FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 48145/99
by Giuseppe FABI
against Italy
The European Court of Human Rights (First Section), sitting on 27 June 2002 as a Chamber composed of
MrC.L. Rozakis, President,
MrG. Bonello,
MrP. Lorenzen,
MrsN. Vajić,
MrA. Kovler,
MrV. Zagrebelsky,
MrsE. Steiner, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application lodged on 20 April 1999,
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, living in Rome. He is represented before the Court by Mr A. Barbàra, a lawyer practising in Rome.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of an apartment in Rome, which he had let to A.M.S.
In a registered letter of 10 April 1987, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1987 and asked her to vacate the premises by that date.
In a writ served on the tenant on 14 October 1987, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.
By a decision of 1 February 1988, which was made enforceable on 22 April 1988, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 1 February 1989.
On 24 May 1989, the applicant served notice on the tenant requiring her to vacate the premises.
On 18 July 1989 he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 25 July 1989.
Between 25 July 1989 and 10 December 1998 the bailiff made fourteen attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the suspension, the applicant was not entitled to police assistance in enforcing the order for possession.
Pursuant to article no. 6 of Law 431/98, the evictions proceedings were suspended until 30 November 2000.
On 11 October 2000, the applicant served a second notice on the tenant requiring her to vacate the premises.
On 3 November 2000, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 28 November 2000.
On February 2001, the applicant recovered possession of the apartment.
THE LAW
The applicant complains under Article 6 of the Convention about the duration of the eviction proceedings.
The Court has also examined this complaint under Article 1 of Protocol No. 1 of the Convention.
The Government state that the Court should not raise an issue ex officio when the applicant has not complained about it.
The Court recalls that the Convention organs have jurisdiction to review in the light of the entirety of the Convention’s requirements circumstances complained of by an applicant. In the performance of their task, they are free to attribute to the facts of the case, as found to be established on the evidence before them, a characterisation in law different from that given by the applicant or, if need be, to view the facts in a different manner (see, Streletz, Kessler and Krenz v. Germany , § 111, Judgment of 22 March 2001 [GC]. This objection should therefore be rejected.
The Government argue that the applicant has not exhausted domestic remedies on the grounds that he 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.
As to the length of the enforcement proceedings, the Government submit that the delay in granting police assistance is justified on grounds of the order of priorities established according to 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 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 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