FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40001/98 by Annamaria GIOACCHINI against Italy

The European Court of Human Rights (First Section) , sitting on 29 November 2001 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr E. Fribergh , Section Registrar

Having regard to the above application lodged with the European Commission of Human Rights on 27 January 1998 and registered on 24 February 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Annamaria Gioacchini, is an Italian national, who was born in 1953 and lives in Ancona. She is represented before the Court by Mr E. Salvatore, a lawyer practising in Ancona.

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

The applicant applied to the Mayor of Ancona for a farmhouse building permit on 3 December 1993.

The City Planning Commission rejected the request on 9 March 1994 because a modification of the city plan forbade new buildings in the areas in question.

On 13 May 1994 the applicant lodged an appeal against this decision with the Marche Regional Administrative Court, asking for it to be quashed and for a declaration of her right to obtain the building permit. She alleged that the decision of the City Planning Commission was unlawful because, before the approval of the modification of the city plan by the City Council, she had made written submissions to obtain a building permit in those areas which had been considered by the City Council to fall within the modified city plan.

On 28 July 1995 the Marche Regional Administrative Court quashed the decision of the City Planning Commission on the basis of the reasons stated by the applicant, but rejected the request to declare that she had a right to obtain the building permit.

The applicant sent a copy of the judgment to the Ancona City Council on 12 October 1995. No appeal was lodged by the Ancona City Council and the judgment became final on 11 December 1995.

In the meantime, on 7 November 1994, the City Council had approved new modifications of the city plan in relation to the areas in question.

On the basis of the judgment of the Marche Regional Administrative Court, the applicant asked the Ancona City Council for a building permit, but the City Council did not reply.

In relation to the delays in complying with the decision of the Marche Regional Administrative Court, on 23 February 1996 the applicant filed enforcement proceedings ( ricorso per l’ottemperanza ) with the same Administrative Court for enforcement of the judgment of 28 July 1995. The applicant requested the Administrative Court to find that the first judgment had not been enforced and to appoint a special commissioner ( commissario ad acta ) to enforce it.

On 18 October 1996 the Marche Regional Administrative Court admitted the claim and ordered  the Ancona City Council to comply fully with the judgment of 28 July 1995 within 60 days from the communication of the decision. The Court also appointed a special commissioner who was to intervene if, upon expiry of the 60-day period, the Ancona City Council had not granted the permit. The commissioner was empowered to take the necessary measures to ensure compliance with the decision within 60 days. The Marche Regional Administrative Court held that the further modifications approved by the City Council on 7 November 1994 were not an obstacle to granting the building permit because the administrative proceedings for their approval had not ended when the judgment of the Marche Regional Administrative Court of 28 July 1995 became final.

The Ancona City Council lodged an appeal against the judgment of 18 October 1996 of the Marche Regional Administrative Court before the Consiglio di Stato , asking for it to be quashed.

On 14 November 1997 the Consiglio di Stato granted the appeal and rejected the application for enforcement. The Consiglio di Stato alleged that the new modifications to the city plan approved on 7 November 1994 were an obstacle to granting the building permit, even if the administrative proceedings for approval had not ended when the judgment of 28 July 1995 of the Regional Administrative Court had become final.

COMPLAINTS

The applicant complains under Article 6 of the Convention about a  violation of her right to a fair trial. In particular, in relation to the enforcement proceedings, the applicant alleges that the Consiglio di Stato re-considered the merits of the case, which had been finally decided by the Marche Regional Administrative Court on 28 July 1995. In this respect the applicant also invokes Article 2 of Protocol No.7 to the Convention.

The applicant further complains under Article 1 of Protocol No.1 to the Convention that the Ancona City Council has not granted her the building permit she is entitled to pursuant to the final decision of the Marche Regional Administrative Court of 28 July 1995.

THE LAW

1. The applicant complains under Article 6 of the Convention that the Consiglio di Stato violated the principle of a fair trial because it re-considered the merits of the case which had already been determined by a final and irreversible judgment . In this respect she also invokes Article 2 of Protocol No.7 to the Convention.

The Court first notes that Article 2 of  Protocol No.7 to the Convention is not applicable since it applies exclusively to criminal matters. This complaint will therefore be examined only under Article 6 § 1 of the Convention.

Article 6 of the Convention provides, insofar as relevant:

“In the determination of his 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 (...)”.

The Court recalls that “one of the fundamental aspects of the rule of law is the principle of legal certainty, which requires inter alia that where the courts have finally determined an issue, their ruling should not be called into question” (see the Brumarescu v. Romania judgment of 28 October 1999, to be published in CEDH 1999 VII, § 61).

However, the Court considers that in the present case the Consiglio di Stato did not re-examine the merits of  the matter determined by the final judgment of the Regional Administrative Court of 28 July 1995.

In fact, in the proceedings on the merits the Regional Administrative Court quashed the decision of the City Planning Commission on the grounds that the first modification of the city plan was not an obstacle to the granting of the building permit. This judgment explicitly refused to declare that the applicant had a right to obtain a building permit and its implementation therefore only required a re-examination of the applicant’s request by the City Council.

In the subsequent enforcement proceedings the Regional Administrative Court examined the separate matter of the new modifications approved by the City Council on 7 November 1994. It found that these were not an obstacle to granting the building permit and finally to order that it be granted.

Nevertheless on appeal, the Consiglio di Stato found that the new modifications approved by the City Council were an obstacle to the granting of the building permit. In doing so, the Consiglio di Stato re-examined the separate issue decided by the Regional Administrative Court in the enforcement proceedings but not the merits of the Regional Administrative Court’s judgment of 28 July 1995. Consequently, it cannot be concluded that the Consiglio di Stato re-examined the judgment which had acquired legal force.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant further complains under Article 1 of Protocol No.1 to the Convention that the building permit she is entitled to pursuant to a final and irrevocable decision has not been granted.

Article 1 of Protocol No.1 to the Convention provides, insofar as relevant:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions (...)”.

The Court notes that Article 1 of Protocol 1 to the Convention does not guarantee an unconditional right to obtain a building permit or the right to build ( Eur.Comm.H.R ., No. 20490/92, Iskcon and others v. the UK, decision of 8 March 1994, D.R. 76, p.90). In particular, in the present case no domestic judicial authority has declared that the applicant was entitled to a building permit.

It follows that in this respect the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that this part of the application must also be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Erik FRIBERGH Christos ROZAKIS Registrar President