SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 31224/96
by Antonio DI SABATO
against Italy
The European Court of Human Rights (Second Section), sitting on 15 March 2001 as a Chamber composed of
MrC.L. Rozakis, President,
MrA.B. Baka,
MrG. Bonello,
MrsV. Strážnická,
MrM. Fischbach,
MrsM. Tsatsa-Nikolovska,
MrE. Levits, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 13 October 1995 and registered on 30 April 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 1971 and living in Milan. He is represented before the Court by Mr D. Portinaro, a lawyer practising in Milan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows:
G.G. was the owner of an apartment in Milan, which she had let to A.S.
In a writ served on the tenant on 21 June 1985, G.G. communicated her intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate. By a decision of 4 July 1985, which was made enforceable on 24 July 1985, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 September 1985.
On 15 July 1986 and again on 30 November 1987 and 19 April 1990, G.G. served notice on the tenant requiring him to vacate the premises. On 12 July 1990, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 16 July 1990.
Between 18 July 1990 and 15 October 1992, the bailiff made 12 attempts to recover possession, on 18 July 1990, 23 July 1990, 17 September 1990, 27 November 1990, 16 January 1991, 12 March 1991, 7 May 1991, 4 July 1991, 24 September 1991, 11 November 1991, 19 May 1992 and 15 October 1992. Each attempt proved unsuccessful, as G.G. was never granted the assistance of the police in enforcing the order for possession.
On 29 March 1993, the applicant became the owner of the apartment.
On 26 April 1993, he made a statutory declaration that he urgently required the premises as accommodation for himself.
On 29 April 1993, he served notice on the tenant requiring him to vacate the premises
On 20 May 1993, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 11 June 1993.
Between 11 June 1993 and 27 September 1996, the bailiff made 15 attempts to recover possession, on 11 June 1993, 21 September 1993, 23 November 1993, 8 February 1994, 17 May 1994, 20 September 1994, 29 November 1994, 21 February 1995, 26 May 1995, 19 September 1995, 5 October 1995, 19 December 1995, 26 February 1996, 18 June 1996 and 27 September 1996.
Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
At the end of October 1996, the tenant spontaneously 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
THE LAW
1. 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 as follows:
“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 Court considers that the interference complained of amounted to control of the use of property within the meaning of the second paragraph of Article 1, and pursued a legitimate aim in the general interest, as required by that provision (see the Immobiliare Saffi v. Italy [GC], no. 22774/93, 28.7.99, §§ 46 and 48, ECHR-V, and the Scollo v. Italy judgment of 28 September 1995, Series A n° 315-C, p. 26, §§ 30-31).
The Court recalls that an interference “must strike a “fair balance” between the demands of the general interest and the requirements of the protection of the individual’s fundamental rights. The concern to achieve this balance is reflected in the structure of Article 1 as a whole, and therefore also in its second paragraph. There must be a reasonable relationship of proportionality between the means employed and the aim pursued. In determining whether this requirement is met, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question. In spheres such as housing, which plays a central role in the welfare and economic policies of modern societies, the Court will respect the legislature’s judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation” (see the Immobiliare Saffi judgment cited above, § 49).
The Court considers that, in principle, the Italian system of staggering of the enforcement of court orders is not in itself open to criticism, having regard in particular to the margin of appreciation permitted under the second paragraph of Article 1. However, such a system carries with it the risk of imposing on landlords an excessive burden in terms of their ability to dispose of their property and must accordingly provide certain procedural safeguards so as to ensure that the operation of the system and its impact on a landlord’s property rights are neither arbitrary nor unforeseeable (see, mutatis mutandis, the Immobiliare Saffi judgment cited above, § 54).
The Court must thus ascertain whether, in the instant case, a balance was maintained between the relevant interests (see the Scollo v. Italy judgment cited above, § 37).
The Court observes that, on 29 March 1993, the applicant acquired title over the property when the eviction proceedings were still pending. On 26 April 1993, he made the declaration of urgent necessity. After serving notice on 29 April 1993, the applicant was made to wait approximately three years and six months to recover possession of his apartment. Then he recovered possession of his apartment in October 1996.
The Court finds that the restriction on the applicant’s use of his flat, which restriction lasted three years and six months, did not impose on him an individual and excessive burden, contrary to the requirements of the second paragraph of Article 1 of Protocol No. 1 (see, a contrario, the Scollo judgment, cited above, § 40; see also, mutatis mutandis, Caselli v. Italy (dec.), no. 36679/97, 20 January 2000, unpublished).
2. The applicant further complains that the length of the enforcement proceedings was excessive and in breach of Article 6 § 1 of the Convention, whose pertinent part 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 Court considers that this complaint should be examined in connection with the more general right to a court (see the Immobiliare Saffi judgment cited above, § 61).
The right to a court as guaranteed by Article 6 also protects the implementation of final, binding judicial decisions, which, in States that accept the rule of law, cannot remain inoperative to the detriment of one party (see, mutatis mutandis, the Hornsby v. Greece judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, p. 510, § 40). Accordingly, the execution of a judicial decision cannot be unduly delayed. However, a stay of execution of a judicial decision for such period as is strictly necessary to enable a satisfactory solution to be found to public-order problems may be justified in exceptional circumstances (see the Immobiliare Saffi judgment cited above, § 69).
In the present case, the Court notes that after the applicant sought the enforcement of the eviction order and before he recovered possession of his apartment, he had to wait for three years and six months. Having in mind the public order problems which Italy admittedly has had to face in the field of housing, the Court considers that this delay was not so long as to deprive the order for possession of all useful effect or of undermining its substance (see, a contrario, the Immobiliare Saffi judgment cited above, § 73; see also, mutatis mutandis, Caselli v. Italy (dec.), no. 36679/97, 20 January 2000, unpublished).
Further, the Court considers, bearing in mind the practical difficulties raised by the enforcement of a very large number of evictions, that the length of the proceedings at issue was not unreasonably long (see, a contrario, the Scollo judgment cited above, § 44 in fine).
It follows that this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Erik FriberghChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy