SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 31379/96
by Giancarlo GERMANO
against Italy
The European Court of Human Rights (Second Section), sitting on 30 May 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 13 March 1996 and registered on 6 May 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 1935 and living in Turin.
He is represented before the Court by Mr Enzo Troisi, a lawyer practising in Turin.
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 Turin, which he had let to Y.A.H.
In a registered letter of 14 March 1991, the applicant informed the tenant that the lease had expired on 30 September 1990 and asked him to vacate the premises; but the tenant refused to leave.
In a writ served on the tenant on 23 March 1991, the applicant summoned him to appear before the Turin Magistrate.
By a decision of 12 April 1991, which was made enforceable on 17 April 1991, the Turin Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1991.
On 9 June 1992 and again on 11 July 1994, the applicant served notice on the tenant requiring him to vacate the premises. In the meanwhile negotiations had taken place between the applicant and the tenant in order to settle their dispute, but they failed.
On 25 July 1994 the applicant served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 14 September 1994.
On 14 September 1994, the bailiff made one attempt to recover possession, which proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.
On 28 February 1995, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself.
Between 22 March 1995 and 29 July 1998, the bailiff made 13 attempts to recover possession, on 22 March 1995, 21 June 1995, 17 January 1996, 24 April 1996, 24 July 1996, 23 October 1996, 24 January 1997, 23 April 1997, 23 July 1997, 22 October 1997, 28 January 1998, 29 April 1998 and 29 July 1998.
Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
On 31 October 1998, 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.
COMPLAINTS
1.The applicant complains about his 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 his right of property, as embodied in 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 argue that the applicant has not exhausted domestic remedies. They submit that he has failed to issue proceedings in the administrative courts challenging the refusal of police assistance and to raise, in the same proceedings, the constitutionality of the legislative provisions concerned.
The applicant contests the Government’s arguments. He argues that the proceedings in the administrative courts would have been too expensive.
The Court recalls that it has already dismissed this objection in the Immobiliare Saffi case (see the Immobiliare Saffi judgment cited above, §§ 40-42). As the Government have not submitted any new argument in support of their objection, the Court sees no reason to depart from its previous finding. This exception should therefore be rejected.
The Government further argue that the arrangements for staggering the police assistance were not part of the judicial process for enforcement of orders for possession, since police intervention was an administrative issue, entirely separate from and independent of the judicial process. That administrative phase can not be said to come within the scope of Article 6.
The Court recalls that it has already held that Article 6 of the Convention is applicable to the tenants eviction proceedings (see the Immobiliare Saffi judgment cited above, §§ 62-63). As the Government have not submitted any new argument in support of their objections, the Court sees no reason to depart from its previous finding. This exception should therefore also be rejected.
On the merits, 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 during many years he had to pay a higher rent than that perceived from the recalcitrant tenant.
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 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