, such as damage resulting from acts of terrorism, racketeering or natural disasters, the State is obliged to intervene. Further, the applicants claim that public property benefits from more efficient preservation and restoration than examples of private cultural heritage like the Petruzzelli theatre (they mention, inter alia , the example of the Fenice Opera House in Venice). In this respect, they allege a breach of Article 1 of Protocol No. 1 to the Convention, in so far as this provision entails, in their view, a positive obligation for the State to finance the reconstruction of a private property having, as does the opera house in question, a relevant public cultural interest for the city of Bari and its region, where the private owners alone cannot provide the necessary financial means. In this respect, the applicants also complain of a breach of Article 13 of the Convention, alleging that the fact that the State has discretionary powers in this field deprives them of any remedy and constitutes in itself a violation of the Convention.

In the alternative, the applicants refer to the behaviour of the municipality of Bari as a de facto expropriation. In this regard, they ask the Commission to check the truthfulness of the contents of the press article dated 19 September 1997.

The applicants also complain about the length of the civil and criminal proceedings currently pending, asserting that their excessive length has made  the applicants' attempts to save the theatre more difficult. In this respect, they invoke Article 6 para. 1 of the Convention.

Finally, as to the locus standi of the first applicant before the Commission, the applicants state that it should be considered as a "non-governmental organisation " under Article 25 of the Convention, for the following reasons. Law No. 142 of 1990 has given wide  autonomy to infra-regional territorial bodies ( enti territoriali infraregionali ) in Italy. In enacting this Law, Italy was simply implementing the European Charter of Local Self-Government , adopted under the aegis of the Council of Europe in 1985. It would be inconsistent for the Council to promote such norms without the Commission being willing to develop its interpretation of the notion of "non-governmental organisation " accordingly. Besides, it would be difficult to consider a province as an organ of the State, because otherwise it would not be possible for a province to take legal action against the State (and vice versa), as it in fact is (in conformity with Article 11 of the above-mentioned European Charter). According to the applicants, the province of Bari can therefore claim to be an indirect victim, especially taking into account that one of its statutory duties is to protect the cultural and artistic heritage within its territory.

THE LAW

1. As far as the first and the second applicants are concerned, the Commission recalls in the first place that Article 25 para. 1 of the Convention reads, insofar as relevant, as follows:

"The Commission may receive petitions ... from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention ...".

As to the first applicant, namely the Province of Bari , the Commission considers that provinces in Italy are public-law authorities which perform official duties assigned to them by the Constitution and legislation, notwithstanding the extent of their autonomy. Therefore, they cannot be considered as non-governmental organisations within the meaning of Article 25 of the Convention (see, mutatis mutandis , Nos. 26114/95 and 26455/95 (joined), Dec. 28.6.95, D.R. 82-B, p. 150). This conclusion is also proved, arguing from the inverse, by the fact that acts, or failures to act, imputable to a province could engage the responsibility of the Italian State under the Convention if they were to be in breach of the latter. Besides, the argument pointing to the possibility of conflict between a province and central government cannot lead to a different conclusion, because conflicts between different State authorities, at different levels and liable to be decided in a more or less jurisdictional manner, are entirely possible and are regulated in most national, and in some cases even supranational, systems. Yet the possibility of such conflicts does not in any way diminish the public nature of the authorities involved, which derives from the distinct elements referred to above.

As to the second applicant, namely the President of the Province of Bari in his capacity as a citizen of that city, the Commission recalls that persons who are unable to demonstrate that they are personally affected by the measure or the inaction they criticise cannot claim to be the victim of a violation of the Convention (see No. 18598/91, Dec. 18.5.94, D.R. 78-B, p. 71). In the instant case, the Commission notes in particular that the second applicant is neither one of the owners of the opera house nor one of the parties to the civil and criminal proceedings currently pending. Therefore, he cannot claim to be a "victim" within the meaning of Article 25 of the Convention.

Consequently, it follows that as far as the first and second applicants are concerned, the application must be rejected as being incompatible ratione personae with the provisions of the Convention, pursuant to Article 27 para. 2 of the Convention.

2. As far as the third applicant is concerned, she complains, in the first place, in her capacity as one of the owners of the opera house, of the inaction of the State, which has so far failed to intervene to help reconstruct the opera house. In this respect, she alleges a breach of Article 1 of Protocol No. 1 to the Convention, which according to her would entail a positive obligation for the State to finance the reconstruction of a private property having, as does the opera house in question, a relevant public cultural interest for the city of Bari and its region, where the private owners alone cannot provide the necessary financial means.

The Commission first recalls that Article 1 of Protocol No. 1 comprises three distinct rules. The first, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property. The second rule, contained in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third rule, stated in the second paragraph, recognises that Contracting States are entitled, inter alia , to control the use of property in accordance with the general interest. The three rules are not "distinct" in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see for example Allan Jacobsson v. Sweden judgment of 23 October 1989, Series A no. 163, p. 16, para. 53).

The Commission notes that the third applicant does not complain about the arson as such. Even if criminal proceedings are currently pending regarding the possible liability of public officials for the circumstances in which the fire occurred, no judicial decision confirming such alleged liability has been adopted to date and the present application concerns solely the insufficiency of the financial means provided by the State to restore the opera house. Therefore, the third applicant cannot be considered as having been "deprived" of her property within the meaning of the second sentence of the first paragraph of Article 1. Nor can the situation be interpreted in the light of the third rule, since the State is not, so far, exercising any control limiting the use of property in accordance with the general interest. Therefore, no interference by the State with the peaceful enjoyment of the third applicant's property can be established and, in fact, this part of the application concerns solely the lack of action by the State to help finance the reconstruction of the opera house.

In the latter respect, the Commission notes that the relevant regulations do not impose any obligation on the State to provide the funds called for. Decisions concerning the financing of restoration or maintenance of property belonging to the national cultural heritage are in fact of a discretionary nature, as the third applicant herself acknowledges. In the circumstances of the present case, the Commission considers that the general rule contained in the first sentence of the first paragraph cannot be interpreted as imposing a positive obligation on the State authorities to intervene financially in favour of a private property damaged as a result of events which, so far, cannot be considered as attributable to the behaviour of a State authority and where no such obligation has been imposed on the State authorities by a domestic law, regulation or any other provision (see, mutatis mutandis , No. 20944/92, Dec. 20.2.95, D.R. 80-B, p. 78). In these conditions the State inevitably enjoys a wide margin of discretion (see also, mutatis mutandis , Eur. Court HR, Mellacher and others v. Austria judgment of 19 December 1989, Series A no. 169, p. 28, par. 53). It is also noteworthy that according to section 2 of the implementing decree of 1 April 1994, the possibility of obtaining State financial help in a given case also depended on the initiative of the competent local authorities.

The present complaint must therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

3. The third applicant further complains of a breach of Article 13 of the Convention, alleging that the fact that the State has discretionary powers in the field of financial intervention in favour of the cultural heritage deprives her of a remedy.

Article 13 of the Convention reads as follows:

"Everyone whose rights and freedoms as set forth in this 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 Commission recalls that the right recognised by this provision may only be exercised in respect of an arguable claim and that a claim cannot be regarded as arguable where the Commission has rejected the applicant's substantive complaints as disclosing no appearance of a violation of the Convention (see for example No. 21353/93, Dec. 27.2.95, D.R. 80-A, p. 101). Taking account of the conclusion reached by the Commission on the substantive claim based on Article 1 of Protocol No. 1, such claim cannot be regarded as "arguable".

It follows that the complaint based on Article 13 of the Convention must be also rejected as being manifestly ill-founded, in accordance with Article 27 para. 2 of the Convention.

4. Secondly, the third applicant refers to the behaviour of the municipality of Bari as a de facto expropriation. In this regard, she asks the Commission to check the truthfulness of the contents of the press article dated 19 September 1997.

The Commission notes that this complaint is based on the mere possibility that the Municipality of Bari might expropriate the opera house: no expropriation procedure has so far been initiated, no evidence in the file shows that the Municipality has so far ordered a company in which public authorities could participate to be created, and finally the third applicant has not produced any decision of the Municipality or any application formed against such decision, whether concerning these matters or the alleged suspension of the possibility of renting the premises forming part of the opera house building.

This complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 27 para. 2 of the Convention.

5. The third applicant finally complains about the length of the civil and criminal proceedings currently pending, asserting that the their excessive length has made her attempts to save the theatre more difficult. In this respect, she invokes Article 6 para. 1 of the Convention.

The Commission considers 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

DECIDES TO ADJOURN the examination of the third applicant's complaint concerning the length of the civil proceedings currently pending before Court of Appeal of Bari and the length of the criminal proceedings in which she lodged a civil party application and which are currently pending before the District Court of Bari ;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary              President

           to the First Chamber               of the First Chamber