CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 27 novembre 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 28598/95                       by BIELECTRIC Srl and Antonio BIONDI                       against Italy        The European Commission of Human Rights (First Chamber) sitting in private on 27 November 1996, the following members being present:              Mrs    J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  L. LOUCAIDES                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ              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 26 June 1995 by BIELECTRIC Srl and Antonio BIONDI against Italy and registered on 19 September 1995 under file No. 28598/95;        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 company, having its registered office in Ospedaletto (Pisa) and acting through the applicant, who is its legal representative and managing director, has been in liquidation since 29 May 1995.        The facts of the case, as submitted by the applicants, may be summarised as follows.   a)    Particular circumstances of the case        In 1983, the applicant company commissioned company X to build a 1400 m sq. factory building in Ospedaletto (Pisa).        On 4 April and 20 June 1986, the managing director of the applicant company - the second applicant - acting in the capacity of director of the construction works ("direttore dei lavori"), reported to the Construction Office ("Genio Civile") that the executive plans ("disegni esecutivi") were lacking and that some construction errors were being committed.        On 5 September 1986, company X filed with the competent authorities the final report on the construction ("relazione di fine lavori").        On 1 November 1986, the applicant reported to the Construction Office the existence of certain defects in the structure of the shed and requested that they inspect the shed.        On 11 December 1986, the applicant filed with the Construction Office another report on the construction, in which he pointed out the existence of certain defects in the structure.        On 23 December 1986, the Pisa Fire Brigade inspected the shed and reported to the Pisa Town Council that its structure presented certain important construction errors.        On 24 January 1987, the Construction Office inspected the shed and established the existence of certain defects in its structure. It held that the importance of such defects was to be ascertained through further practical tests for which it was not itself competent.        On 27 January 1987, the Pisa Town Council declared that the shed was dangerous and unfit for use ("inagibile") and therefore warned the applicant company not to continue the works on the shed until the errors were rectified.        On 27 May 1988, the person in charge of the test ("collaudo statico") informed company X that he could not proceed with the test as the executive plans had not been duly filed with the Construction Office.        On 30   March 1989, the applicant filed a criminal complaint against the managing director of company X for fraud and for filing defective executive plans in breach of the relevant anti-seismic legislation.        On 27 March 1991, the person in charge of the test informed the applicant company that X had not yet submitted the requested drawings and that he could not therefore proceed with the test.        As a consequence of the lack of final testing, according to Article 8 of Law 1086/71 no certificate of fitness for occupation ("licenza di abitabilità") could be issued by the Pisa Town Council.        On 20 June 1991 the Chief Engineer of the Construction Office declared to the Public Prosecutor that the factory shed presented certain defects, but that there was no clear violation of the anti- seismic regulations and that there was no actual danger for public safety.        On 23 June 1992 the Chief Engineer of the Construction Office reported to the Public Prosecutor that all the necessary documents concerning the construction of the factory shed had been filed with the Construction Office.        On 23 February 1993, the criminal complaint of 30 March 1989 was not pursued by the Pisa Judge for Preliminary Investigations, who held that the conduct of the managing director of company X did not amount to fraud but simply to a breach of contract, and that in any event the offence under the anti-seismic legislation was time-barred and extinguished by an amnesty.        On 1 March 1993 the Chief Engineer of the Construction Office, on the initiative of Regional Council of Tuscany, filed a criminal complaint against the planner of company X for violations of the relevant anti-seismic legislation, in particular for not filing all the necessary documents concerning the construction of the factory shed. On 4 November 1993 this complaint was dismissed by the Pisa Judge for Preliminary Investigations as being time-barred.        On 25 May 1993, the applicant filed with the Pisa Public Prosecutor a criminal complaint against the Chief Engineer of the Construction Office for giving false information to the Public Prosecutor on 20 June 1991 and 23 June 1992 and neglect of duty ("omissione d'atti d'ufficio"). By a decision of 13 April 1994, the judge for Preliminary Investigations dismissed the complaints concerning the false information of 20 June 1991 and the neglect of duty, and fixed a hearing for 9 May 1994 for the third complaint (false information of 23 June 1992). After the hearing, by a decision of 19 October 1994 the Judge for Preliminary Investigations dismissed the remainder of the complaint.        In the meantime, on 28 July 1993 the President of the Regional Council of Tuscany informed the press of having filed a criminal complaint against the applicant for insult ("oltraggio").        As a consequence of the dismissals of 23 February 1993 and 4 November 1993, pursuant to Article 25 of Law 64/74 competence to issue directions as to the compliance of the construction works with the relevant legislation passed from the Judge for Preliminary Investigations to the President of the Regional Council of Tuscany (see below).        By a decree of 6 October 1994 the President of the Regional Council of Tuscany ordered the applicant company and company X to file certain documents concerning the construction of the shed with the Construction Office within thirty days of the order itself.        On 19 December 1994 the Pisa Construction Office informed the President of the Regional Council that company X had filed certain documents.        On 13 March 1995 the Pisa Town Council, after inspecting the factory building on 9 March 1995, ascertained that certain executive plans had not been deposited and that the structure presented important differences from the original plans. It concluded that the factory building was not in accordance with law 1086/71 and informed the applicant company, the President of the Regional Council of Tuscany and the Construction Office as well as the Prefect and the Magistrate accordingly.        On 20 March 1995 the President of the Regional Council acknowledged that his previous order of 6 October 1994 had been complied with.        On 16 May 1995 the Pisa Town Council reiterated that the factory building was not in accordance with law 1086/71.        The applicant filed a criminal complaint against the President of the Regional Council of Tuscany with the Florence Public Prosecutor.        By decision of 11 September 1995, the Florence Judge for Preliminary Investigations dismissed the complaint and held that the President of the Regional Council had fulfilled his legal obligations and that the decree of 6 October 1994 had made it possible to proceed with the testing of the factory building.        The applicant applied to the Pisa Town Council seeking the withdrawal of the order not to pursue any construction activity on the factory building. However, by a letter of 6 February 1996, the Pisa Town Council reiterated that the factory building as built was not in accordance with the original plans and that although the construction works had been completed, the final report on the construction and the report on the final test were still lacking.        The civil proceedings        On 9 April 1987, the applicant company summoned company X to appear before the Arezzo court, requesting that company X be ordered to carry out all the works and amendments necessary to bring the factory building into compliance with the law and the instructions given by the Pisa fire brigade in December 1986.        In a judgment of 4 October 1989, filed with the Registry on 16 November 1989, the Arezzo court held that the building of the shed did not constitute a work under a contract ("appalto") but a sale, and that the factory building was in accordance with all the legal requirements, the alleged defects being merely aesthetic.        On 21 June 1990, the applicant company lodged an appeal against this judgment before the Florence Court of Appeal; the latter, in a judgment of 26 February 1993, filed with the Registry on 13 May 1993, held that the defects in the factory building were merely aesthetic and did not affect the structure.        On 12 May 1994, the applicant company lodged an appeal on points of law; the proceedings are still pending before the Court of Cassation.   b)    Relevant domestic law        According to the relevant legislation (Laws no. 1086/71 and no. 64/74 and Regional Law no. 88/82), all building plans must be filed with the Construction Office before beginning the construction works; as regards constructions in seismic areas, the Construction Office carries out sample controls of the substance of the plans.        Competence to monitor the compliance of the constructions with the relevant legislation is vested in the mayor, the police, and the technical staff of the town council. The police must immediately report any alleged violation to the Construction Office. The Mayor and the Chief Engineer of the Construction Office, after drafting a technical report on the alleged violation, must inform the competent Public Prosecutor thereof. Any violation of this legislation entails criminal liability; the criminal proceedings resulting from the report concern both the criminal liability and the bringing of the building into compliance with the law. The competence to issue directions as to the changes to be made on the building is vested in the Magistrate when the proceedings end with the finding of a violation of the law and the conviction of the person responsible for such violation, and in the mayor when the criminal charge related to the violation is dropped on grounds of an amnesty or as time-barred.   COMPLAINTS   1.    The applicant company mainly complains about the fact that, notwithstanding numerous criminal complaints and requests to various authorities, it has been impossible for it to bring its factory shed into compliance with the anti-seismic regulations and therefore to start its manufacturing activity. According to the applicant company, its problems reside in the conduct of the administrative authorities, namely in the inconsistency between the Pisa Town Council and the Regional Council of Tuscany, which seem not to agree on whether or not the factory shed complies with the relevant regulations and therefore frustrate the procedure which should lead to the determination of what must be done to bring the factory shed into compliance with the law. It complains in particular that various criminal complaints it had filed against, inter alia, the Chief Engineer of the Construction Office and the President of the Regional Council of Tuscany were not pursued.        The applicant company invokes Article 1 of Protocol no. 1 and Article 6 of the Convention in this respect.   2.    The applicant complains under Article 8 of the Convention about the conduct of the President of the Regional Council of Tuscany in that on 28 July 1993 the latter publicly accused him of a crime of which he was later acquitted.   3.    The applicant company finally alleges a violation of Article 5 of the Convention, in that it has been prevented from starting its manufacturing activity in a safe environment.   THE LAW   1.    The applicant company alleges an interference with its right to the peaceful enjoyment of its possessions in breach of Article 1 of Protocol no. 1 (P1-1) and a violation of Article 6 (Art. 6) of the Convention on the ground of the impossibility for it for almost ten years to obtain from the Italian authorities indications as to the changes on its factory building required in order to bring it into compliance with the anti-seismic legislation. It also complains that numerous criminal complaints it had filed against inter alia the Chief Engineer of the Construction Office and the President of the Regional Council of Tuscany were not pursued.        As concerns the impossibility for the applicant company to start its manufacturing activity because of the alleged defects in its structure, the Commission observes that the construction of the factory shed at issue was entrusted to a constructor, which, according to the applicant company, committed several construction errors which led, on the applicant company's initiative, to the declaration of unfitness for use and dangerousness and thus to the blocking of the works in January 1987. The Commission further observes that in April 1987 the applicant company instituted civil proceedings against the constructor requesting it to be ordered to carry out all the works and amendments necessary to bring the factory building into compliance with the law.        The Commission notes that the object of these proceedings coincides with the object of the present application; it considers that, apart from the conduct of the administrative authorities, should the applicant company be successful, the constructor would have to carry out the necessary works and would be liable for any prejudice suffered by the applicant company.        However, the Commission notes that these proceedings are currently pending before the Court of Cassation; it considers therefore that the applicant company cannot claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention at this stage of the proceedings. This part of the application is thus premature and must be rejected in pursuance of Article 27 para. 2 (Art. 27-2) of the Convention.        As regards the applicant company's complaint that its case did not receive a fair hearing within the meaning of Article 6 (Art. 6) of the Convention given that the criminal complaints it had filed were not pursued, the Commission recalls that under Article 6 para. 1 (Art. 6-1) of the Convention everyone is entitled, in the determination of either his civil rights and obligations or of any criminal charge against him, to a fair hearing by a tribunal. However, the Commission also recalls its established case-law to the extent that the right of access to court does not include a right to have criminal proceedings instituted against third persons (cf. amongst others No. 9777/82, Dec. 14.7.83, D.R. 34, p. 158).        It follows that this aspect of the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   2.    As regards the applicant's complaint under Article 8 (Art. 8) of the Convention relating to the adverse consequences to his reputation of the declarations made by the President of the Region Tuscany to the press, the Commission is not required to decide whether or not this complaint discloses any appearance of a violation   of the Convention as it is inadmissible for the following reasons.        The Commission recalls that, pursuant to Article 26 (Art. 26) of the Convention, it can only deal with a matter after all domestic remedies have been exhausted and within a period of six months from the date on which the final decision was taken.        In the present case, even assuming that Article 8 (Art. 8) is applicable in the present case, that the President of the Regional Council was acting in his capacity as civil servant and that his conduct can thus engage the responsibility of the State, and that the applicant company has exhausted all the domestic remedies which were available to it under Italian law, the Commission observes that the observations which the President of the Region Tuscany made to the press date back to 28 July 1993, which is more than six months before the filing of the present application (No. 20730/92, Dec. 18.10.95, unpublished).        It follows that this complaint must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.    Finally the Commission has examined the applicant company's complaint that it is being prevented from starting its manufacturing activity in a safe environment. However, it considers that, in so far as it has been substantiated, this complaint does not disclose any appearance of a violation of the Convention.        For these reasons, the Commission, unanimously,          DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber