FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Applications nos. 41932/98, 41934/98, 41935/98, 41937/98,
41938/98, 41939/98, 42730/98, 42732/98 and 42733/98
by ISTITUTO NAZIONALE CASE SRL
against Italy
The European Court of Human Rights (First Section), sitting on 5 September 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 applications respectively introduced with the European Commission of Human Rights on 18 May 1998 and 26 May 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the applications 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
1) Application no. 41939/98
In a writ served on the tenant on 23 January 1987, the applicant informed him of its intention to terminate the lease on expiry of the term on 3 December 1988 and summoned him to appear before the Torre Annunziata Magistrate.
By a decision of 25 February 1987, which was made enforceable on the same day, the Torre Annunziata Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 March 1990.
On 21 April 1995, the applicant served notice on the tenant requiring him to vacate the premises.
On 21 April 1995, it served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 2 May 1995.
Between 2 May 1995 and 5 November 1997, the bailiff made six 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 the tenant entered into a new lease.
2) Applications nos. 41932/98, 41934/98, 41938/98 and 42733/98
In a writ served on the tenants on 23 January 1987, the applicant informed them of its intention to terminate the lease on expiry of the term on 3 December 1988 and summoned them to appear before the Torre Annunziata Magistrate.
By a decision of 25 February 1987, which was made enforceable on the same day, the Torre Annunziata Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 March 1990.
On 21 April 1995, the applicant served notice on the tenants requiring them to vacate the premises.
On 21 April 1995, it served notice on the tenants informing them that the order for possession would be enforced by a bailiff on 2 May 1995.
Between 2 May 1995 and 5 November 1997, the bailiff made six attempts to recover possession.
Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
Proceedings no. 41932/98: on 1 September 2000, the tenant spontaneously left the premises and the applicant recovered possession of the apartment.
Proceedings no. 41934/98: on 3 August 1999, the tenant entered into a new lease.
Proceedings no. 41938/98: in November 1999, the applicant recovered possession of the apartment.
Proceedings no. 42733/98: in September 1999, the tenant died and the applicant recovered possession of the apartment.
3) Applications no. 41935/98 and 41937/98
In a writ served on the tenants on 23 June 1983, the applicant informed them of its intention to terminate the lease on expiry of the term on 31 December 1983 and summoned them to appear before the Torre Annunziata Magistrate.
By a decision of 8 October 1983, which was made enforceable on the same day, the Torre Annunziata Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 1 January 1986.
On 2 February 1995, the applicant served notice on the tenants requiring them to vacate the premises.
On 21 April 1995, it served notice on the tenants informing them that the order for possession would be enforced by a bailiff on 2 May 1995.
Between 2 May 1995 and 5 November 1997, the bailiff made six attempts to recover possession.
Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
Proceedings no. 41935/98: on 3 June 2001, the tenant spontaneously left the premises and the applicant recovered possession of the apartment.
Proceedings no. 41937/98: on an unspecified date of April 1999, the tenant spontaneously left the premises and the applicant recovered possession of the apartment.
4) Application no. 42730/98
In a writ served on M.G. (the tenant) on 14 June 1983, the applicant informed him of its intention to terminate the lease on expiry of the term on 31 December 1983 and summoned him to appear before the Torre Annunziata Magistrate.
By a decision of 8 October 1983, which was made enforceable on the same day, the Torre Annunziata Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 1 January 1986.
On 2 February 1995, the applicant served notice on the tenant requiring him to vacate the premises.
On 21 April 1995, it served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 2 May 1995.
Between 2 May 1995 and 27 November 1998, the bailiff made eight attempts to recover possession.
Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
At the end of June 1999, the applicant recovered possession of the apartment.
5) Application no. 42732/98
In a writ served on M.A. (the tenant) on 23 January 1987, the applicant informed her of its intention to terminate the lease on expiry of the term on 31 December 1988 and summoned her to appear before the Torre Annunziata Magistrate.
By a decision of 25 February 1987, which was made enforceable on the same day, the Torre Annunziata Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 May 1991.
On 2 February 1995, the applicant served notice on the tenant requiring her to vacate the premises.
On 21 April 1995, it served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 2 May 1995.
Between 2 May 1995 and 27 November 1998, the bailiff made eight attempts to recover possession.
Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
On 3 August 2002, the applicant recovered possession of the apartment.
THE LAW
1. The applicant complains under Article 1 of Protocol No. 1 to the Convention that its inability to recover possession of its apartments amounted to a violation of the right to property.
2. The applicant further complains that the length of the enforcement proceedings was excessive and in breach of Article 6 § 1 of the Convention.
1) Application no. 41939/98
On 13 March 2001 the Court invited the applicant’s lawyer to submit an update of the facts of the case before 17 April 2001. Having received no reply, by a registered letter of 18 September 2001, the Registry of the Court reminded the applicant’s lawyer that the deadline for submitting information had expired warned him that, no extension of the time-limit having been requested, the Court might decide to strike the case off its case-list. The applicant’s lawyer did not submit an update of the facts.
On 7 May 2002, the Registry of the Court requested the applicant’s lawyer by fax, to specify when the tenant entered into a new lease. The applicant’s lawyer did not send any information.
In the light of the above, in accordance with Article 37 § 1 of the Convention, the Court now considers that the applicant has lost interest in its application. Furthermore, the Court finds no special circumstances regarding respect for human rights as defined in the Convention which require the continuation of the examination of the application.
2) Applications nos. 41934/98, 41937/98, 41938/98, 42730/98 and 42733/98
Article 1 of Protocol No. 1
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 and the applications should be declared inadmissible.
The Court considers that the interference complained of amounted to control of the use of property within the meaning of the second paragraph of Article 1, and pursued a legitimate aim in the general interest, as required by that provision (see the Immobiliare Saffi v. Italy [GC], no. 22774/93, 28 July 1999, §§ 46 and 48, ECHR-V, and the Scollo v. Italy judgment of 28 September 1995, Series A n° 315-C, p. 26, §§ 30-31).
The Court recalls that an interference “must strike a “fair balance” between the demands of the general interest and the requirements of the protection of the individual’s fundamental rights. The concern to achieve this balance is reflected in the structure of Article 1 as a whole, and therefore also in its second paragraph. There must be a reasonable relationship of proportionality between the means employed and the aim pursued. In determining whether this requirement is met, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question. In spheres such as housing, which plays a central role in the welfare and economic policies of modern societies, the Court will respect the legislature’s judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation” (see the Immobiliare Saffi v. Italy judgment, § 49).
The Court considers that, in principle, the Italian system of staggering of the enforcement of court orders is not in itself open to criticism, having regard in particular to the margin of appreciation permitted under the second paragraph of Article 1. However, such a system carries with it the risk of imposing on landlords an excessive burden in terms of their ability to dispose of their property and must accordingly provide certain procedural safeguards so as to ensure that the operation of the system and its impact on a landlord’s property rights are neither arbitrary nor unforeseeable (see, mutatis mutandis, the Immobiliare Saffi v. Italy judgment, § 54).
The Court must thus ascertain whether, in the instant cases, a balance was maintained between the relevant interests (see the Scollo v. Italy judgment cited above, § 37).
The Court finds that the restriction on the applicant’s use of its flats, which restriction lasted between three years and one months and four years and six months did not impose on it an individual and excessive burden, contrary to the requirements of the second paragraph of Article 1 of Protocol No. 1 (see, a contrario, the Scollo v. Italy judgment, cited above, § 40; see also, mutatis mutandis, Caselli v. Italy (dec.), no. 36679/97, 20 January 2000, unpublished).
It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.
Article 6 § 1 of the Convention
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 length of the proceedings at issue was not unreasonably long, therefore the applications should be declared inadmissible.
The Court considers that this complaint should be examined in connection with the more general right to a court (see the Immobiliare Saffi judgment cited above, § 61).
The right to a court as guaranteed by Article 6 also protects the implementation of final, binding judicial decisions, which, in States that accept the rule of law, cannot remain inoperative to the detriment of one party (see, mutatis mutandis, the Hornsby v. Greece judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, p. 510, § 40).
Accordingly, the execution of a judicial decision cannot be unduly delayed. However, a stay of execution of a judicial decision for such a period as is strictly necessary to enable a satisfactory solution to be found to public-order problems may be justified in exceptional circumstances (see the Immobiliare Saffi v. Italy judgment cited above, § 69).
In the present cases, the Court notes that after the applicant sought the enforcement of the eviction order and before it recovered possession of its apartments, it had to wait three years and one months and four years and six months. The applicant did not want to recover possession of the apartments as accommodations for itself but only to increase the lease. Having in mind the public order problems which Italy admittedly has had to face in the field of housing, the Court considers that this delay was not so long as to deprive the order for possession of all useful effect or of undermining its substance (see, a contrario, the Immobiliare Saffi v. Italy judgment cited above, § 73; see also, mutatis mutandis, Caselli v. Italy (dec.), no. 36679/97, 20 January 2000, unpublished).
Further, the Court considers, bearing in mind the practical difficulties raised by the enforcement of a very large number of evictions, that the length of the proceedings at issue was not unreasonably long (see, a contrario, the Scollo v. Italy judgment cited above, § 44 in fine).
It follows that this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.
3) Proceedings nos. 41932/98, 41935/98 and 42732/98
The Government argue that the applicant has not exhausted domestic remedies on the grounds that it 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 applications raise complex and serious issues, which require a determination on the merits. It follows that they cannot be considered manifestly ill founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the applications inadmissible has been established.
For these reasons, the Court unanimously
Decides to strike application no. 41939/98 out of its list of cases;
Declares inadmissible applications nos. 41934/98, 41937/98, 41938/98, 42730/98 and 42733/98;
Declares admissible, without prejudging the merits of the cases, applications nos. 41932/98, 41935/98 and 42732/98.
Erik FriberghChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy