SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 23308/94

by Luciano COCCHIARELLA

against Italy

The European Court of Human Rights ( Second Section) sitting on 25 May 1999 as a Chamber composed of

Mr C. Rozakis, President ,

Mr M. Fischbach,

Mr B. Conforti,

Mr P. Lorenzen,

Mrs M. Tsatsa-Nikolovska,

Mr A.B. Baka,

Mr E. Levits, Judges ,

with Mr E. Fribergh, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 September 1993 by Luciano COCCHIARELLA against Italy and registered on 25 January 1994 under file no. 23308/94;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 12 January 1996 and the observations in reply submitted by the applicant on 12 February 1996, as well as the additional information submitted by the applicant upon the request of the Secretariat’s of the European Commission of Human Rights on 20 May 1997, on 24 February 1998 and on 7 March 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national, born in 1933 and living in Guidonia (Rome).

He is represented before the Court by Mr Giovanni Battista Petrocchi, a lawyer practising in Tivoli (Rome).

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

The applicant is the owner of a small company (“AVIO LACO snc di Luciano Cocchiarella”) which deals in aeroplanes and relevant spare parts.

In 1979 and 1980, the applicant purchased a plot of land in the vicinity of the Guidonia airport with a view to building a hangar on it. There being no fences around the plot of land, its boundaries in respect of the Guidonia airport were not marked.

In October 1981, the applicant's company obtained a building permit from the Guidonia town council for building the hangar.

On 1 June 1982, the town council informed the applicant that his building permit had been suspended, as the Air Force claimed to be the legitimate owner of the plot of land.

The proceedings against the Ministry of the Defence

As a consequence, on 15 March 1982 the applicant applied to the Rome Magistrate’s Court, in order to have his right of property on the plot of land at issue acknowledged and the relevant boundary assessed. By a decision of 3 November 1982, the Rome Magistrate’s Court dismissed the case for lack of jurisdiction.

By a writ served on 18 March 1983, the applicant summoned the Italian Ministry of the Defence to appear before the Rome District Court, which, by a judgment of 6 July 1984, acknowledged the applicant's right of property on the plot of land and assessed the relevant boundary. The court however refused the applicant’s request to mark the boundaries of the plot of land, on the ground that, given that the Air Force had de facto decided to use the plot of land as a part of the airport, the marking of boundaries would have influenced this decision, which was outside the scope of jurisdiction of a civil court (the administrative courts being exclusively competent to withdraw or amend an administrative decision).

The appeal lodged on 15 October 1984 by the Ministry of the Defence against this decision was rejected by the Rome Court of appeal by a judgment issued on 24 September 1986 and filed with the Registry on 20 October 1986.

The appeal on points of law lodged by the Ministry against the appellate court’s decision was rejected by the Court of Cassation by a judgment issued on 12 December 1989 and filed with the Registry on 26 March 1991.

The proceedings to recover possession of the plot of land

In the meantime, the Air Force had let the applicant's plot of land to a farmer, A.I.

In 1987, the applicant instituted civil proceedings ( azione di reintegrazione ) against A.I., in order to recover possession of his property.

By an interlocutory decision of 3 September 1987, the Tivoli Magistrate’s Court ordered A.I. to vacate the plot of land.

The proceedings were then pursued at the hearing of 14 January 1988. An expertise was carried out. The Ministry of Justice intervened in the proceedings claiming to have authorised A.I. to occupy the plot of land; it claimed further that the proceedings could not be

pursued against a State administration.

On 17 February 1990 the bailiff appointed by the Tivoli Magistrate’s Court in order to enforce the latter's decision of 3 September 1987 requested the Air Force to vacate the applicant's plot of land; the commanding officer refused on the ground that no relevant orders had been given by his senior officers.

By a judgment of 24 April 1990, filed with the Registry on 30 June 1990, the Magistrate’s Court refused the applicant’s claims, withdrew its own interlocutory decision of 3 September 1987 and ordered the applicant to refund the opponents’ legal costs.

On 20 April 1990 the applicant’s company summoned the Ministry of the Defence to appear before the Rome District Court with a view to being compensated for the financial losses incurred on account of the occupation of its plot of land.

By a judgment of 10 January 1997, the Rome District Court ruled in the applicant’s company’s favour and ordered the Ministry of the Defence to pay the applicant’s company the sum of 200,000,000 lira for pecuniary damage in connection with the occupation of the plot of land.

COMPLAINT

The applicant complains under Article 1 of Protocol No. 1 of the impossibility for him to recover possession of his plot of land, despite an enforceable judgment acknowledging his property thereof.

PROCEEDINGS BEFORE THE COURT

The application was introduced on 28 September 1993 and registered on 25 January 1994.

On 29 November 1995, the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 12 January 1996. The applicant replied on 12 February 1996. The applicant submitted further information, at the request of the Secretariat of the Commission, on 20 May 1997, on 24 February 1998 and on 7 March 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant complains that his plot of land has been illegally occupied by the Italian Air Force for many years. He alleges a breach of Article 1 of Protocol No. 1, which  reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government contest in the first place the applicant’s quality of victim within the meaning of the former Article 25 of the Convention, in that the application concerns the damage allegedly occurred to the company AVIO LACO and not to the applicant himself.

The applicant underlines that he is the sole owner of the company “AVIO LACO snc di Luciano Cocchiarella”, so that he is himself the direct victim of the financial prejudice allegedly suffered in connection with the illegal occupation of the plot of land at issue.

The Court, in the light of the applicant’s explanations, considers that he can claim to be himself a victim of the alleged beach of Article 1 of Protocol No. 1 within the meaning of Article 34 (the old Article 25) of the Convention.

The Government further raise an objection as to the exhaustion of domestic remedies. They claim that the applicant should have applied to the administrative courts seeking compliance ( ottemperanza ) with the judgment of the Rome District Court of 6 July 1984, whereby that court had clearly pointed out the competence of the administrative courts in solving the applicant’s problem. The administrative court could have withdrawn the Air Force’s de facto decision to use the applicant’s plot of land for the airport.

The applicant disagrees. He considers that no possibility exists under domestic law to seek compliance, as indicated by the Government, because in none of the decisions have the civil courts ordered that the plot of land be given back to the applicant. Furthermore, the applicant points out that the plot of land is neither directly nor indirectly used for the airport.

The Court notes that it does not appear from the observations submitted nor from the additional information submitted upon the requests of the Secretariat of the Commission that the applicant has appealed against the judgment of 6 July 1984 whereby the Rome District Court had refused to grant his request to mark the boundaries of the plot of land. It does not appear either that the applicant has appealed against the judgment of 24 April 1990, whereby the Tivoli Magistrates’ Court had refused to order A.I. to reinstate the applicant in his property. Nor does it appear from the file that the applicant has renewed his request for a building permit - suspended in June 1982 - after having obtained a judicial acknowledgement of his title over the plot of land by judgment of 6 July 1984.

In these circumstances, the Court considers that, independently of whether the remedy indicated by the Government should have been exhausted in this case, the applicant has failed to exhaust all the domestic remedies which were available in domestic law and to indicate any grounds which could have exempted him from the obligation under Article 35 § 1 of the Convention.

Furthermore, in connection with the prolonged impossibility for the applicant to use his plot of land, the Court notes that the Rome District Court has awarded the applicant compensation in this respect; it does not appear that this judgment has been appealed against either by the applicant or by the Ministry of Defence.

It follows that this application must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Erik Fribergh Christos Rozakis Registrar President