Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28598/95

by BIELECTRIC Srl and Antonio BIONDI

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 27 November 1996, the following members being present:

Mrs J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

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 26 June 1995 by

BIELECTRIC Srl and Antonio BIONDI against Italy and registered on

19 September 1995 under file No. 28598/95;

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 company, having its registered office in

Ospedaletto (Pisa) and acting through the applicant, who is its legal

representative and managing director, has been in liquidation since

29 May 1995.

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

summarised as follows.

a) Particular circumstances of the case

In 1983, the applicant company commissioned company X to build

a 1400 m sq. factory building in Ospedaletto (Pisa).

On 4 April and 20 June 1986, the managing director of the

applicant company - the second applicant - acting in the capacity of

director of the construction works ("direttore dei lavori"), reported

to the Construction Office ("Genio Civile") that the executive plans

("disegni esecutivi") were lacking and that some construction errors

were being committed.

On 5 September 1986, company X filed with the competent

authorities the final report on the construction ("relazione di fine

lavori").

On 1 November 1986, the applicant reported to the Construction

Office the existence of certain defects in the structure of the shed

and requested that they inspect the shed.

On 11 December 1986, the applicant filed with the Construction

Office another report on the construction, in which he pointed out the

existence of certain defects in the structure.

On 23 December 1986, the Pisa Fire Brigade inspected the shed and

reported to the Pisa Town Council that its structure presented certain

important construction errors.

On 24 January 1987, the Construction Office inspected the shed

and established the existence of certain defects in its structure. It

held that the importance of such defects was to be ascertained through

further practical tests for which it was not itself competent.

On 27 January 1987, the Pisa Town Council declared that the shed

was dangerous and unfit for use ("inagibile") and therefore warned the

applicant company not to continue the works on the shed until the

errors were rectified.

On 27 May 1988, the person in charge of the test ("collaudo

statico") informed company X that he could not proceed with the test

as the executive plans had not been duly filed with the Construction

Office.

On 30 March 1989, the applicant filed a criminal complaint

against the managing director of company X for fraud and for filing

defective executive plans in breach of the relevant anti-seismic

legislation.

On 27 March 1991, the person in charge of the test informed the

applicant company that X had not yet submitted the requested drawings

and that he could not therefore proceed with the test.

As a consequence of the lack of final testing, according to

Article 8 of Law 1086/71 no certificate of fitness for occupation

("licenza di abitabilità") could be issued by the Pisa Town Council.

On 20 June 1991 the Chief Engineer of the Construction Office

declared to the Public Prosecutor that the factory shed presented

certain defects, but that there was no clear violation of the anti-

seismic regulations and that there was no actual danger for public

safety.

On 23 June 1992 the Chief Engineer of the Construction Office

reported to the Public Prosecutor that all the necessary documents

concerning the construction of the factory shed had been filed with the

Construction Office.

On 23 February 1993, the criminal complaint of 30 March 1989 was

not pursued by the Pisa Judge for Preliminary Investigations, who held

that the conduct of the managing director of company X did not amount

to fraud but simply to a breach of contract, and that in any event the

offence under the anti-seismic legislation was time-barred and

extinguished by an amnesty.

On 1 March 1993 the Chief Engineer of the Construction Office,

on the initiative of Regional Council of Tuscany, filed a criminal

complaint against the planner of company X for violations of the

relevant anti-seismic legislation, in particular for not filing all the

necessary documents concerning the construction of the factory shed.

On 4 November 1993 this complaint was dismissed by the Pisa Judge for

Preliminary Investigations as being time-barred.

On 25 May 1993, the applicant filed with the Pisa Public

Prosecutor a criminal complaint against the Chief Engineer of the

Construction Office for giving false information to the Public

Prosecutor on 20 June 1991 and 23 June 1992 and neglect of duty

("omissione d'atti d'ufficio"). By a decision of 13 April 1994, the

judge for Preliminary Investigations dismissed the complaints

concerning the false information of 20 June 1991 and the neglect of

duty, and fixed a hearing for 9 May 1994 for the third complaint (false

information of 23 June 1992). After the hearing, by a decision of

19 October 1994 the Judge for Preliminary Investigations dismissed the

remainder of the complaint.

In the meantime, on 28 July 1993 the President of the Regional

Council of Tuscany informed the press of having filed a criminal

complaint against the applicant for insult ("oltraggio").

As a consequence of the dismissals of 23 February 1993 and

4 November 1993, pursuant to Article 25 of Law 64/74 competence to

issue directions as to the compliance of the construction works with

the relevant legislation passed from the Judge for Preliminary

Investigations to the President of the Regional Council of Tuscany (see

below).

By a decree of 6 October 1994 the President of the Regional

Council of Tuscany ordered the applicant company and company X to file

certain documents concerning the construction of the shed with the

Construction Office within thirty days of the order itself.

On 19 December 1994 the Pisa Construction Office informed the

President of the Regional Council that company X had filed certain

documents.

On 13 March 1995 the Pisa Town Council, after inspecting the

factory building on 9 March 1995, ascertained that certain executive

plans had not been deposited and that the structure presented important

differences from the original plans. It concluded that the factory

building was not in accordance with law 1086/71 and informed the

applicant company, the President of the Regional Council of Tuscany and

the Construction Office as well as the Prefect and the Magistrate

accordingly.

On 20 March 1995 the President of the Regional Council

acknowledged that his previous order of 6 October 1994 had been

complied with.

On 16 May 1995 the Pisa Town Council reiterated that the factory

building was not in accordance with law 1086/71.

The applicant filed a criminal complaint against the President

of the Regional Council of Tuscany with the Florence Public Prosecutor.

By decision of 11 September 1995, the Florence Judge for

Preliminary Investigations dismissed the complaint and held that the

President of the Regional Council had fulfilled his legal obligations

and that the decree of 6 October 1994 had made it possible to proceed

with the testing of the factory building.

The applicant applied to the Pisa Town Council seeking the

withdrawal of the order not to pursue any construction activity on the

factory building. However, by a letter of 6 February 1996, the Pisa

Town Council reiterated that the factory building as built was not in

accordance with the original plans and that although the construction

works had been completed, the final report on the construction and the

report on the final test were still lacking.

The civil proceedings

On 9 April 1987, the applicant company summoned company X to

appear before the Arezzo court, requesting that company X be ordered

to carry out all the works and amendments necessary to bring the

factory building into compliance with the law and the instructions

given by the Pisa fire brigade in December 1986.

In a judgment of 4 October 1989, filed with the Registry on

16 November 1989, the Arezzo court held that the building of the shed

did not constitute a work under a contract ("appalto") but a sale, and

that the factory building was in accordance with all the legal

requirements, the alleged defects being merely aesthetic.

On 21 June 1990, the applicant company lodged an appeal against

this judgment before the Florence Court of Appeal; the latter, in a

judgment of 26 February 1993, filed with the Registry on 13 May 1993,

held that the defects in the factory building were merely aesthetic and

did not affect the structure.

On 12 May 1994, the applicant company lodged an appeal on points

of law; the proceedings are still pending before the Court of

Cassation.

b) Relevant domestic law

According to the relevant legislation (Laws no. 1086/71 and

no. 64/74 and Regional Law no. 88/82), all building plans must be filed

with the Construction Office before beginning the construction works;

as regards constructions in seismic areas, the Construction Office

carries out sample controls of the substance of the plans.

Competence to monitor the compliance of the constructions with

the relevant legislation is vested in the mayor, the police, and the

technical staff of the town council. The police must immediately report

any alleged violation to the Construction Office. The Mayor and the

Chief Engineer of the Construction Office, after drafting a technical

report on the alleged violation, must inform the competent Public

Prosecutor thereof. Any violation of this legislation entails criminal

liability; the criminal proceedings resulting from the report concern

both the criminal liability and the bringing of the building into

compliance with the law. The competence to issue directions as to the

changes to be made on the building is vested in the Magistrate when the

proceedings end with the finding of a violation of the law and the

conviction of the person responsible for such violation, and in the

mayor when the criminal charge related to the violation is dropped on

grounds of an amnesty or as time-barred.

COMPLAINTS

1. The applicant company mainly complains about the fact that,

notwithstanding numerous criminal complaints and requests to various

authorities, it has been impossible for it to bring its factory shed

into compliance with the anti-seismic regulations and therefore to

start its manufacturing activity. According to the applicant company,

its problems reside in the conduct of the administrative authorities,

namely in the inconsistency between the Pisa Town Council and the

Regional Council of Tuscany, which seem not to agree on whether or not

the factory shed complies with the relevant regulations and therefore

frustrate the procedure which should lead to the determination of what

must be done to bring the factory shed into compliance with the law.

It complains in particular that various criminal complaints it had

filed against, inter alia, the Chief Engineer of the Construction

Office and the President of the Regional Council of Tuscany were not

pursued.

The applicant company invokes Article 1 of Protocol no. 1 and

Article 6 of the Convention in this respect.

2. The applicant complains under Article 8 of the Convention about

the conduct of the President of the Regional Council of Tuscany in that

on 28 July 1993 the latter publicly accused him of a crime of which he

was later acquitted.

3. The applicant company finally alleges a violation of Article 5

of the Convention, in that it has been prevented from starting its

manufacturing activity in a safe environment.

THE LAW

1. The applicant company alleges an interference with its right to

the peaceful enjoyment of its possessions in breach of Article 1 of

Protocol no. 1 (P1-1) and a violation of Article 6 (Art. 6) of the

Convention on the ground of the impossibility for it for almost ten

years to obtain from the Italian authorities indications as to the

changes on its factory building required in order to bring it into

compliance with the anti-seismic legislation. It also complains that

numerous criminal complaints it had filed against inter alia the Chief

Engineer of the Construction Office and the President of the Regional

Council of Tuscany were not pursued.

As concerns the impossibility for the applicant company to start

its manufacturing activity because of the alleged defects in its

structure, the Commission observes that the construction of the factory

shed at issue was entrusted to a constructor, which, according to the

applicant company, committed several construction errors which led, on

the applicant company's initiative, to the declaration of unfitness for

use and dangerousness and thus to the blocking of the works in January

1987. The Commission further observes that in April 1987 the applicant

company instituted civil proceedings against the constructor requesting

it to be ordered to carry out all the works and amendments necessary

to bring the factory building into compliance with the law.

The Commission notes that the object of these proceedings

coincides with the object of the present application; it considers

that, apart from the conduct of the administrative authorities, should

the applicant company be successful, the constructor would have to

carry out the necessary works and would be liable for any prejudice

suffered by the applicant company.

However, the Commission notes that these proceedings are

currently pending before the Court of Cassation; it considers therefore

that the applicant company cannot claim to be a victim within the

meaning of Article 25 (Art. 25) of the Convention at this stage of the

proceedings. This part of the application is thus premature and must

be rejected in pursuance of Article 27 para. 2 (Art. 27-2) of the

Convention.

As regards the applicant company's complaint that its case did

not receive a fair hearing within the meaning of Article 6 (Art. 6) of

the Convention given that the criminal complaints it had filed were not

pursued, the Commission recalls that under Article 6 para. 1 (Art. 6-1)

of the Convention everyone is entitled, in the determination of either

his civil rights and obligations or of any criminal charge against him,

to a fair hearing by a tribunal. However, the Commission also recalls

its established case-law to the extent that the right of access to

court does not include a right to have criminal proceedings instituted

against third persons (cf. amongst others No. 9777/82, Dec. 14.7.83,

D.R. 34, p. 158).

It follows that this aspect of the complaint is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

2. As regards the applicant's complaint under Article 8 (Art. 8) of

the Convention relating to the adverse consequences to his reputation

of the declarations made by the President of the Region Tuscany to the

press, the Commission is not required to decide whether or not this

complaint discloses any appearance of a violation of the Convention

as it 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 after all domestic

remedies have been exhausted and within a period of six months from the

date on which the final decision was taken.

In the present case, even assuming that Article 8 (Art. 8) is

applicable in the present case, that the President of the Regional

Council was acting in his capacity as civil servant and that his

conduct can thus engage the responsibility of the State, and that the

applicant company has exhausted all the domestic remedies which were

available to it under Italian law, the Commission observes that the

observations which the President of the Region Tuscany made to the

press date back to 28 July 1993, which is more than six months before

the filing of the present application (No. 20730/92, Dec. 18.10.95,

unpublished).

It follows that this complaint must be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

3. Finally the Commission has examined the applicant company's

complaint that it is being prevented from starting its manufacturing

activity in a safe environment. However, it considers that, in so far

as it has been substantiated, this complaint does not disclose any

appearance of a violation of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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BIELECTRIC Srl. AND BIONDI v. ITALY

BIELECTRIC Srl. AND BIONDI v. ITALY

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