SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 30530/96
by Luciano ROSSI
against Italy
The European Court of Human Rights (Second Section), sitting on 25 May 2000 as a Chamber composed of
MrC.L. Rozakis, President,
MrA.B. Baka,
MrB. Conforti,
MrP. Lorenzen,
MrsM. Tsatsa-Nikolovska,
MrE. Levits,
MrA. Kovler, judges,
andMrE. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 27 October 1995 and registered on 20 March 1996.
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
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 1947 and living in Florence.
A.The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of an apartment in Florence, which he had let to A.R.
In a registered letter of 4 November 1985, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 30 June 1987 and asked her to vacate the premises by that date.
In a writ served on the tenant on 13 January 1987, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.
By a decision of 19 January 1987, which was made enforceable on 4 February 1987, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 June 1988.
On 18 March 1989, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself.
On 21 June 1989, the applicant served notice on the tenant requiring her to vacate the premises.
On 7 August 1989 he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 28 August 1989.
Between 18 September 1989 and 4 July 1996 the bailiff made 15 attempts to recover possession, on 18 September 1989, 8 February 1990, 12 October 1990, 15 February 1991, 15 May 1991, 25 October 1991, 3 August 1992, 14 January 1993, 20 September 1993, 27 May 1994, 11 January 1995, 31 May 1995, 20 September 1995, 21 November 1995 and 4 July 1996.
Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
On 18 September 1996, the applicant recovered possession of his apartment.
B.Relevant domestic law
The relevant domestic law is described in the judgment Immobiliare Saffi v. Italy [GC], no. 22774/93, 28.7.99, §§ 18-35.
COMPLAINTS
The applicant complains about his prolonged inability -through lack of police assistance - to recover possession of his apartment.
The applicant further complains about the duration of the eviction proceedings.
THE LAW
The applicant complains that his inability to recover possession of his apartment amounted to a violation of his right of property, as embodied in Article 1 of Protocol No. 1, which provides:
“Every natural or 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.”
The applicant further complains about the duration of the eviction proceedings. Article 6 of the Convention, insofar as relevant, provides as follows:
“In the determination of his civil rights and obligations …, everyone is entitled to a … hearing within a reasonable time by [a] … tribunal ...”
The Government argue that the applicant has not exhausted domestic remedies. They submit that he has failed to issue proceedings in the administrative courts challenging the refusal of police assistance and to raise, in the same proceedings, the constitutionality of the legislative provisions concerned.
The Court recalls that it has already dismissed this objection in the Immobiliare Saffi case (see the Immobiliare Saffi judgment cited above, §§ 40-42). As the Government have not submitted any new argument in support of their objection, the Court sees no reason to depart from its previous finding. This exception should therefore be rejected.
The Government further argue that the arrangements for staggering the police assistance were not part of the judicial process for enforcement of orders for possession, since police intervention was an administrative issue, entirely separate from and independent of the judicial process. That administrative phase can not be said to come within the scope of Article 6.
The Court recalls that it has already held that Article 6 of the Convention is applicable to the tenants eviction proceedings (see the Immobiliare Saffi judgment cited above, §§ 62-63). As the Government have not submitted any new argument in support of their objections, the Court sees no reason to depart from its previous finding. This exception should therefore also be rejected.
On the merits, 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.
The applicant argues that in the Italian legal system tenants are overprotected. Despite the fact that he had made a statutory declaration that he urgently required the premises as accommodation for himself, he could repossess the apartment only after eight years after the date set by the magistrate.
As to the length of the enforcement proceedings, the Government maintain that the delay in providing the assistance of the police is justified by the protection of the public interest. 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 applicant argues that the refusal of the administration to enforce the order issued by the magistrate has interfered with the power of the judiciary.
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