SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 30879/96
by Raffaele CILIBERTI
against Italy
The European Court of Human Rights (Second Section), sitting on 22 June 2000 as a Chamber composed of
MrC.L. Rozakis, President,
MrA.B. Baka,
MrB. Conforti,
MrP. Lorenzen,
MrsM. Tsatsa-Nikolovska,
MrE. Levits,
MrA. Kovler, judges,
andMrE. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 6 March 1996 and registered on 28 March 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 1930 and living in Torre del Greco.
He is represented before the Court by Mr Antonio Orpello, a lawyer practising in Torre del Greco.
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 Torre del Greco, which he had let to A.P.
In a writ served on the tenant on 24 October 1990, the applicant informed the tenant of his intention to terminate the lease on expiry of the term on 31 December 1991 and summoned him to appear before the Naples Magistrate.
By a decision of 30 November 1990, which was made enforceable on the same day, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992.
On 11 March 1993, the applicant made a statutory declaration that he urgently required the premises as accommodation for his daughter.
On 19 March 1993, the applicant served notice on the tenant requiring him to vacate the premises.
On 7 April 1993, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 26 April 1993.
Between 26 April 1993 and 16 January 1997, the bailiff made 9 attempts to recover possession, on 26 April 1993, 5 November 1993, 9 February 1994, 31 May 1994, 10 October 1994, 23 January 1995, 25 March 1996, 23 September 1996 and 16 January 1997.
Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
On 28 April 1997, 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 about his prolonged inability - through lack of police assistance - to recover possession of his apartment.
2.The applicant further complains about the duration of the eviction proceedings.
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 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 applicant argues that the impossibility to repossess his apartment during many years from the issue of the order for possession amounts to a violation of his right under Article 1 of Protocol No. 1.
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 impossibility to enforce the order issued by the magistrate, despite the fact that he had made a statutory declaration that he needed the apartment as accommodation for his daughter violates his right to a 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