Information Note on the Court’s case-law 35

October 2001

Di Cola v. Italy (dec.) - 44897/98

Decision 11.10.2001 [Section II]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Length of pending civil proceedings:  effectiveness of the remedy based on Articles 3 and 6 of the Pinto law (application introduced before entry into force of the law)

The first applicant was the owner of lan d which had been earmarked for expropriation with a view to building residences. In 1981 an order was issued, under an expedited procedure, for occupation of part of the land for a maximum of three years with a view to expropriation in the public interest. In 1984, after the authorities had taken physical possession of the land, the order for occupation of the land was extended for a further two years. A decision to increase the surface area available for occupation was subsequently revoked. In 1989 the fir st applicant brought an action for damages against the municipality which had ordered the occupation of the land under the expedited procedure. She complained that her land had been unlawfully occupied and that the building work had been completed even tho ugh the land had not been formally expropriated and no compensation had been paid. Following the first applicant’s death in May 2000 the other applicants became parties to the domestic proceedings, which are still pending at first instance.

Inadmissible un der Article 6 § 1 (reasonable time): the applicants were entitled to rely on the transitional provision laid down in section 6 of Law no. 89 of 24 March 2001 (the “Pinto Law”). The “Pinto Law” made available a domestic remedy whereby individuals could seek a finding of a breach of the “reasonable time” principle and obtain just satisfaction where appropriate, with the Italian courts applying the principles established in the Court’s case-law. That remedy was capable of providing redress in respect of the ap plicants’ complaint and offered reasonable prospects of success. Admittedly, the application had been lodged before the “Pinto Law” came into force on 18 April 2001. However, various aspects of the case warranted departing from the general principle that t he requirement of exhausting domestic remedies had to be assessed with respect to the point at which an application was lodged. In particular, the transitional provision laid down in section 6 of the “Pinto Law” referred explicitly to applications that had already been lodged with the Court and was therefore designed to bring within the jurisdiction of the Italian courts any application pending before the Court which had not yet been declared admissible. As a result, applicants had a genuine possibility of obtaining redress at domestic level in respect of their complaint. Consequently, since the applicants in the instant case had not applied to the Court of Appeal under sections 3 and 6 of the “Pinto Law”, they had failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention: non-exhaustion.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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