FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 67412/01
by Anna Maria RAGONE
against Italy
The European Court of Human Rights (First Section), sitting on 10 October 2002 as a Chamber composed of
MrC.L. Rozakis, President,
MrG. Bonello,
MrP. Lorenzen,
MrsN. Vajić,
MrsS. Botoucharova,
MrV. Zagrebelsky,
MrsE. Steiner, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application lodged on 15 February 2001,
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 1968 and living in Salerno. She is represented before the Court by Mr R. Fiorillo, a lawyer practising in Salerno.
The facts of the case, as submitted by the parties, may be summarised as follows.
M.G. was the owner of an apartment in Salerno, which he had let to U.A.
In a registered letter of 23 May 1988, the owner informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1991 and asked him to vacate the premises by that date.
In a writ served on the tenant on 10 December 1988, the owner reiterated his intention to terminate the lease and summoned the tenant to appear before the Salerno Magistrate.
By a decision of 3 February 1989, which was made enforceable on the same day, the Salerno Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 May 1993.
On 21 December 1990, the applicant became the owner of the apartment and pursued the enforcement proceedings.
On 17 April 1993, the applicant served notice on the tenant requiring him to vacate the premises.
On the same day, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.
On 21 May 1993, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 30 June 1993.
On 30 June 1993, the bailiff made one attempt to recover possession, which proved unsuccessful, as the applicant was not granted the assistance of the police in enforcing the order for possession.
Thereafter, the applicant decided to suspend the bailiff’s attempts in order to avoid any additional costs and because she would not be granted the assistance of the police.
In the meanwhile, the tenant died and on 11 October 1999, his wife asked the Salerno Magistrate to suspend the enforcement proceedings.
The Salerno Magistrate suspended the enforcement proceedings until 13 May 2000.
The tenant’s wife informed the applicant that she would not leave the premises.
On 11 October 2000, the applicant served notice on the tenant’s wife informing her that the order for possession would be enforced by a bailiff on 6 November 2000.
On 6 November 2000, the bailiff made one attempt to recover possession, which proved unsuccessful, but the tenant’s son informed the bailiff that he and his mother would leave the premises on 29 November 2000.
On 27 November 2000, the applicant recovered possession of the apartment
THE LAW
The applicant complains under Article 1 of Protocol No. 1 to the Convention that her inability to recover possession of her 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 her right of access to a court.
The Government argue that the applicant has not exhausted domestic remedies on the grounds that she failed to challenge the refusal of police assistance before the administrative courts.
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.
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