AS TO THE ADMISSIBILITY OF
Application No. 23924/94
by C.A.R. Srl
against Italy
The European Commission of Human Rights (First Chamber) sitting in
private on 27 June 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 22 September 1993
by C.A.R. Srl against Italy and registered on 19 April 1994 under file
No. 23924/94 ;
Having regard to the Commission's decision of 6 September 1995
to communicate the complaint related to the impossibility for the
applicant company to recover possession of its premises;
Having regard to the observations submitted by the respondent
Government on 8 November 1995 and the observations in reply submitted
by the applicant company on 2 January 1996;
Having regard to the additional observations submitted by the
respondent Government on 1 April 1996 and by the applicant company on
2 April 1996;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Italian building society having its
registered office in Rome and acting through its legal representative
Mr Stefano Cecchi.
The facts of the case, as submitted by the parties, may be
summarised as follows.
By contract of 19 January 1989, the applicant company let 26
villas and 15 garages it owned in Aprilia (Latina) to the company "X".
The latter allowed a group of Somalis to settle in the buildings.
On 11 October 1990, an indefinite number of Somali refugees
occupied the applicant's buildings.
In November 1990, the company "X" ceased to pay the rent.
a) The eviction proceedings before the Rome Magistrate
On 27 November 1990, the applicant company brought an action
before the Rome magistrate in order to evict "X" on the grounds of non
payment of rent; by decision ("convalida di sfratto per morosità") of
9 January 1991, the magistrate ordered the eviction of the tenant with
the assistance of the police. The eviction was fixed to 20 January
1991.
On 18 January 1991, the applicant served on the tenant the order
("precetto") to vacate the area.
However, the Somali refugees occupying the applicant's property
refused to vacate the premises.
Despite numerous requests to the Latina Prefect, the applicant
company was not granted the assistance of the police, as the solution
to its problem was deemed to be of general interest. Numerous attempts
by a bailiff (15 April, 27 May, 17 October, 14 November 1991, 14
February, 18 May, 8 September, 8 October and 11 December 92) to evict
the Somali refugees were therefore unsuccessful.
b) The proceedings before the Latina Public Prosecutor
On 9 January 1993, the applicant filed a criminal complaint with
the Latina Public Prosecutor against the Somali refugees occupying its
premises without any legal title.
The Public Prosecutor carried out preliminary investigations on
the situation of the Somali refugees; in particular, he contacted the
local administrative authorities in order to find out what had been or
was being done to find an alternative suitable accommodation for the
refugees and to help them integrate with the local community.
On 22 May 1993, the Public Prosecutor requested that the
preliminary investigation against the Somali refugees be discontinued.
On 22 June 1993, the applicant opposed the Public Prosecutor's
request to drop the charges against the refugees.
By decree of 15 November 1993, the preliminary investigations
against the Somali refugees were discontinued; the Latina investigating
judge held that the refugees had not unlawfully occupied the
applicant's buildings, but "had been taken there in order to receive
assistance" ("i somali vi venivano fatti affluire onde ricevere
assistenza"). He therefore considered that it was a civil rather than
a criminal matter, namely a case of eviction of tenants that had to be
settled by civil judges.
c) The proceedings before the Latina Magistrate
On 8 February 1993 the applicant applied to the Latina
Magistrate, pointing out that the over 300 refugees refused to vacate
its buildings despite an enforceable decision, and that its property
was deteriorating. It therefore requested the assistance of the police
in evicting the occupants from its premises.
The Latina Magistrate contacted the Lazio administrative
authorities that were responsible for the presence of the Somali
refugees in the region. The local authorities committed themselves to
find a suitable alternative accommodation for the refugees within a
short period of time.
By decision of 25 February 1993, the Magistrate considered that
the solution to the applicant's problem was of general interest and
raised issues of public order, and therefore reserved any decision in
this respect, awaiting the intervention of the regional administrative
authorities "provided that the latter intervention takes place within
a reasonable period of time".
On 11 March 1993, the Magistrate's decision was notified to the
regional administrative authorities.
On 4 June 1993, no action having been taken, the applicant once
again applied to the Latina Magistrate and renewed its request for the
assistance of the police.
By decision of 30 June 1993, the Latina Magistrate observed that
the case could either be considered as an eviction of tenants - and the
competent authority to grant the assistance of the police was thus the
Latina Prefect - or as an unlawful occupation of property by the Somali
refugees - and the competent authority to settle the matter was the
Public Prosecutor. The Magistrate therefore forwarded the applicant's
request to both the Latina Prefect and the Latina Public Prosecutor's
Office.
Meanwhile, on 25 June 1992 the Aprilia town council paid the gas
bill, the water bill and the electricity bill for the refugees.
On 16 March 1993, the Lazio regional authorities paid the
electricity bill for the refugees.
On 22 October 1993, the applicant served on the company "X" a
second order to vacate the premises.
On 3 February 1994, the occupants vacated the buildings following
the intervention of the Lazio Councillorship of local Public Bodies and
Immigration ("Assessorato agli enti locali e all'immigrazione della
Regione Lazio"), that moved them to certain buildings in Anzio.
On 12 February 1994, the applicant, with the assistance of a
bailiff, obtained the possession of its buildings.
COMPLAINTS
1. The applicant company complains that, despite an enforceable
judgment, it has been unable to evict the persons illegally occupying
its buildings for more than three years.
It further complains that it has not received any compensation
from the administrative authorities for the significant financial
damages he suffered in terms of both unpaid rent and damages to the
property; it argues that it was charged the costs of the local
authorities' policy in the social field.
It invokes Article 1 of Protocol no. 1 to the Convention.
2. The applicant company finally complains about the length of the
proceedings.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 September 1993 and
registered on 19 April 1994.
On 6 September 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48 para. 2
(b) of the Rules of Procedure as to the complaint related to the
impossibility of recovering possession of the property.
The Government's written observations were submitted on
8 November 1995. The applicant company replied on 2 January 1996.
The Government and the applicant company submitted additional
observations on 1 April and on 2 April 1996 respectively.
THE LAW
1. The applicant company complains about the inaction of the Italian
authorities with respect to the prolonged occupation sine titulo of its
property by a group of Somali refugees and about the lack of
compensation for the financial prejudice it suffered in this
connection.
It invokes Article 1 of Protocol no. 1 (P1-1), according to
which:
"Every natural and 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".
a) As to the exhaustion of domestic remedies
The respondent Government submit that the applicant company has
not exhausted domestic remedies; they submit that the applicant company
was and is wrong in considering that the present case concerns an
eviction of tenants, because the order for possession directed against
the original tenant could not be enforced against "squatters", namely
occupants sine titulo, as they could not be considered as subtenants.
According to the Government, the applicant company would have had to
institute further civil proceedings against the Somali refugees with
a view to obtaining an acknowledgment of their status of illegal
occupants and subsequently an order for possession against them.
The applicant company disputes the Government's objection. It
claims that the Magistrate's order for possession of 9 January 1991 was
enforceable against any occupant of its property, illegal occupants
included. In any event, it claims that the Somali refugees had been
taken to its property by its tenant "X" in order to receive assistance:
they had thus a sort of right of occupancy and were not "squatters" -
which was clearly stated by the judge for the Preliminary hearing of
Latina in his decision of 15 November 1993. They could therefore be
evicted on the basis of the order for possession issued against "X".
The Commission first observes that the enforcement proceedings
against the Somali refugees were commenced on the basis of an order for
possession directed against the original tenant. It further observes
that on the one hand, the civil judges took for granted that the Somali
refugees were illegal occupants, whereas on the other hand the criminal
judges held that they were not.
However, the Commission considers it unnecessary to decide the
question whether the Somali refugees were squatters or not or whether
the order for possession could or could not be legally enforced against
them.
The Commission observes in fact that the enforceability of the
order for possession of 9 January 1991 against the Somali refugees was
never disputed by the Italian authorities in the course of the various
civil and criminal proceedings instituted by the applicant company.
Even assuming that the refugees were in fact illegal occupants and that
the order for possession directed against the applicant company's
tenant could not be enforced against them, the Commission observes that
the reason for the non-enforcement of the order for possession was of
public order nature, namely the prevention of possible disorders.
The Commission considers that the Government have failed to
demonstrate that such issues of public order would have been handled
in a different manner, had the applicant company exhausted the remedy
indicated by the Government and therefore obtained another order for
possession directly against the Somali refugees.
As regards the possibility for the applicant company to be
compensated for the financial prejudice it suffered in terms of both
unpaid rent and damages to the property, the Commission recalls that
it is its normal practice, where an application has been communicated
to the respondent Government, in part or as a whole, not to declare the
complaint concerned inadmissible for failure to exhaust domestic
remedies unless this matter has been raised by the Government in thier
observations (see for example nos. 24541/94, dec. 26.2.96, and
20251/92, dec. 5.3.96, unpublished). In the present case, the Italian
Government failed to indicate any remedy concerning the above financial
prejudice.
In these circumstances, the Commission finds that the application
cannot be declared inadmissible for non-exhaustion of domestic
remedies.
b) As to the merits
As regards the substance of the case, the Government submit that
the interference with the applicant company's peaceful enjoyment of its
possessions was in accordance with the general interest and not long
enough to place an excessive burden on the applicant company.
The applicant company refers to the significant financial damages
it has suffered and subsequently disputes the Government's allegations
that the interference with its property rights does not amount to a
breach of Article 1 of Protocol no. 1 (P1-1).
The Commission has considered the submissions of the parties. It
finds that the complaints raise serious questions of fact and law which
are of such complexity that their determination should depend on an
examination on the merits. It follows that the complaints cannot be
dismisses as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention. No other ground for declaring
them inadmissible has been established.
2. The applicant company finally complains about the length of the
proceedings. The period to be taken into consideration began on 27
November 1990, when the original tenant was summoned to appear before
the Rome magistrate, and ended on 12 February 1994, when the applicant
company reobtained possession of its premises (see Eur. Court H.R.,
Scollo judgment of 28 September 1995, Series A no. 315-C); the period
under consideration is therefore three years, two months and twenty-
three days.
Article 6 (Art. 6) of the Convention, in so far as relevant,
reads 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 Commission recalls that:
"The reasonableness of the length of the proceedings is to be
assessed in the light of the particular circumstances of the
case, regard being had to the criteria laid down in the Court's
case-law, in particular the complexity of the case, the
applicant's conduct and that of the competent authorities ..."
(Eur. Court H.R., Kemmache judgment of 27 November 1991, Series A
no. 218, p. 27, para. 60).
The Commission considers that, although the proceedings at issue
were not factually complex, they indeed required the solution of an
undoubtedly complex practical and administrative issue, namely finding
an alternative accommodation for the numerous Somali refugees occupying
the applicant company's premises, which involved issues of public order
nature.
The Commission considers that, given the complexity of the case,
the proceedings in question, having lasted almost three years and three
months, are not sufficiently long to conclude that the "reasonable
time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention has
been exceeded in the present case.
It follows that this part of the application is manifestly ill-
founded and must be rejected in pursuance of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE the complaints related to the impossibility
of reobtaining possession of the premises, without prejudging the
merits of the case;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy