FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 52081/99
by Ettore CARACCIOLO
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,
MrE. Levits,
MrA. Kovler,
MrV. Zagrebelsky,
MrsE. Steiner,
MrK. Hajiyev, judges,
and Mr S. Nielsen, Deputy Section Registrar,
Having regard to the above application lodged on 1 October 1999,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ettore Caracciolo, is an Italian national who was born in 1933 and lives in Milan. He is represented before the Court by Mr R. Savasta, a lawyer practising in Milan. The respondent Government are 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 was the owner of an apartment in Milan, which he had let to G.R. and R.M.
In a writ served on the tenants on 8 February 1983, the applicant informed them of his intention to terminate the lease and summoned them to appear before the Milan Magistrate.
By a decision of 8 March 1983, which was made enforceable on 8 May 1983, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 July 1984.
On 14 January 1985, the applicant served notice on the tenants requiring them to vacate the premises.
On 8 February 1986 he informed the tenants that the order for possession would be enforced by a bailiff on 25 February 1986.
Between 25 February 1986 and 1 July 1999, the bailiff made fifty-five attempts to recover possession. Each attempt proved unsuccessful as the applicant was not entitled to police assistance in enforcing the order for possession.
On 28 July 1999 the applicant sold the apartment.
THE LAW
The applicant complains under Article 1 of Protocol No. 1 to the Convention that his inability to recover possession of his apartment amounted to a violation of the right to property.
The applicant also complains under Article 6 of the Convention about the duration of the eviction proceedings.
The applicant further states that he complains ad abundantiam under Article 13 of the Convention about the lack of an effective remedy during the enforcement proceedings as regards the activities of the prefect and the statutory prefectoral committee. He refers to Article 13 in case this point was not considered absorbed by the other articles on which he relies.
The Government objected that the applicant had failed to exhaust domestic remedies as he 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 the objection.
In their observations, which the Registry received on 30 October 2002, the Government argued that the applicant had not exhausted domestic remedies. They stated 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 to be 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 their objection based on the failure to exhaust domestic remedies also covered the applicant’s complaint under Article 1 of Protocol No. 1 since the matter complained of was a consequence of the length of proceedings.
The applicant underlined that the Government objection was filed too late, with the result that it was by then impossible for him to try that remedy. Furthermore, he pointed out that prior to the Court of Cassation’s judgment, the Italian authorities had affirmed that the Pinto Act did not apply to eviction proceedings; indeed, they had made representations to that effect to the Court of Cassation. Nor did the applicant share the Government’s view that, because the complaint under Article 1 of Protocol No. 1 originated in the length of the proceedings, the Pinto Act would afford a remedy for it.
The Court recalls that it 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 in the instant case. 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 social tensions and the public order problems 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 was 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 was justified, having regard to the need to establish an order of priorities in accordance with 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 was no longer competent to determine the order of priority for the enforcement of 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.
As far as there may be a possible complaint under Article 13, the Court recalls that in the eviction of tenant cases the complaint related to Article 6 is generally examined in connection with the more general right of access to a court (see Immobiliare Saffi, cited above, § 61). Therefore it considers that it is not necessary to examine the case also under Article 13.
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