FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 34742/97
by A.M.M.
against Italy
The European Court of Human Rights (First Section), sitting on 15 November 2001 as a Chamber composed of
MrC.L. Rozakis, President,
MrsF. Tulkens,
MrG. Bonello,
MrP. Lorenzen,
MrsN. Vajić,
MrA. Kovler, judges,
MrL. Ferrari Bravo, ad hoc judge,
and Mr E. Fribergh, Section Registrar
Having regard to the above application introduced with the European Commission of Human Rights on 7 December 1996 and registered on 4 February 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant is an Italian national, born in 1938 and living in Fiumicino (Rome). She is represented before the Court by Mr F.C. Bianca, a lawyer practising in Rome.
The applicant’s father was the owner of an apartment in Rome, which he had let to M.G.
In a writ served on the tenant on 9 March 1990, he communicated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.
By a decision of 20 June 1990, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 July 1991.
On 17 October 1991, the applicant’s father served notice on the tenant requiring him to vacate the premises.
On 15 November 1991, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 17 December 1991.
Between 17 December 1991 and 17 February 1995, the bailiff made fifteen attempts to recover possession. In the meantime, on 10 March 1992, the applicant’s father died and the applicant inherited the apartment.
On 6 December 1993 and 28 April 1995, the applicant made a statutory declaration that she urgently required the premises as accommodation for her daughters.
Between 28 April 1995 and 15 September 1999, the bailiff made seventeen attempts to recover possession. Each attempt proved unsuccessful, as the applicant, since 30 September 1997, when she became party to the eviction proceedings, was never granted the assistance of the police in enforcing the order for possession.
On 3 April 2000, the applicant recovered the apartment because the tenant vacated the premises spontaneously.
THE LAW
1. The applicant complains under Article 1 of Protocol No. 1 to the Convention that her inability to recover possession of her apartment amounted to a violation of the right to property.
The Government argue that the applicant has not exhausted domestic remedies on the grounds that she failed to challenge the refusal of police assistance before the administrative courts.
The applicant contests the Government’s arguments arguing that the prefectoral committee never adopted a formal decision refusing police assistance.
The Court recalls that it has already dismissed this objection in the Immobiliare Saffi case (see the judgment Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 40-42, ECHR 1999-V). The Court sees no reason to depart from its previous finding. This objection should therefore be rejected.
The Court considers that this complaint 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 this complaint inadmissible has been established.
2. The applicant further complains under Article 6 of the Convention about the duration of the eviction proceedings and that the delay in the enforcement of the order issued by the Rome Magistrate resulted in a denial of her right of access to a court.
The Government argue that the arrangements for staggering the police assistance were an administrative issue, entirely separate from and independent of the judicial process and therefore outside the scope of Article 6.
The Court recalls that it has already held that Article 6 of the Convention is applicable to the tenant’s eviction proceedings (see the Immobiliare Saffi judgment cited above, §§ 62-63). The Court sees no reason to depart from its previous finding. This objection should therefore be rejected.
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.
As to the length of the enforcement proceedings, the Government maintain that the delay in providing the assistance of the police is justified by the protection of the public interest. 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.
Erik FriberghChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy