Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 36453/97

by Margherita DE GIORGI

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 1 July 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

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 January 1997

by Margherita DE GIORGI against Italy and registered on 11 June 1997

under file No. 36453/97;

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 currently residing in Acqui

Terme, Alessandria.

The facts of the present case, as submitted by the applicant, may

be summarized as follows.

The applicant was married to A.A.; they have two daughters, born

respectively on 16 June 1984 and on 16 June 1986, and a son, born on

4 June 1990. On an unspecified date the applicant legally separated

from her husband and obtained the custody over her daughters.

In March 1986 the applicant requested the Juvenile Court of Turin

to deprive her husband of his parental authority over their daughters.

The Court rejected the applicant's request.

Since then, the applicant's case was monitored by the social

workers. From their reports the applicant appeared to be mentally

instable and not to be able to take care of the daughters, who, in

turn, were reported to be in bad physical, hygienic and psychological

conditions. The applicant's financial situation was also difficult.

On 31 December 1988 the Juvenile Court of Genova therefore issued

proceedings aiming at placing the applicant's daughters for adoption.

On 2 January 1989, pending the above proceedings, the two

children were placed in an Institute.

On 26 May 1989 the Juvenile Court of Genova declared its

territorial incompetence and sent the case before the Juvenile Court

of Turin.

Several medical reports ordered by the latter Court stated that

the applicant was incapable of understanding her daughters' basic

material and emotional needs. On 10 October 1991 a further medical

report stated that the applicant suffered from structural psychological

disorders.

On 13 December 1991 the Juvenile Court of Turin issued a decision

declaring the two children available for adoption on the ground that

the applicant was unable to take care of them as documented in several

medical and social worker's reports submitted to the Court's attention.

On 20 March 1992 the Juvenile Court of Turin refused the

opposition that the applicant had filed against the above decision.

The applicant appealed the latter decision to the Turin Court of

Appeal, Juvenile Section.

In the course of the appeal proceedings, further medical experts

were heard. The applicant was diagnosed as suffering from serious

personality disorders (disturbo paranoide della personalità), while the

applicant's house was reported to be in very bad hygienic conditions.

By a judgment filed with the registry on 15 March 1993, the Turin

Court of Appeal confirmed the availability for adoption of the two

children.

The applicant's appeal on point of law against this judgment was

refused by the Court of Cassation by its judgment of 11 January 1994

which was filed with the registry on 26 July 1994.

On 7 December 1993 the applicant's son was also declared

available for adoption by a decision of the Turin Juvenile Court.

The applicant filed an opposition to this decree, which was

rejected on 10 March 1994 by the same court. This decision was filed

with the registry on 29 March 1994. The applicant appears not to have

appealed against it.

COMPLAINTS

The applicant complains that her three children have been

declared available for adoption. She does not invoke any specific

provision of the Convention.

THE LAW

The applicant complains that she was separated from her children.

In the Commission's opinion, this complaint falls to be examined under

Article 8 (Art. 8) of the Convention.

However, the Commission is not required to examine whether this

complaint discloses a violation of the Convention, as the application

is inadmissible for the following reasons.

The Commission recalls that, pursuant to Article 26 (Art. 26) of

the Convention, it can only deal with a matter within a period of six

months from the date on which the final decision was taken.

The Commission recalls that the running of the six months period

is interrupted by the first letter from the applicant, setting out

summarily the object of the application, provided that the letter is

not followed by a long delay before the application is completed

(No. 15213/89, Dec. 1.7.91, D.R. 71, p. 230).

The Commission recalls that it would be contrary to the aim and

spirit of the six months rule set out in Article 26 (Art. 26) of the

Convention if, by any initial communication, an applicant could set

into motion the proceedings under Article 25 (Art. 25) of the

Convention and then remain inactive for an unexplained and unlimited

length of time. The Commission has constantly rejected applications

where an applicant submitted an application more that six months after

the date of the final decision when there where no special

circumstances suspending the running of this period. The Commission

finds that it would be inconsistent with the aim and purpose of the six

month rule to deviate from this rule in a situation where an

application has been introduced under Article 25 (Art. 25) of the

Convention within six months of the final decision but thereafter not

pursued (see No. 10626/83, Dec. 7.5.85, D.R. 42, pp. 205, 207 and No.

15213/89, Dec. 1.7.91, D.R. 71, pp. 230, 234).

In the present case, the Commission observes that the applicant's

first communication to the Commission, in which she expressed the wish

to lodge an application, was dated 23 June 1994. The applicant was

warned that a possible failure on her part to complete her application

within a reasonably short time might have affected the date of

introduction of her application.

On 7 October 1994 the applicant was requested to submit a copy

of the final decision of the Court of Cassation in her case, decision

which had been filed with the registry on 26 July 1994.

The applicant replied only on 29 January 1997. Although she

claims that she did not have knowledge of the judgment before

28 January 1997, the Commission observes that the applicant has herself

submitted the letter which her lawyer sent her on 17 October 1996

enclosing the judgment at issue.

The Commission further considers that, in any event, even

assuming that the applicant had difficulties in obtaining the requested

document, she could have kept contacts with the Secretariat explaining

so. The Commission underlines that the applicant did not write at all

for about two years and four months.

Therefore,notwithstanding the applicant's initial submission of

23 June 1994, the Commission considers 29 January 1997 to be the date

of introduction of the present application.

The Commission further considers that the final decisions in the

present case are that of the Court of Cassation of 11 January 1994,

which was filed with the registry on 26 July 1994, as regards the

applicant's daughters, and that of the Turin Juvenile Court of 10 March

1994 which was filed with the registry on 29 March 1994, as regards the

applicant's son.

It follows that the present application has been introduced out

of time and must therefore be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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DE GIORGI v. ITALY

DE GIORGI v. ITALY

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