FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 61995/00
by Pierluigi MONTANARI
against Italy
The European Court of Human Rights (First Section), sitting on 27 June 2002 as a Chamber composed of
MrC.L. Rozakis, President,
MrsF. Tulkens,
MrP. Lorenzen,
MrsN. Vajić,
MrE. Levits,
MrA. Kovler,
MrV. Zagrebelsky, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application lodged on 3 October 2000,
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 1928 and living in Rome. He is represented before the Court by Mr T. Galiani, a lawyer practising in Rome.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of an apartment in Rome, which he had let to C.D.C.
In a writ served on the tenant on 7 January 1992, the applicant informed the tenant that he intended to terminate the lease on expiry of the term and summoned him to appear before the Rome Magistrate.
By a decision of 14 April 1992, which was made enforceable on 24 June 1992, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 June 1995.
On 25 July 1995, the applicant served notice on the tenant requiring him to vacate the premises.
On 4 September 1995 he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 5 October 1995.
On 13 October 1996, the applicant made a statutory declaration that he urgently required the premises as accommodation for his spouse.
Between 5 October 1995 and 21 July 2000, the bailiff made thirteen attempts to recover possession.
Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
On 20 October 2000 the tenant left the premises spontaneously and the applicant recovered possession of the apartment.
THE LAW
The applicant complains under Article 1 of Protocol No. 1 to the Convention that his inability to recover possession of his apartment amounted to a violation of the right to property.
The applicant further complains under Article 6 of the Convention about the duration of the eviction proceedings and about the denial of his right of access to a court.
The Government submitted that the applicant has not exhausted domestic remedies, firstly because he had failed to bring proceedings in the administrative courts challenging the refusal to provide police assistance and, secondly, because he had never challenged the justification of the adjournments ordered by the bailiff by lodging an application under Article 617 of the Code of Civil Procedure (“CCP”) which deals with objections to enforceable acts.
With regard to the first objection of non-exhaustion, the applicant argues that there was no domestic remedy and maintains that the Prefect never issued a decision in refusing to grant police assistance.
The Court recalls that it has already dismissed this objection in the Immobiliare Saffi case (see the judgment Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 40-42, ECHR 1999-V). The Court sees no reason to depart from its previous finding. This objection should therefore be rejected.
With regard to the second objection of non-exhaustion, the applicant maintains that the adjournments ordered by the bailiff were not due to procedural flaws but to the fact that he could not evict the tenant without police assistance. Such proceedings would therefore have been entirely ineffective. It would not therefore have been helpful to object to the adjournments under Article 617 of the CCP.
The Court notes that although the applicant could have applied to the judge responsible for enforcement proceedings challenging the adjournments by the bailiff if they had been unlawful, in the instant case the bailiff had not acted unlawfully but could not enforce the eviction order without police assistance. Accordingly, since an objection cannot be lodged against a decision not to provide police assistance, it cannot be deemed to be an effective remedy. Furthermore, the Government have not cited any decisions of the Italian courts showing otherwise. The Government’s objection must therefore be dismissed.
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. In their opinion, the interference with the applicant’s property rights was not disproportionate; therefore, there is no violation of Article 1 of Protocol No. 1.
As to the length of the enforcement proceedings, the Government submit that the delay in granting police assistance is justified on grounds of the order of priorities established according to public-safety requirements. 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