FIRST SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 40465/98
by Anna Maria SORRENTINO PROTA
against Italy
The European Court of Human Rights (First Section), sitting on 18 April 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 with the European Commission of Human Rights on 20 August 1997,
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 partial decision of 11 October 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 1953 and living in Positano (Salerno). She is represented before the Court by Mr F. Manzo, a lawyer practising in Torre Annunziata (Naples).
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of a building of 16 apartments in Castellammare di Stabia (Naples), 5 of which were let to 5 different tenants.
1. The proceedings against I.A.
In a registered letter of 24 May 1991, the applicant informed the tenant that she 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 14 May 1992, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Naples Magistrate.
By a decision of 20 May 1992, which was made enforceable on 27 May 1992, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 20 May 1993.
On 11 September 1995, the applicant served notice on the tenant requiring him to vacate the premises.
On 23 October 1995, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 4 November 1995.
Between 4 November 1995 and 3 December 1998, the bailiff made seven attempts to recover possession.
Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
On an unspecified date of 1999, the applicant recovered possession of the apartment.
2. The proceedings against V.C.
In a registered letter of 24 June 1991, the applicant informed the tenant that she 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 17 April 1992, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Naples Magistrate.
By a decision of 22 June 1992, which was made enforceable on 17 July 1992, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 22 June 1993.
On 11 September 1995, the applicant served notice on the tenant requiring him to vacate the premises.
On 23 October 1995, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 4 November 1995.
Between 4 November 1995 and 28 October 1997, the bailiff made five attempts to recover possession.
Each attempt proved unsuccessful, as the applicant the applicant was not entitled to police assistance in enforcing the order for possession.
Following the entry into force of Law no. 431/98, the enforcement of the eviction proceedings was suspended until 31 January 2000.
In April 2000, the tenant entered into a new lease with the applicant.
3. The proceedings against S.E.
In a writ served on the tenant on 11 May 1992, the applicant informed the tenant of her intention to terminate the lease on expiry of the term on 8 December 1992 and summoned him to appear before the Naples Magistrate.
By a decision of 20 May 1992, which was made enforceable on 25 September 1992, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 20 May 1993.
On 11 September 1995, the applicant served notice on the tenant requiring him to vacate the premises.
On 23 October 1995, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 4 November 1995.
Between 4 November 1995 and 25 November 1999, the bailiff made twelve attempts to recover possession.
Each attempt proved unsuccessful as the applicant was not entitled to police assistance in enforcing the order for possession.
On 24 March 2000, the applicant recovered possession of the apartment.
4. The proceedings against I.R.
In a registered letter of 24 May 1991, the applicant informed the tenant that she 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 7 May 1992, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Naples Magistrate.
By a decision of 20 May 1992, which was made enforceable on 27 May 1992, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 20 May 1993.
On 1 October 1992, I.R. died and F.E. succeeded in the lease.
On 23 October 1995, the applicant served notice on the tenant requiring him to vacate the premises.
On 10 October 1995, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 2 December 1995.
Between 2 December 1995 and 27 October 1997, the bailiff made five attempts to recover possession.
Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
Following the entry into force of Law no. 431/98, the enforcement of the eviction proceedings was suspended until 31 January 2000.
On 24 March 2000, the applicant recovered possession of the apartment.
5. The proceedings against F.D., A.M. and G.R.
In a registered letter of 24 May 1991, the applicant informed the tenants that she intended to terminate the lease on expiry of the term on 8 February 1992 and asked them to vacate the premises by that date.
In a writ served on the tenants on 8 May 1992, the applicant reiterated her intention to terminate the lease and summoned the tenants to appear before the Naples Magistrate.
By a decision of 20 May 1992, which was made enforceable on 27 May 1992, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 20 March 1993.
On 23 October 1995, the applicant served notice on the tenants requiring them to vacate the premises.
On 10 November 1995, she served notice on the tenants informing them that the order for possession would be enforced by a bailiff on 2 December 1995.
Between 2 December 1995 and 28 October 1997, the bailiff made five attempts to recover possession.
Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. Following the entry into force of Law no. 431/98, the enforcement of the eviction proceedings was suspended until 31 January 2000.
On 17 March 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 apartments 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.
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.
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 remainder of the application admissible, without prejudging the merits of the case.
Erik FriberghChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy