FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 55725/00
by Elio ROSATI
against Italy
The European Court of Human Rights (First Section), sitting on 9 July 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 13 August 1999,
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 1933 and living in S. Donà di Piave (Venice).
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant and his sister are the owners of an apartment in Cava De’ Tirreni (Salerno), which they had let to A.A.
In a writ served on the tenant on 27 June 1991, the applicant informed the tenant of his intention to terminate the lease on expiry of the term on 12 March 1993 and summoned the tenant to appear before the Cava De’ Tirreni Magistrate (Salerno).
By a decision of 16 September 1991, which was made enforceable on 5 November 1991, the Cava De’ Tirreni Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 12 March 1994.
On 9 April 1994, the applicant served notice on the tenant requiring her to vacate the premises.
On 23 April 1994, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 16 May 1994.
On 16 May 1994, the bailiff made one attempt to recover possession, which proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order of possession.
The tenant asked the Cava De’ Tirreni Magistrate to suspend the eviction proceedings.
On 28 July 1997, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself.
Pursuant to Law no. 431/98, the enforcement proceedings were suspended until 26 December 2000.
On 28 February 2001, 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 Court has also examined this complaint under Article 6 § 1 of the Convention.
The applicant argues that the delay in the enforcement of the order issued by the Cava De’ Tirreni Magistrate resulted in a denial of his right of access to a court.
The Government argue that the applicant has not exhausted domestic remedies on the grounds that he 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