THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Applications nos. 66567/01, 66583/01 and 68311/01
by Maria Luisa TUFANO
against Italy
The European Court of Human Rights (First Section), sitting on 20 January 2005 as a Chamber composed of:
MrB.M. Zupančič, President,
MrJ. Hedigan,
MrL. Caflisch,
MrsM. Tsatsa-Nikolovska,
MrV. Zagrebelsky,
MrE. Myjer,
MrDavid Thór Björgvinsson, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above applications lodged on 22 February 2001 and 5 April 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, Mrs Maria Luisa Tufano, is an Italian national who was born in 1948 and lives in Naples.
She was represented before the Court by Mr F. Catapano, a lawyer practising in Naples.
The respondent Government were represented by their successive Agents, respectively Mr U. Leanza and Mr I.M. Braguglia, and by their successive co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli.
A. The circumstances of the case
The facts of the cases, as submitted by the parties, may be summarised as follows.
The applicant is the owner of three flats in Naples, which she had let respectively to F.T., A.S. and G.M., and V.R.
1. The eviction proceedings
a) Application no. 66567/01
In a writ served on the tenant on 26 May 1983, the applicant informed the tenant of her intention to terminate the lease on expiry of the term on 31 December 1983 and summoned her to appear before the Naples Magistrate.
By a decision of 30 April 1985, which was made enforceable on 18 May 1985, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1985.
On 26 January 1990, the applicant served notice on the tenant requiring her to vacate the premises.
On 19 February 1990, she informed the tenant that the order for possession would be enforced by a bailiff on 29 March 1990.
Between 29 March 1990 and 1 September 2000, 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.
In the meanwhile, on 9 June 1998, the applicant made a statutory declaration that she urgently required the premises as accommodation for her daughter as her residence.
On 1 September 2000, the applicant recovered possession of the flat.
b) Application no. 66583/01
In a writ served on the tenant on 26 April 1986, the applicant informed the tenants of her intention to terminate the lease and summoned them to appear before the Naples Magistrate.
By a decision of 13 February 1987, which was made enforceable on the same day, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 14 May 1987.
On 26 January 1990, the applicant served notice on the tenants requiring them to vacate the premises.
On 19 February 1990, she informed the tenants that the order for possession would be enforced by a bailiff on 29 March 1990.
Between 23 March 1990 and 1 September 2000, 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.
In the meanwhile, on 9 June 1998, the applicant made a statutory declaration that she urgently required the premises as accommodation for her daughter as her office.
On 1 September 2000, the applicant recovered possession of the flat.
c) Application no. 68311/01
In a writ served on the tenant on 26 April 1986, the applicant informed the tenant of her intention to terminate the lease and summoned him to appear before the Naples Magistrate.
The tenant told the applicant that he would not leave the premises.
By a decision of 16 May 1988, which was made enforceable on 30 July 1988, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 4 March 1989.
On 26 January 1990, the applicant served notice on the tenant requiring him to vacate the premises.
On 19 February 1990, she informed the tenant that the order for possession would be enforced by a bailiff on 29 March 1990.
Between 29 March 1990 and 25 May 2001, the bailiff made sixteen attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
In the meanwhile, on 29 September 1997, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.
On 20 July 2001, the applicant recovered possession of the flat.
2. The Pinto Act claims
On an unspecified date, the applicant applied to the Rome Court of Appeal, claiming compensation under the Pinto Act for the length of the three eviction proceedings. She sought redress for non-pecuniary and pecuniary damage.
In three decisions of 12 April 2002, filed with the registry on 26 June 2002, the Rome Court of Appeal rejected the claims on the ground that the delay in the eviction was due either to legislative choices or to the lack of police assistance and therefore the administration of justice could not be held responsible.
The applicant did not appeal to the Court of Cassation. The decisions became final, at the latest, on 15 September 2003.
B. Relevant domestic law and practice
The relevant domestic law and practice is described in the decision Provvedi c. Italie (no 66644/01, of 2 December 2004).
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention about the length of the three eviction proceedings.
2. The applicant further complains under Article 1 of Protocol No. 1 that her inability to recover possession of her flats amounted to a violation of the right to property.
THE LAW
1. The applicant complains that the length of the three eviction proceedings was excessive and in breach of Article 6 § 1 of the Convention, which provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
In their observations, which the Court received on 30 October 2002, the Government argued that the applicant had not exhausted domestic remedies. They maintained that following the Court of Cassation's judgment of 18 June 2002, which was lodged with the registry of that court on 26 July 2002, it was clear that a remedy under Law no 89 of 24 March 2001 (the Pinto Act) was also available in respect of eviction proceedings, with the result that anyone considering himself a victim of a violation of Article 6 § 1 on account of the inordinate length of such proceedings could seek compensation from the relevant court of appeal. That applied to any complaint under Article 6 § 1.
The applicant submitted that, because of the rejection of her claims under the Pinto Act, her cases constitute an example of the impossibility to obtain justice in a reasonable time.
The Court recalls that under Law no. 89 of 24 March 2001 (the Pinto Act), anyone who has sustained pecuniary or non-pecuniary damage can apply to the appropriate court of appeal for a declaration that there has been a violation of the European Convention on Human Rights in respect of the “reasonable time” requirement in Article 6 § 1 and claim a sum in just satisfaction. The Court points out that in many cases it has held that the remedy introduced by the Pinto Act is one that the applicant must make use of before the Court rules on the admissibility of the application, regardless of the date on which the latter was lodged (see, among others, Brusco v. Italy (dec.), no. 69789/01, CEDH 2001-IX; Giacometti v. Italy (dec.), no. 34969/97, CEDH 2001-XII; Scordino v. Italy (dec.), no 36813/97, CEDH 2003-IV).
Subsequently, the Court has found that, in cases similar to the present application, the remedy introduced by the Pinto Act is one that the applicants must make use of before it rules on the admissibility of the application with regards to Article 6 § 1 of the Convention also when the right to access to a court is concerned irrespective of the date on which the application was lodged (see Provvedi v. Italy (dec.) quoted above).
The Court recalls that the decisions of the Rome Court of Appeal was filed with the registry on 26 June 2002 and became final, at the latest, on 15 September 2003.
Therefore, the applicant could have appealed them to the Court of Cassation, which stated that « Pinto law » is applicable to the eviction proceedings, within the context of its new jurisprudence (see, Russo and others v. Italy (dec.), no. 63927/00, 12.02.2004; Pollano v. Italy (dec.) no. 63635/00, 18.03.2004; Mosconi v. Italy (dec.), no. 68011/01, 13.05.2004 and, a contrario, Mascolo v. Italy (dec.), no. 68792/01, 16.10.2003).
Having regard to the three proceedings concerned, the Court holds that this part of the applications must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.
2. The applicant complains of her prolonged inability to recover possession of her flats owing to the lack of police assistance. She alleged a violation of her right of property, as guaranteed by 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 Government submitted that the objection of a failure to exhaust domestic remedies also covered the complaint under Article 1 of Protocol No. 1, as the matter complained of was a consequence of the length of proceedings.
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. 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.
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 stressed that prior to the Court of Cassation's judgment, the Italian authorities had affirmed, like in her cases, that the Pinto Act did not apply to eviction proceedings. The Pinto Act, however, would not afford a remedy in order to protect Article 1 of Protocol No. 1.
The Court recalls that in the Mascolo case, quoted above, it considered that the violation of Article 1 of Protocol No. 1 is strictly linked to the length of the procedure of which it constitutes an indirect consequence. Therefore, the Court considered that it was probably under the Pinto Act that applicants should seek redress for the financial consequences that the unreasonable length of the eviction proceedings has on their property.
Subsequently, the Court has found that the remedy introduced by the Pinto Act is one that the applicants must make use of before it rules on the admissibility of the application with regards also to Article 1 of Protocol No. 1 irrespective of the date on which the application was lodged (see Provvedi v. Italy (dec.) quoted above).
It follows that this part of the applications is also inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Declares the applications inadmissible.
Vincent BergerBostjan M. Zupančič
RegistrarPresident
Full & Egal Universal Law Academy