FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 62913/00
by Rosa ACCARDO
against Italy
The European Court of Human Rights (First Section), sitting on 8 January 2004 as a Chamber composed of:
MrC.L. Rozakis, President,
MrsF. Tulkens,
MrsN. Vajić,
MrE. Levits,
MrA. Kovler,
MrV. Zagrebelsky,
MrsE. Steiner, judges,
and Mr S. Nielsen, Deputy Section Registrar,
Having regard to the above application lodged on 26 August 2000,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Rosa Accardo, is an Italian national who was born in 1936 and lives in Torre Del Greco (Naples). She was represented before the Court by Mrs C. Ascione, a lawyer practising in Torre Annunziata (Naples). The respondent Government were represented by their Agents, Mr U. Leanza and Mr I.M. Braguglia, and by their successive co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of an apartment in Torre del Greco, which she had let to G.V.
In a writ served on the tenant on 2 July 1987, the applicant informed the him that she intended to terminate the lease on expiry of the term on 31 December 1988 and summoned him to appear before the Torre del Greco Magistrate.
By a decision of 9 October 1987, which was made enforceable on the same day, the Torre del Greco Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1989.
On 20 February 1990, the applicant served notice on the tenant requiring him to vacate the premises.
On 20 March 1990, she informed the tenant that the order for possession would be enforced by a bailiff on 10 May 1990.
Between 10 May 1990 and 13 September 1999, the bailiff made twenty-one attempts to recover possession.
Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
On 3 March 2000, the applicant recovered possession of the apartment.
THE LAW
The applicant complains under Article 6 of the Convention about the duration of the eviction proceedings.
The Court has also examined this complaint under Article 1 of Protocol No. 1 to the Convention.
The Government objected that the applicant had failed to exhaust domestic remedies as she had not sought judicial review in the administrative courts of the refusal to provide police assistance.
The Court notes that it has previously had occasion to dismiss this objection in the Immobiliare Saffi case (Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 40-42, ECHR 1999-V). It sees no reason to depart from that finding and therefore dismisses that objection.
In their observations, which the Registry received on 30 October 2002, the Government argued that the applicant had not exhausted domestic remedies. They maintained that since the Court of Cassation’s judgment of 18 June 2002, which was lodged with the registry of that court on 26 July 2002, it was clear that a remedy under the Pinto Act was also available in respect of eviction proceedings, with the result that anyone considering himself a victim of a violation of Article 6 § 1 on account of the inordinate length of such proceedings could seek compensation from the relevant court of appeal. That applied to any complaint under Article 6 § 1. The Government submitted that the objection of a failure to exhaust domestic remedies also covered the complaint under Article 1 of Protocol No. 1, as the matter complained of was a consequence of the length of proceedings.
The applicant contended that this remedy was optional rather than compulsory since the term used in section 6 of the Act was “entitled” and not “must”. She relied on the tempus regit actum principle to dispute the retroactive application of the Act.
The Court dismissed a similar objection in the Mascolo case, holding that the applicant was absolved from the obligation to exhaust domestic remedies in the special circumstances of that case (Mascolo v. Italy (dec.), no. 68792/01, 16 October 2003). The Court sees no reason to depart from that finding here and the Government’s objection must, therefore, be dismissed.
The Government maintain that the measures in question amount to a control of the use of property which pursues the legitimate aim of avoiding the social tensions and troubles to public order that would occur if a considerable number of orders for possession were to be enforced simultaneously. In their opinion, the interference with the applicant’s property rights was not disproportionate; therefore, there is no violation of Article 1 of Protocol No. 1.
As to the length of the enforcement proceedings, the Government submit that the delay in granting police assistance is justified on grounds of the order of priorities established according to public-safety requirements. In any event, the Government stress that following the entry into force of Law no. 431 of 9 December 1998, the Prefect is no longer competent to determine the order of priority for the enforcement of the evictions. The date of enforcement should now be set by the District Court.
The Court considers that the application raises complex and serious issues which require a determination on the merits. It follows that it cannot be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the application inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Søren NielsenChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy