AS TO THE ADMISSIBILITY OF
Application No. 22774/93
by IMMOBILIARE SAFFI
against Italy
The European Commission of Human Rights sitting in private on
6 March 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 September 1993
by IMMOBILIARE SAFFI against Italy and registered on 15 October 1993
under file No. 22774/93 ;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Italian building society, having its
registered office in Livorno and acting through its managing director,
Mr. Rodolfo Cagliata.
Before the Commission, it is represented by Mr. Nino Amadei, a
lawyer practising in Livorno.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Company I.B., a building society, was the owner of an apartment
in Livorno, which it had let to L.B.
By registered letter of 20 april 1983, company I.B. informed the
tenant of its intention to terminate the lease on its expiry, on 31
December 1983.
In November 1983, company I.B. served on the tenant a notice to
quit ("disdetta"); the tenant refused to vacate the premises.
In a writ served on the tenant in November 1983, company I.B.
reiterated the notice to quit and summoned the tenant to appear before
the Livorno magistrate (Pretore); by judgment of 21 November 1983, the
latter formally confirmed the notice to quit and set the date of
eviction at 30 September 1984.
The decision was made enforceable on 7 December 1983.
On 30 May 1985, company I.B. served on the tenant the order
("precetto") to vacate the flat.
On 26 September 1985, it served on the tenant the warning
("significazione di sfratto") that on 19 November 1985 a bailiff would
enforce the eviction.
Several attempts made by the bailiff on 19 November 1985,
28 March 1986, 30 September 1986, 17 December 1986, 4 April 1987 and
21 December 1987 were unsuccessful.
Following a corporate merger with, inter alia, company I.B., in
1988 the applicant company became the owner of the apartment at issue.
It continued the enforcement proceedings in its capacity as owner.
Thereafter, numerous attempts (15 December 1988, 9 June 1989,
30 October 1989, 30 October 1990, 17 February 1991, 17 May 1991, 18 May
1992, 15 May 1993, 8 February 1994) by a bailiff to evict the tenant
were unsuccessful, as the applicant company was never granted the
assistance of the police in enforcing the order for possession,
pursuant to the subsequent laws on suspension of enforcement of
evictions.
So far, the applicant company has not succeeded in evicting the
tenant from its apartment.
b) Relevant domestic law and practice
Since 1947 the public authorities in Italy have frequently
intervened in residential tenancy legislation with the aim of
controlling rents. This has been achieved by rent freezes
(occasionally relaxed when the Government decreed statutory increases),
by the statutory extension of all current leases and by the
postponement, suspension or staggering of evictions.
I. As regards the statutory extension of tenancies
The last statutory extension of all current leases, with the
exception of certain cases specifically prescribed by law, was
introduced by Law No. 392 of 27 July 1978 and remained in force until
31 December 1982, 30 June 1983 or 31 December 1983 depending on the
dates on which the leases were signed.
It should, however, be noted that, as regards buildings used for
purposes other than housing, the statutory extension of current leases
prescribed by Article 1 para. 9 of Law No. 118 of 5 April 1985 was
declared unconstitutional in a decision (No. 108) handed down by the
Constitutional Court on 23 April 1986. In its decision the court held
that the statutory restrictions imposed on property rights under
Article 42 of the Constitution, with a view to ensuring social justice,
made it possible to regard controls imposing restrictions as
legitimate, provided that such controls are of an "exceptional and
temporary nature" but that the "act of perpetuating such restrictions"
was incompatible with the protection of property rights embodied in
Article 42 of the Constitution.
In its decision, the Constitutional Court also pointed out that
the statutory six-month extension of leases on buildings used for
purposes other than housing, prescribed by Law No. 118, should not be
considered in isolation but within the context of the entire system of
tenancy regulations. The court drew particular attention to the fact
that this extension succeeded other statutory extensions and could mark
the beginning of new restrictions on freedom of contract in this field.
Moreover, the statutory extension of leases had the effect of
prolonging contracts in which the rent, notwithstanding the increases
allowed in accordance with rises in the cost of living, "was far
removed from the current socio-economic conditions". Further, the law
concerned did not give the lessor the possibility to regain possession
of the property except in cases of absolute necessity.
The Constitutional Court also held that Law No. 118, inasmuch as
it provided for a blanket extension of current leases without taking
into consideration the particular economic circumstances of lessors and
lessees - as would have been necessary to ensure social justice -,
infringed the principle of the equality of citizens before the law
embodied in Article 3 of the Constitution.
II. As regards enforcement
Numerous provisions have established rules for the postponement,
suspension or staggering of judicial decisions ordering tenants to
vacate the premises they occupy (ordinanze di sfratto).
A first suspension was introduced by Legislative Decree No. 795
of 1 December 1984. The provisions set forth therein were incorporated
in Legislative Decree No. 12 of 7 February 1985, which became
Law No. 118 of 5 April 1985, covering the period from 1 December 1984
to 30 June 1985. This legislation also provided for the staggered
postponement of enforced evictions to 1 July 1985, 30 September 1985,
30 November 1985 or 31 January 1986 respectively, depending on the date
on which the judgment recording the end of the lease had become
enforceable.
Section 1(3) of Law no. 118 stipulated that such suspensions were
not applicable if repossession of the premises had been ordered because
arrears of rent were owed. Similarly, no suspension could be ordered
in the following cases:
(i) where, after conclusion of the contract, the lessor
required the property for his own use or for that of his
spouse or his children or grandchildren, for residential,
commercial or professional purposes, or where a lessor who
intended to use the premises for one of the above-mentioned
purposes (a) offered the tenant similar accommodation at a
rent which he could afford and which was not more than 20%
higher than the previous rent and (b) undertook to pay the
costs of the tenant's removal (Article 59, first
subsection, paragraphs 1, 2, 7 and 8 of Law no. 392 of 27
July 1978 ("Law no. 392") and
(ii) where, inter alia, a lessor urgently needed to regain
possession of his flat as accommodation for himself, his
children or his ascendants (Article 3, first paragraph sub-
paragraphs 1, 2, 4 and 5 of Legislative Decree No. 629 of
15 December 1979, which became Law No. 25 of 15 February
1980 ("Law no. 25")).
A second suspension was introduced by Legislative Decree No. 708
of 29 October 1986, which became Law No. 899 of 23 December 1986. It
covered the period from 29 October 1986 to 31 March 1987 and provided
for the same exceptions as the provisions in the preceding legislation.
Law no. 899 of 23 December 1986 also established that the Prefect
was competent to determine the criteria for authorising police
assistance in evicting recalcitrant tenants, after consulting a
committee including representatives of both tenants and landlords.
Section 3 (5 bis) of Law no. 899 of 23 December 1986 also
provided for the automatic suspension until 31 December 1987 of
forcible evictions of tenants entitled to subsidised housing.
A third suspension was introduced by Legislative Decree No. 26
of 8 February 1988, which became Law No. 108 of 8 April 1988. It first
covered the period from 8 February to 30 September 1988 and was
subsequently extended from the latter date to 31 December 1988.
A fourth suspension was introduced by Legislative Decree No. 551
of 30 December 1988, which became Law No. 61 of 21 February 1989, and
covered the period up to 30 April 1989. In regions suffering from
natural disasters the suspension remained in force until
31 December 1989.
With the exception of urgent cases, this Law also provided that
police assistance in enforcing evictions should only be authorised in
gradual stages over a period of forty-eight months as of 1 January 1990
and set up a prefectural committee responsible for deciding which cases
most urgently required police intervention. Among these urgent cases
there were those when the lessor urgently needed to regain possession
of his flat as accommodation for himself, his spouse, his children or
his ascendants. For his case to be dealt with in priority, the lessor
had to make a solemn declaration.
The system of staggered resumption of forcible evictions has been
extended by a series of law-decrees: law-decree no. 723 of 20 December
1994 extended the date of resumption to 31 December 1995 ; law-decree
of 23 December 1995 extended this date to 29 February 1996 ; law-
decrees no. 81/1996 and 335/1996 have extended that date to 20 June and
31 December 1996 respectively.
COMPLAINTS
1. The applicant company alleges that the fact that for a prolonged
period it has been impossible for it to recover possession of its flat,
owing to the implementation of emergency legislative provisions on
residential property leases, has infringed its right to the peaceful
enjoyment of its possessions guaranteed by Article 1 of Protocol no. 1.
2. Relying on Article 6 para. 1 of the Convention, the applicant
company alleges that its case has not been heard within a reasonable
time on account of the implementation of legislative provisions
suspending the enforcement of evictions.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 November 1989 and registered
on 19 December 1989.
On 11 January 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on 21 March
1995, after an extension of the time-limit fixed for that purpose. The
applicant replied on 19 April 1995.
On 13 March 1996, the parties were requested to submit their
additional observations following the judgments of the European Court
of Human Rights in the Spadea and Scalabrino v. Italy and Scollo
v.Italy cases, delivered on 28 September 1995. The applicant and the
respondent Government submitted their observations on 29 March and on
4 April 1996 respectively.
THE LAW
1. The applicant company complains about the prolonged impossibility
for it to recover possession of its apartment, owing to the
implementation of emergency legislative provisions on residential
property leases.
It alleges a violation of Article 1 of Protocol no. 1 (P1-1) to
the Convention, which provides as follows:
"Every natural and 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."
a) As to the exhaustion of domestic remedies
The Government first submit that the applicant company has not
exhausted the domestic remedies open to it under Italian law in that
it failed to appeal to the regional administrative court and then to
the Supreme Administrative Court (Consiglio di Stato) against the
refusal by the Prefect to grant it priority in the assistance of the
police. In the course of these proceedings, the applicant company could
have raised the question of the constitutionality of the disputed
measures by referring to Article 42 of the Italian Constitution which
recognises and safeguards property rights.
The applicant company contends the Government's objections. It
first argues that in its case there has been no formal refusal to grant
the assistance of the police, so that there is no decision against
which it could be possible to apply to courts, either administrative
or ordinary. As to the possibility of raising a question of
constitutionality, the applicant company claims that this remedy would
not be effective, given the attitude of the Constitutional Court which
seems to accept the Government's conduct in the field of property
rights.
As regards the first part of the Government's objections, the
Commission recalls the Convention organs' constant case-law to the
effect that the obligation to exhaust domestic remedies requires only
that an applicant make normal use of remedies that relate to the
breaches alleged and at the same time are available and sufficient. The
existence of such remedies must be sufficiently certain not only in
theory but also in practice, failing which they lack the requisite
accessibility and effectiveness. It falls to the respondent State to
establish that these various conditions are satisfied (see Eur. Court
HR, De Jong, Baljet and Van den Brink v. the Netherlands judgment of
22 May 1984, Series A no. 77, p. 19, para. 39; amongst others, nos.
14807/89, dec. 12.2.92, D.R. 72, p. 148; 12742/87, dec. 3.5.89, D.R.
61, p. 206 and 14992/89, dec. 7.6.90, D.R. 66, p. 247).
In the present case, the Commission first underlines that the
Prefect enjoys a very wide margin of appreciation in granting the
assistance of the police in evicting recalcitrant tenants. The
Commission therefore doubts that administrative courts would overrule
the Prefect's decisions in this respect. The Commission further notes
that the respondent Government were unable to cite any precedent:
accordingly, they have not shown that this remedy could constitute an
available and sufficient remedy that the applicant ought to have
exhausted.
As regards the second part of the Government's objections, the
Commission recalls that when an individual, as under Italian law, is
not entitled to apply directly to the Constitutional Court for a review
of the constitutionality of certain legislation, he does not have
available to him in this respect a remedy whose exhaustion is required
under Article 26 (Art. 26) of the Convention (see Eur. Court HR,
Brozicek v. Italy judgment of 19 December 1989, Series A no. 167, p.
16, par. 34; Padovani v. Italy judgment of 26 February 1993, Series A
no. 257-B, p. 19, par. 20).
It follows that the Government's objections as to the exhaustion
of domestic remedies must be rejected.
b) As to the merits
As regards the substance of the case, the Government consider
that the disputed situation should be examined under Article 1 of
Protocol no. 1 (P1-1) which provides that "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...".
The Government point out that the disputed measures were adopted
to deal with an exceptional situation due on the one hand to a shortage
of reasonably priced housing in certain municipalities and on the other
hand to a large increase in demand resulting from the expiry of the
statutory extension of current leases on 31 December 1982, 30 June 1983
or 31 December 1983, depending on the dates on which the contracts of
lease were signed. In the Government's opinion the measures taken were
justified from the social point of view and in order to safeguard
public order and were therefore compatible with the general interest.
The applicant company disputes the Government's arguments. It
points out that the exceptional situation referred to by the Italian
Government, and which entails restrictions on property rights, cannot
be considered as exceptional, as it keeps being extended.
The Commission considers that the question of whether the
applicant company's failure to recover possession of its flat
constituted a breach of the rights secured to it by Article 1 of
Protocol no. 1 (P1-1) raises questions of fact and law of such
complexity that their determination should depend on an examination on
the merits.
It follows that this complaint cannot be dismissed as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other grounds for declaring it inadmissible have been
established.
2. The applicant company further complains about the length of the
enforcement proceedings. It relies on Article 6 para. 1
(Art. 6-1) of the Convention which provides:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair and public hearing within a
reasonable time ...".
The Government claim that no delay in the procedure is
attributable to the judicial authorities, as the length of the
procedure only depends on the Prefect. There would thus be no violation
of the invoked provision.
The applicant company contends that a length of over twelve years
cannot be regarded as "reasonable" within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention.
The Commission has considered the submissions of the parties. It
finds that this complaint raises questions of fact and law of such
complexity that their determination should depend on an examination on
the merits. It follows that it cannot be dismissed as manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other grounds for declaring it inadmissible have been
established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy