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GIOFFRE v. ITALY

Doc ref: 23568/94 • ECHR ID: 001-2215

Document date: June 28, 1995

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GIOFFRE v. ITALY

Doc ref: 23568/94 • ECHR ID: 001-2215

Document date: June 28, 1995

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 23568/94

by Vittorio GIOFFRE

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 28 June 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

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 3 November 1993

by V. Gioffre against Italy and registered on 3 March 1994 under file

No. 23568/94 ;

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, born in 1931 and currently

residing in Reggio Calabria.

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

summarised as follows.

On 11 March 1991, the Public Prosecutor of Palmi ordered the

seizure of the applicant's car; at the same time, the Public Prosecutor

informed the applicant that committal proceedings had been initiated

against him on charges of fraud. Several other persons, including the

person from whom the applicant had bought the car, were involved in the

investigations and numerous other cars were seized.

The seizure of the applicant's car took place on 13 March 1991.

On 12 April 1991 the applicant lodged a first application for

release of his car from seizure; this request was dismissed by the

Public Prosecutor by decree of the same day for reasons of preservation

of evidence.

On 3 May 1991 the Public Prosecutor urged the investigating judge

to have the car subject to an expert opinion, pointing out that the car

was being kept in an open air parking and was therefore deteriorating.

On 2 March 1992 the Public Prosecutor requested and obtained a

prorogation until 15 November 1992 of the time-limit for closing the

preliminary investigation.

On 30 July 1992 the applicant lodged a second request to have his

car released from seizure. By decree of 1 October 1992, the Public

Prosecutor rejected it on the grounds that further investigation was

necessary.

On 12 January 1993 the applicant was interrogated by the police.

On 16 July 1993 the investigations against the applicant were

discontinued. He allegedly did not have any knowledge thereof. The

person from whom he had bought the car was committed for trial on

charges of fraud, and the applicant was therefore considered as an

injured.

On 25 October 1993 the applicant sought a third time to have his

car released from seizure; by decree of 21 January 1994, the Public

Prosecutor dismissed this request on the grounds that the car

constituted the corpus delicti and could therefore be subject to future

confiscation.

By decree of 4 May 1994, the applicant was informed, in his

capacity of injured party, that the first hearing was scheduled for

19 May 1994.

On 4 July 1994 the applicant's car was released from seizure; it

was in such bad condition that the applicant had to sell it for a very

low price.

COMPLAINTS

1. The applicant complains of the duration of the seizure of his

car.

In particular, the applicant complains of the refusal by the

Public Prosecutor to release the car from seizure, despite the fact

that it was being kept in an open air parking and was therefore

deteriorating; he maintains that when the car was finally released from

seizure, it had so seriously deteriorated, that it was no more suitable

for its purpose and had therefore to be sold for a very low price.

He alleges a violation of Article 1 of Protocol No. 1 in this

respect.

2. He further complains of the length of the criminal proceedings

instituted against him on charges of fraud.

THE LAW

1. The applicant complains of the duration of the seizure of his

car. He alleges a violation of Article 1 of Protocol No. 1 (P1-1) to

the Convention, that, as far as relevant, reads:

"Every natural and legal person is entitled to the peaceful

enjoyment of his possessions (...)".

However, the Commission is not required to decide whether or not

this complaint discloses any appearance of a violation of the

Convention or its Protocols, as the application is inadmissible for the

following reasons.

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

the Convention, "it may only deal with a matter after all domestic

remedies have been exhausted, according to the generally recognised

rules of international law".

In the present case, the Commission observes that the applicant

failed to lodge an appeal against the refusal by the Public Prosecutor

to release the applicant's car from seizure, a remedy which was

available to him under Italian law.

The Commission furthermore considers that in the present case

there are no special circumstances that could absolve the applicant

from exhausting the above remedy.

It follows that the applicant has not met the requirements of

Article 26 (Art. 26) of the Convention as to the exhaustion of domestic

remedies and that this part of the application must be rejected under

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

2. The applicant further complains of the length of the criminal

proceedings instituted against him on charges of fraud.

Article 6 para. 1 (Art. 6-1) of the Convention, as far as

relevant, reads:

"In the determination (...) of any criminal charge against him,

everyone is entitled to a (...) hearing within a reasonable time

(...)".

The Commission considers that 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, unanimously,

DECIDES TO ADJOURN its examination of the complaint

regarding the length of the criminal proceedings;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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