SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39719/98

by Caterina ANDRETTA

against Italy

The European Court of Human Rights ( Second Section) sitting on 4 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 4 November 1997 by Caterina ANDRETTA against Italy and registered on 6 February 1998 under file no. 39719/98;

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

Having regard to the observations submitted by the respondent Government on 18 December 1998 and the observations in reply submitted by the applicant on 2 February 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national, born in 1937, and currently residing in Arienzo ( Caserta ).

She is represented before the Court by Mr Antonio Nardone and Mr Togo Verrilli , two lawyers practising in Benevento .

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

In an order of 8 September 1997, the Head Office of the Campania Revenue enjoined the applicant to pay the sum of 170,000 ITL (approximately 585 FF) on account of taxes, tax surcharges and costs and expenses. The Revenue held that, as shown by a police record of 2 July 1997, the applicant had driven her car without having paid the prescribed motor-vehicle tax on licences and had thus contravened the provisions of Presidential Decree no. 641 of 26 October 1972. The unpaid tax amounted to 70,000 ITL (approximately 240 FF), while 93,335 ITL (approximately 320 FF) were due on account of tax surcharges and 6,665 ITL for cost and expenses.

The order, which was served on the applicant on 12 September 1997, indicated that no appeal lay against it under domestic law.

Article 19 § 1 of Presidential Decree no. 546 of 31 December 1992 indicates the acts which are subject to appeal before the competent Fiscal Board (“ commissione tributaria provinciale ”). It mentions, inter alia , “the role” (“ il ruolo ”). The Fiscal Board’s decision may be appealed first before the competent Fiscal Appeals Board (“ commissione tributaria regionale ”) and then before the Court of Cassation (Articles 52 § 1 and 62 § 1 of Presidential Decree no. 546).

COMPLAINT

Invoking Article 6 § 1 of the Convention, the applicant alleges that her "right to a court" has been infringed, as no remedy was available to her under Italian law against the order of 8 September 1997.

PROCEDURE

The application was introduced on 4 November 1997 and registered on 6 February 1998.

On 10 September 1998, the European Commission of Human Rights decided to give notice of the application to the respondent Government, and invited them to submit their observations on its admissibility and merits.

The Government submitted their observations on 18 December 1998, to which the applicant replied on 2 February 1999.

By virtue of Article 5 § 2 of Protocol No. 11 to the Convention, which entered into force on 1 November 1998, the application shall thereafter be examined by the European Court of Human Rights.

THE LAW

T he applicant alleges that her "right to a court" has been infringed in the present case, as no remedy was available to her under Italian law against the order of 8 September 1997. She invokes Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

“ In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a (...) hearing (...) by [a] tribunal (...).”

The Government consider that Article 6 does not apply to the present case, as the measure contested by the applicant was a fiscal one and did not therefore concern her fundamental rights. In any case, they observe that the order of 8 September 1997 was not final, representing only the first step of the proceedings aimed to prosecute and punish tax offences. The final act of these proceedings, affecting the individual’s pecuniary rights is, on the contrary, the role, which, according to Article 19 § 1 of Presidential Decree no. 546 can be directly appealed before the competent Fiscal Boards.

The applicant notes that the Government admit, in substance, that the order of 8 September 1997 could not be contested before a tribunal. As to the possibility of bringing an action against the role, the applicant observes that as a general practice, this act is served on a taxpayer several years after the order for payment.

The Court considers that it is not necessary in this case to answer the question whether the provisions of Article 6 of the Convention are applicable to the situation complained of since, even if they were, the applicant’s complaint would in any case be inadmissible, for the following reasons.

The Government have clarified that the order of 8 September 1997 was not final, the individuals’ pecuniary rights being affected by the role, an act which can be appealed first before the competent Fiscal Boards and then before the Court of Cassation . This is not contested by the applicant.

In these circumstances, the Court considers that under Italian law it will be open to the applicant to contest the taxes and the tax surcharges imposed on her before a “tribunal” satisfying the requirements of Article 6 § 1 of the Convention.

It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, unanimously, the Court

DECLARES THE APPLICATION INADMISSIBLE .

Erik Fribergh Christos Rozakis

Registrar President