SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 31460/96
by Federica TARDUCCI
against Italy
The European Court of Human Rights (Second Section), sitting on 22 June 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,[Note1]
andMrE. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 14 November 1995 and registered on 13 May 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 1962 and living in Sesto Fiorentino (Florence).
The facts of the case, as submitted by the applicant, may be summarised as follows.
A.The circumstances of the case
The applicant is the owner of an apartment in Sesto Fiorentino (Florence), which she had let to E.C.
In a registered letter of 13 June 1983, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1987 and asked him to vacate the premises by that date. The tenant refused to leave.
In a writ served on the tenant on 10 January 1989, the applicant summoned the tenant to appear before the Florence Magistrate.
By a decision of 13 February 1989, which was made enforceable on 14 March 1989, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 13 February 1990.
On 21 March 1990, the applicant served notice on the tenant requiring him to vacate the premises.
On 11 April 1990, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 10 May 1990.
Between 10 May 1990 and 30 March 1993, the bailiff made 6 attempts to recover possession, on 10 May 1990, 13 December 1990, 28 June 1991, 25 March 1992, 30 September 1992 and 30 March 1993.
Each attempt proved unsuccessful, as, under the statutory provisions providing for the suspension or the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.
On 10 July 1993, the applicant had made a statutory declaration that she urgently required the premises as accommodation for herself and her husband.
Between 10 November 1993 and 20 September 1996, the bailiff made 7 attempts to recover possession, on 10 November 1993, 28 April 1994, 7 October 1994, 23 February 1995, 22 September 1995, 7 March 1996 and 20 September 1996.
Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
Having reached a friendly settlement with the tenant, on 26 September 1996, the applicant repossessed the 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
1.The applicant complains about her prolonged inability - through lack of police assistance - to recover possession of her apartment.
2.The applicant further complains under Article 6 § 1 of the Convention about the duration of the eviction proceedings.
THE LAW
The applicant complains that her inability to recover possession of her apartment amounted to a violation of her 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, despite her urgent necessity to use the apartment, she could not repossess it during nine years from the issue of the order for possession. This situation amounts to a violation of her right under Article 1 of Protocol No. 1.
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 6 years of delay in the enforcement of the order issued by the Milan Magistrate violates Article 6 of the Convention. The applicant further argues that the impossibility to enforce the order for possession has violate her right to a 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
[Note1]Judges names are to be followed by a COMMA and a MANUAL LINE BREAK (Shift+Enter). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)
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