SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 30969/96
by IMMOBILIARE LIBECCIO
against Italy
The European Court of Human Rights (Second Section) sitting on 9 November 1999 as a Chamber composed of
MrC. Rozakis, President,
MrB. Conforti,
MrP. Lorenzen,
MrsM. Tsatsa-Nikolovska,
MrA.B. Baka,
MrE. Levits,
MrA. Kovler, judges,
andMrE. Fribergh, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 February 1996 by Immobiliare Libeccio against Italy and registered on 27 February 1996 under file no. 30969/96;
Having regard to the reports provided for in Rule 49 of the Rules of Court;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a company based in Milan. It is represented before the Court by Vito De Honestis, a lawyer practising in Milan.
The facts of the case, as submitted by the applicant company, may be summarised as follows.
A.Particular circumstances of the case
The applicant is the owner of an apartment in Milan, which it had let to a company, M.D. Ltd.
In a writ served on the tenant on 12 November 1994, the applicant company summoned the tenant to appear before the Milan Magistrate with a view to recovering possession of its apartment on the ground of rent arrears.
At the hearing of 28 November 1994, Ms. J.B. appeared before the Magistrate and declared that she was the user of the apartment and the de facto tenant. She thus opposed the termination of the contract and requested a delay in order to pay up the arrears. The Magistrate granted her a delay of 90 days.
Ms. J.B. having failed to fulfil this obligation, by a decision of 31 March 1995, which was made enforceable on the same day, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 30 June 1995.
On 14 June 1995 the applicant company served notice on the tenant requiring her to vacate the premises.
On 11 July 1995 the applicant company served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 28 July 1995.
Police assistance was granted twice, and twice revoked on the grounds of the tenant's low income and her committal to find alternative premises, and this despite the complaints which the applicant company addressed to the competent committee of tenants and landlords set up by Law no. 899, on 24 November 1995 and 19 January 1996. The bailiff's attempts to recover possession, on 27 July 1995, 23 October 1995 and 19 January 1996 were unsuccessful.
The eviction was enforced by the bailiff on 18 April 1996 with the assistance of the police.
B.Relevant domestic law
The relevant domestic law is described in the Immobiliare Saffi v. Italy judgment of 28 July 1999, to be published in the Court's official reports, §§ 18-35.
COMPLAINTS
1.The applicant company complains under Article 1 of Protocol No. 1 about its prolonged inability - through lack of police assistance - to recover possession of its apartment.
2.The applicant company further complains under Article 6 § 1 of the Convention about the duration of the eviction proceedings.
THE LAW
1.The applicant company complains that its impossibility of recovering possession of its apartment infringed its rights under Article 1 of Protocol no. 1 to the Convention, according to which:
“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 company underlines that the tenant owed significant arrears of rent, and that the statutory provisions on the staggering of police assistance were not applicable in this case.
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 judgment, cited above, §§ 46 and 48, and the Spadea and Scalabrino v. Italy judgment of 28 September 1995, Series A no 315-C, p. 26, §§ 28 and 31-32).
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 observes that the staggering of police assistance was indeed applicable in the present case, and that the applicant company was entitled to priority in the grant of police assistance, the eviction being on the ground of rent arrears.
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, the tenant was treated in such a way that a balance was maintained between the relevant interests (see the Spadea and Scalabrino v. Italy judgment cited above, § 38).
The Court observes that the tenant had low income, on which ground the grant of police assistance to the applicant company was suspended twice.
The Court further notes that, under the applicable provisions, the applicant - a company - was entitled to be granted police assistance with priority, but not immediately. The date originally set for the eviction was 28 July 1995 and the actual eviction took place on 18 April 1996. The applicant company thus had to wait less than nine months.
It is true that the applicant company was owed rent arrears. The Court notes however that it was open to it to seek to recover these sums through civil proceedings.
The Court does not find that the restriction on the applicant company's use of its flat imposed on it an individual and excessive burden, contrary to the requirements of the second paragraph of Article 1 of Protocol No. 1 (see the Spadea and Scalabrino v; Italy judgment, cited above, § 40).
In these circumstances, the Court concludes that this complaint is manifestly ill-founded within the meaning of Article 35 §§ 3 and must be rejected pursuant to Article 35 § 4 of the Convention.
2.The applicant company 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 the eviction was only delayed for approximately nine months. Having in mind the public order problems which Italy admittedly has had to face in the field of housing and in the light of the necessity of protecting the tenant's interests, the Court does not consider that this delay was so long as to deprive the order for possession issued by the Milan Magistrate on 31 March 1995 of all useful effect or of undermining its substance (see, a contrario, the Immobiliare Saffi judgment cited above, § 73).
Further, the Court considers, bearing in mind the practical difficulties raised by the enforcement of a very large number of evictions as well as of the need to protect the tenant's interests, 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 inadmissible as being 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