SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 33253/96
by Guglielmina THIEGHI
against Italy
The European Court of Human Rights (Second Section), sitting on 25 May 2000 as a Chamber composed of
MrC.L. Rozakis, President,
MrB. Conforti,
MrG. Bonello,
MrsV. Strážnická,
MrM. Fischbach,
MrsM. Tsatsa-Nikolovska,
MrE. Levits, judges,
andMrE. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 26 June 1996 and registered on 30 September 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 1917 and living in Milan.
She is represented before the Court by Mrs Ida Bassano, a lawyer practising in Milan.
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 Milan, which she had let to G.D. The lease was due to expire on 29 June 1987.
In a writ served on the tenant on 3 February 1987, the applicant informed the tenant of her intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.
By a decision of 23 February 1987, which was made enforceable on 6 March 1987, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 29 June 1988.
On 13 February 1990, the applicant served notice on the tenant requiring him to vacate the premises.
On 15 March 1990, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 30 March 1990.
Between 30 March 1990 and 18 April 1997, the bailiff made 23 attempts to recover possession, on 30 March 1990, 7 June 1990, 25 October 1990, 9 April 1991, 8 October 1991, 18 February 1992, 19 May 1992, 24 September 1992, 11 December 1992, 11 March 1993, 8 June 1993, 30 November 1993, 28 July 1994, 26 January 1995, 11 April 1995, 22 June 1995, 19 October 1995, 30 January 1996, 16 April 1996, 12 July 1996, 23 September 1996, 21 January 1997 and 18 April 1997.
Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.
On 11 June 1997, the applicant discontinued the eviction proceedings and accepted the tenant’s proposal to stipulate a new lease.
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 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, given the impossibility to obtain the assistance of the police in enforcing the order for possession, she was obliged to enter a new lease with the same tenant in order to obtain at least a higher rent. Therefore she is a victim of a violation of 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 the impossibility during ten years to enforce the order for possession of the Milan Magistrate constitutes a violation of Article 6 § 1 of the Convention.
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