SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 32006/96
by Giovanna GNECCHI and Mario BARIGAZZI
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, judges,[Note1]
andMrE. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 1 April 1996 and registered on 24 June 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 applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants are Italian nationals, born respectively in 1930 and 1925, living in Milan.
They are represented before the Court by Mrs Mariantonia Gnecchi Boscarolli, a lawyer practising in Bolzano.
A.The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are the owners of an apartment in Milan, which they had let to G.M. and R.C.
In a registered letter of 23 January 1982, the applicants informed the tenants that they intended to terminate the lease and asked them to vacate the premises by 27 July 1982.
In a writ served on the tenants on an unspecified date, the applicants reiterated their intention to terminate the lease and summoned the tenants to appear before the Milan Magistrate.
By a decision of 4 November 1982, which was made enforceable on 15 December 1982, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1983.
By a decision of 28 June 1985, the Milan Magistrate postponed the said deadline to 18 December 1985.
On 13 December 1985, the applicants served notice on the tenants requiring them to vacate the premises.
On 11 February 1986, they served notice on the tenants informing them that the order for possession would be enforced by a bailiff on 25 February 1986.
Between 25 February 1986 and 24 October 1986, the bailiff made 6 attempts to recover possession, on 25 February 1986, 9 April 1986, 11 June 1986, 28 June 1986, 24 October 1986 and 24 October 1986.
On 14 April 1987, the applicants made a statutory declaration that they urgently required the premises as accommodation for their daughter.
Between 28 April 1987 and 12 November 1998, the bailiff made 50 attempts to recover possession, on 28 April 1987, 30 June 1987, 31 July 1987, 16 September 1987, 10 November 1987, 21 December 1987, 17 February 1988, 22 May 1989, 28 July 1989, 4 November 1989, 18 December 1989, 7 February 1990, 23 March 1990, 16 May 1990, 17 July 1990, 12 October 1990, 21 January 1991, 11 April 1991 14 May 1991, 24 July 1991, 23 October 1991, 17 January 1992, 15 April 1992, 6 July 1992, 23 October 1992, 4 November 1992, 27 January 1993, 20 April 1993, 15 July 1993, 19 October 1993, 13 January 1994, 21 April 1994, 11 July 1994, 10 October 1994, 16 December 1994, 14 March 1995, 14 June 1995, 12 October 1995, 25 January 1996, 19 April 1996, 9 July 1996, 25 October 1996, 28 January 1997, 29 April 1997, 28 July 1997, 21 October 1997, 20 January 1998, 31 March 1998, 11 June 1998 and 12 November 1998.
Each attempt proved unsuccessful, as the applicants were never granted the assistance of the police in enforcing the order for possession.
At the end of January 1999, the tenants 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 applicants complain about their prolonged inability - through lack of police assistance - to recover possession of their apartment.
2.The applicants further complain about the duration of the eviction proceedings.
THE LAW
The applicants complain that their inability to recover possession of their 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 applicants further complain 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 applicants argue that the impossibility to repossess their apartment during more than thirteen years from the first attempt of the bailiff to enforce the order for possession amounts to a violation of their right under Article 1 of Protocol No. 1. They stress that they could repossess their apartment only because the tenants spontaneously vacated it.
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 applicants argue that the delay in the enforcement of the order issued by the Milan Magistrate violates their 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
[Note1]Judges names are to be followed by a COMMA and a MANUAL LINE BREAK (Shift+Enter). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)
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