SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 28272/95
by Lidia GHIDOTTI
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 1 June 1995 and registered on 21 August 1995,
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 1926 and living in Milan.
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 Milan, which she had let to C.F.
In a registered letter of 13 June 1989, the applicant informed the tenant that she intended to terminate the lease expiring on 31 December 1989 and asked her to vacate the premises by that date.
In a writ served on the tenant on 23 November 1989, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.
By a decision of 28 November 1989, which was made enforceable on 1 December 1989, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1990.
On 18 February 1991, the applicant served notice on the tenant requiring her to vacate the premises.
On 19 March 1991, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 12 April 1991.
On 2 May 1991, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.
Between 12 April 1991 and 27 April 1995 the bailiff made 20 attempts to recover possession, on 12 April 1991, 11 June 1991, 9 July 1991, 24 September 1991, 29 October 1991, 26 November 1991, 21 January 1992, 25 February 1992, 24 March 1992, 28 April 1992, 30 June 1992, 22 eptember 1992, 24 November 1992, 26 January 1993, 30 March 1993, 8 June 1993, 21 September 1993, 30 November 1993, 15 February 1995 and 27 April 1995.
Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
On 17 May 1996, 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.
COMPLAINT
The applicant complains under Article 1 of Protocol No. 1 about her prolonged inability - through lack of police assistance - to recover possession of her apartment.
THE LAW
The applicant complains that her inability to recover possession of her apartment amounted to a violation of her 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 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 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.
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 the prolonged impossibility to repossess her apartment constitutes a violation of her right of property since the rent she perceived was inferior to expenses and taxes paid for the apartment.
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