SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 33966/96
by Franco BASTREGHI
against Italy
The European Court of Human Rights (Second Section), sitting on 22 March 2001 as a Chamber composed of
MrC.L. Rozakis, President,
MrA.B. Baka,
MrG. Bonello,
MrP. Lorenzen,
MrsM. Tsatsa-Nikolovska,
MrE. Levits,
MrA. Kovler, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 30 September 1996 and registered on 26 November 1996,
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 1922 and living in Brussels. He is represented before the Court by Mrs M. Falatti, a lawyer practising in Florence.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows:
The applicant is the owner of an apartment in Florence, which he had let to A.D.G.
In a writ served on the tenant on 15 December 1989, the applicant informed the tenant of his intention to terminate the lease and summoned him to appear before the Florence Magistrate. The first hearing was held on 14 January 1991. The applicant asked for a provisional order for possession. By a decision of 10 February 1992, the Florence Magistrate refused to make a provisional order.
By a decision of 5 October 1992 which was made enforceable on 1 December 1993, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 October 1993.
On 10 December 1993, the applicant served notice on the tenant requiring him to vacate the premises.
On 11 January 1994, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 3 March 1994.
Between 3 March 1994 and 8 April 1998, the bailiff made 9 attempts to recover possession, on 3 March 1994, 11 October 1994, 12 April 1995, 25 October 1995, 11 April 1996, 23 October 1996, 10 April 1997, 23 October 1997 and 8 April 1998.
Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.
On 15 October 1998, the tenant vacated the premises.
B. Relevant domestic law
The relevant domestic law is described in the judgment Immobiliare Saffi v. Italy [GC], no. 22774/93, 28.7.99, §§ 18-35, ECHR-V.
COMPLAINTS
1. The applicant complains under Article 1 of Protocol No. 1 about his prolonged inability - through lack of police assistance - to recover possession of his apartment.
2. The applicant further complains under Article 6 § 1 of the Convention about the duration of the eviction proceedings and about the denial of his right of access to a court.
THE LAW
The applicant complains that his inability to recover possession of his apartment amounted to a violation of Article 1 of Protocol No. 1, which provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The applicant further complains about the duration of the eviction proceedings. Article 6 of the Convention, insofar as relevant, provides as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The Government argue that the applicant has not exhausted domestic remedies. They submit that he has failed to issue proceedings in the administrative courts challenging the refusal of police assistance and to raise, in the same proceedings, the constitutionality of the legislative provisions concerned.
The applicant contests the Government’s arguments. He argues that the prefectoral committee never adopted a formal decision refusing police assistance and that, at any event, the proceedings in the administrative courts would not have been effective, given the length of these proceedings before Italian courts.
The Court recalls that it has already dismissed this objection in the Immobiliare Saffi case (see the Immobiliare Saffi judgment cited above, §§ 40-42). As the Government have not submitted any new argument in support of their objection, the Court sees no reason to depart from its previous finding. This exception should therefore be rejected.
The Government further argue that the arrangements for staggering the police assistance were not part of the judicial process for enforcement of orders for possession, since police intervention was an administrative issue, entirely separate from and independent of the judicial process. That administrative phase can not be said to come within the scope of Article 6.
The Court recalls that it has already held that Article 6 of the Convention is applicable to the tenants eviction proceedings (see the Immobiliare Saffi judgment cited above, §§ 62-63). As the Government have not submitted any new argument in support of their objection, the Court sees no reason to depart from its previous finding. This exception should therefore also be rejected.
On the merits, 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.
The applicant argues that the impossibility to repossess his apartment during 5 years from the issue of the order for possession amounts to a violation of his right under Article 1 of Protocol No. 1. He argues that in the Italian legal system tenants are overprotected.
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.
The applicant argues that the delay in the enforcement of the order issued by the Florence Magistrate resulted in a denial of his right of access to a court. The applicant argues that the refusal of the administration to enforce the order issued by the magistrate has interfered with the power of the judiciary.
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