SECOND SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 34999/97
by C. S.p.A.
against Italy
The European Court of Human Rights (Second Section), sitting on 13 September 2001 as a Chamber composed of
MrC.L. Rozakis, President,
MrA.B. Baka,
MrL. Ferrari Bravo,
MrG. Bonello,
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 16 September 1996 and registered on 20 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 partial decision of 4 May 2000,
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 a company based in Lainate. It is represented before the Court by Mr B. Dell’Acqua, a lawyer practising in Legnano.
The facts of the case, as submitted by the parties, may be summarised as follows:
In 1987, the applicant became the owner of several apartments in Milan, which had all been leased by the previous owner.
1) Proceedings against A.D.P.
In a writ served on the tenant on 2 October 1987, the applicant communicated its intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.
By a decision of 13 October 1987, which was made enforceable on 20 October 1987, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 March 1990.
On 21 April 1990, the applicant served notice on the tenant requiring him to vacate the premises.
On 11 May 1990, it served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 8 June 1990.
Between 8 June 1990 and 8 November 1999, the bailiff made thirty-five attempts to recover possession. 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 19 May 2000, the applicant recovered possession of the apartment.
2) Proceedings against J.D.
In a writ served on the tenant on 2 October 1987, the applicant communicated its intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.
By a decision of 13 October 1987, which was made enforceable on 20 October 1987, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 March 1989.
On 20 November 1990, the applicant served notice on the tenant requiring him to vacate the premises.
On 10 December 1990, it served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 4 January 1991.
Between 4 January 1991 and 11 November 1997, the bailiff made twenty-seven attempts to recover possession. 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.
In March 1998, the tenant vacated the premises.
3) Proceedings against C.F.C.
In a writ served on the tenant on 2 October 1987, the applicant communicated its intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.
By a decision of 13 October 1987, which was made enforceable on 20 October 1987, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 March 1990.
On 21 April 1990, the applicant served notice on the tenant requiring him to vacate the premises.
On 11 May 1990, it served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 8 June 1990.
Between 8 June 1990 and 11 April 2000, the bailiff made thirty-eight attempts to recover possession. 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.
The applicant has not recovered possession of the apartment yet.
4) Proceedings against V.D.
In a writ served on the tenant on 2 October 1987, the applicant communicated its intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.
By a decision of 13 October 1987, which was made enforceable on 20 October 1987, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 March 1990.
On 21 April 1990, the applicant served notice on the tenant requiring him to vacate the premises.
On 11 May 1990, it served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 8 June 1990.
Between 8 June 1990 and 8 November 1999, the bailiff made thirty-four attempts to recover possession. 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.
The applicant has not recovered possession of the apartment yet.
5) Proceedings against V.L.
In a writ served on the tenant on 2 October 1987, the applicant communicated its intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.
By a decision of 13 October 1987, which was made enforceable on 20 October 1987, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 March 1990.
On 21 April 1990, the applicant served notice on the tenant requiring him to vacate the premises.
On 11 May 1990, it served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 8 June 1990.
Between 8 June 1990 and 1 February 2000, the bailiff made thirty-eight attempts to recover possession. 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.
The applicant has not recovered possession of the apartment yet.
THE LAW
The applicant complains under Article 1 of Protocol No. 1 to the Convention that its inability to recover possession of its apartments amounts to a violation of the right to property.
The applicant further complains under Article 6 of the Convention about the duration of the eviction proceedings.
The Government argue that the applicant has not exhausted domestic remedies on the grounds that it failed to challenge the refusal of police assistance before the administrative courts.
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 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 out of 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. 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 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 remainder of the application admissible, without prejudging the merits of the case.
Erik FriberghChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy