AS TO THE ADMISSIBILITY OF
Application No. 24236/94
by N., C., F. and A. G.
against Italy
The European Commission of Human Rights sitting in private on
4 December 1995, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
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 9 November 1993
by N., C., F. and A. G. against Italy and registered on 31 May 1994
under file No. 24236/94;
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 applicants are Italian nationals born in 1959, 1961, 1965 and
1967 respectively and residing in Rome; they act through their father
by virtue of a proxy of 1989.
Before the Commission, the applicants are represented by Mr.
Alfredo Barbieri, a lawyer practising in Rome.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
a) Particular circumstances of the case
By a contract dated 16 October 1989, the applicants purchased a
villa in Rome, which had been previously let to Albania and was now the
seat of the Albanian Mission in Italy.
The proceedings before the Rome magistrate
In a writ served on 22 February 1990, the applicants gave the
Albanian Embassy notice to quit and summoned it to appear before the
Rome magistrate in order to terminate the tenancy. The Embassy opposed
the eviction on the ground of its immunity from Italian jurisdiction.
By decision ("ordinanza di rilascio") of 17 July 1990, filed with
the Registry on 18 July 1990, the Rome magistrate provisionally
confirmed the eviction with effect from 31 January 1991, and set the
date of eviction at 30 September 1991. He held in particular that the
Albanian Embassy was to be considered as acting in its capacity of
private individual and therefore was subject to the Italian
jurisdiction.
The proceedings had to be pursued, within ninety days of the date
of the provisional decision, before the Rome court in order to have the
eviction confirmed and the damages suffered by the applicants as a
consequence of the delayed release of the villa assessed.
The Rome magistrate's decision became enforceable on 30 August
1990 and was served on the tenant on 12 September 1990.
The proceedings before the Rome court
By a writ issued on 5 October 1990 and served on 12 October 1990,
the applicants summoned the Albanian Embassy to appear before the Rome
court in order to have the eviction confirmed.
By another writ served on 4 March 1991, the applicants summoned
the Albanian Embassy to appear before the Rome court in order to have
the damages suffered as a result of the delayed release of the villa
assessed. An expert opinion was issued on the current market value of
the applicants' property and filed with the Registry on 1 June 1992.
The two sets of proceedings were joined on 24 March 1993.
By judgment of 10 November 1993, filed with the Registry on
26 November 1993, the Rome court confirmed the Rome magistrate's
decision of 17 July 1990, and awarded the applicants damages of some
1.500.000.000 Italian liras and costs. The judgment became final on
7 April 1994.
The execution proceedings
On 9 December 1991 and 24 February 1992 respectively, the
applicants served on the tenant the notice to vacate the premises and
the warning that, if it did not leave of its own accord, on 6 March
1992 the bailiff would enforce the order for possession. Nevertheless,
the bailiff refused to evict the Albanian Embassy.
On 11 May 1992 and 8 June 1992 respectively, the applicants
served on the tenant a second order to vacate the premises and the
warning that on 29 July 1992 the bailiff would enforce the eviction.
However, in June 1992 the bailiff informed the applicants' counsel that
he would not proceed to the eviction, on the ground of the immunity of
the Albanian Embassy from Italian jurisdiction and of the inviolability
of its premises.
On 17 June 1992, the applicants applied to the Rome magistrate,
requesting that the latter confirm that the bailiff ought to have
proceeded to the eviction and, in pursuance of Article 32 of the Vienna
Convention on diplomatic relations, ought to have entered the Embassy
and asked the Ambassador whether he intended to give up his immunity,
in which case the bailiff should have enforced the eviction order.
The hearing before the Magistrate, originally fixed to
28 September 1992, was first postponed to 13 January 1993 and finally
took place on 24 February 1993. At a further hearing on 7 April 1993,
the magistrate reserved his decision.
Meanwhile, on 6 October 1992, the applicants applied to the
Italian Ministry of Foreign Affairs. They claimed that Article 21 of
the Vienna Convention puts the Italian authorities under an obligation
to find a suitable alternative residence for the (evicted) Embassy and,
for these purposes, they pointed out that already in 1991 they had
indicated another suitable house in Rome, and that in any event another
suitable house was available in the same street. They never obtained
any reply.
By a decision of 20 July 1993, the magistrate dismissed the
applicants' application; he held that the eviction could not be
enforced in practice, in that enforcement proceedings commence with the
bailiff entering the premises, whereas in the present case this was not
feasible on the ground of the inviolability of the premises of a
diplomatic mission.
To date, the Albanian Embassy has not vacated the applicants'
property.
b) Relevant law
Article 21 of the Vienna Convention on diplomatic relations of 1961:
"1. The receiving State shall either facilitate the acquisition
on its territory, in accordance with its laws, by the sending
State of premises necessary for its mission, or assist the latter
in obtaining accommodation in some other way."
Article 22:
"1. The premises of the mission shall be inviolable. The agents
of the receiving State may not enter them, except with the
consent of the head of the mission.
2. The receiving State is under a special duty to take all
appropriate steps to protect the premises of the mission against
any intrusion or damage and to prevent any disturbance of the
peace of the mission or impairment of its dignity.
3. The premises of the mission, their furnishing and other
property thereon and the means of transport of the mission shall
be immune from search, requisition, attachment or execution."
Article 32:
"1. The immunity from jurisdiction of diplomatic agents (...)
may be waived by the sending State.
2. Waiver must always be express. (...)"
COMPLAINTS
The applicants complain under Article 6 para. 1 of the Convention
about the excessive length of the eviction proceedings.
They do not dispute that, in pursuance of the principle of
inviolability of the premises of the diplomatic missions, the order for
possession they obtained against Albania cannot be enforced, but allege
that the Italian authorities have failed to provide the Albanian
Embassy with a suitable alternative residence, in breach of Article 21
of the Vienna Convention on diplomatic relations.
THE LAW
The applicants complain under Article 6 para. 1 (Art. 6-1) about
the length of the proceedings concerning the eviction.
Although they acknowledge the principle of the inviolability of
the premises of diplomatic missions, and therefore accept that the
order for possession they obtained against the Albanian Embassy cannot
be enforced, they argue that the excessive length of the proceedings
is due to the failure of the Italian authorities to find for the
Embassy a suitable alternative accommodation instead of their property,
and that this is in breach of Article 21 of the Vienna Convention on
diplomatic relations.
The Commission first observes that Article 21 of the said
Convention clearly refers to relations between States and does not
confer any rights on the individuals to have such action taken. Nor can
such right be derived from any Italian legal provision.
In any case, the Commission considers that it is not competent
to examine whether this application discloses any appearance of a
violation of the European Convention on Human Rights or its Protocols.
In respect of disputes concerning the seats of diplomatic
missions, the Commission notes that international customary law accords
sending States immunity not only from execution, but also from
jurisdiction in the receiving State.
It further recalls that, according to the case-law of the
Convention organs, the right to access to court does not require that
courts shall have unlimited jurisdiction; in particular, Article 6
(Art. 6) of the Convention should be interpreted with due regard to
parliamentary and diplomatic immunities as traditionally recognised:
in such cases, the defendant is inaccessible and it is for the domestic
court to apply the corresponding limitation of its jurisdiction (cf.
No. 4451/70, Commission report of 1.6.73, p. 44 paras. 93 ss.; No.
3374/67, dec. 6.2.69, Collection of Decisions 29, p. 29).
Accordingly, the Commission considers that the particular
circumstances of the case would have justified a limitation of the
applicants' right of access to court.
It is true that in the present case the domestic courts did not
deny their jurisdiction and ruled on the merits of the applicants'
claims. Yet, since the applicants were not entitled under Article 6
(Art. 6) of the Convention to have access to court in the present case,
the Commission considers that they cannot invoke this provision to
complain about the length of the proceedings which actually took place,
Article 6 para. 1 (Art. 6-1) of the Convention not being applicable to
those proceedings.
It follows that the present application is incompatible ratione
materiae with the provisions of the Convention in accordance with
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.K. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy