Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22774/93

by IMMOBILIARE SAFFI

against Italy

The European Commission of Human Rights sitting in private on

18 May 1998, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 September 1993

by IMMOBILIARE SAFFI against Italy and registered on 15 October 1993

under file No. 22774/93;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

21 March 1995 and the observations in reply submitted by the

applicant company on 19 April 1995;

- the additional observations submitted by the respondent

Government on 4 April 1996 and by the applicant company on

29 March 1996;

- the Commission's decision of 6 march 1997 to declare the

application admissible and to adjourn the question whether any

issue regarding the right of access to court might arise in the

present case;

- the observations submitted by the respondent Government on 7 July

1997 and the observations in reply submitted by the applicant

company on 15 September 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian building society, having its

registered office in Livorno and acting through its managing director,

Mr Rodolfo Cagliata. Before the Commission, it is represented by

Mr Nino Amadei, a lawyer practising in Livorno.

The facts of the case, as submitted by the parties, may be

summarised as follows.

Company I.B., a building society, was the owner of an apartment

in Livorno, which it had let to L.B.

By registered letter of 20 April 1983, company I.B. informed the

tenant of its intention to terminate the lease on its expiry, on

31 December 1983.

In November 1983, company I.B. served on the tenant a notice to

quit ("disdetta"); the tenant refused to vacate the premises.

In a writ served on the tenant in November 1983, company I.B.

reiterated the notice to quit and summoned the tenant to appear before

the Livorno magistrate (Pretore); by judgment of 21 November 1983, the

latter formally confirmed the notice to quit and set the date of

eviction at 30 September 1984.

The decision was made enforceable on 7 December 1983.

On 30 May 1985, company I.B. served on the tenant the order

("precetto") to vacate the flat.

On 26 September 1985, it served on the tenant the warning

("significazione di sfratto") that on 19 November 1985 a bailiff would

enforce the eviction.

Several attempts made by the bailiff on 19 November 1985,

28 March 1986, 30 September 1986, 17 December 1986, 4 April 1987 and

21 December 1987 were unsuccessful.

Following a corporate merger with, inter alia, company I.B., in

1988 the applicant company became the owner of the apartment at issue.

It continued the enforcement proceedings in its capacity as owner.

Thereafter, numerous attempts (15 December 1988, 9 June 1989,

30 October 1989, 30 October 1990, 17 February 1991, 17 May 1991, 18 May

1992, 15 May 1993, 8 February 1994) by a bailiff to evict the tenant

were unsuccessful, as the applicant company was never granted the

assistance of the police in enforcing the order for possession,

pursuant to the subsequent laws on suspension of enforcement of

evictions.

At the time when Law No. 61 of 21 February 1989 suspending the

enforcement of eviction orders came into effect, 1,186 requests for

police assistance had been filed with the Prefect of Livorno, 354 of

which had been issued on grounds of arrears, 722 because the lease had

expired, 56 because the owner needed the premises and 55 for other

reasons. The case of the applicant company was one of the above 722.

So far, the applicant company has not succeeded in evicting the

tenant from its apartment.

b) Relevant domestic law and practice

Since 1947 the public authorities in Italy have frequently

intervened in residential tenancy legislation with the aim of

controlling rents. This has been achieved by rent freezes (occasionally

relaxed when the Government decreed statutory increases), by the

statutory extension of all current leases and by the postponement,

suspension or staggering of evictions.

I. As regards the statutory extension of tenancies

The last statutory extension of all current leases, with the

exception of certain cases specifically prescribed by law, was

introduced by Law No. 392 of 27 July 1978 and remained in force until

31 December 1982, 30 June 1983 or 31 December 1983 depending on the

dates on which the leases were signed.

As regards buildings used for purposes other than housing, the

statutory extension of current leases prescribed by Article 1 para. 9

of Law No. 118 of 5 April 1985 was declared unconstitutional in a

decision (No. 108) handed down by the Constitutional Court on 23 April

1986. In its decision the court held that the statutory restrictions

imposed on property rights under Article 42 of the Constitution, with

a view to ensuring social justice, made it possible to regard controls

imposing restrictions as legitimate, provided that such controls were

of an exceptional and temporary nature but that perpetuating such

restrictions was incompatible with the protection of property rights

embodied in Article 42 of the Constitution.

In its decision, the Constitutional Court also pointed out that

the statutory six-month extension of leases on buildings used for

purposes other than housing, prescribed by Law No. 118, should not be

considered in isolation but within the context of the entire system of

tenancy regulations. The court drew particular attention to the fact

that this extension succeeded other statutory extensions and could mark

the beginning of new restrictions on freedom of contract in this field.

Moreover, the statutory extension of leases had the effect of

prolonging contracts in which the rent, notwithstanding the increases

allowed in accordance with rises in the cost of living, "was far

removed from the current socio-economic conditions". Further, the law

concerned did not give the lessor the possibility to regain possession

of the property except in cases of absolute necessity.

The Constitutional Court also held that Law No. 118, inasmuch as

it provided for a blanket extension of current leases without taking

into consideration the particular economic circumstances of lessors and

lessees - as would have been necessary to ensure social justice -,

infringed the principle of the equality of citizens before the law

embodied in Article 3 of the Constitution.

II. As regards enforcement

Judgments are made enforceable by adding thereto the judge's

order "to all bailiffs who may be requested and to whoever may be

competent to enforce the judgment, to the public prosecutor and to all

public safety officials ("ufficiali della forza pubblica") to assist

in the enforcement, when they are legally so requested".

It is for the judge to set the date for the eviction to be

carried out (Article 56 of Law 392/78).

Under Articles 608 and 513 of the code of civil procedure, the

bailiff orders the tenant to vacate the premises and can request to

this end the assistance of the police "whenever it is necessary". The

bailiff reinstates the landlord in his or her property and gives him

or her the keys thereto.

The police act as "assistants to the judge" ("ausiliari del

giudice").

Numerous provisions have established rules for the postponement,

suspension or staggering of the enforcement of judicial decisions

ordering tenants to vacate the premises they occupy (ordinanze di

sfratto).

A first suspension was introduced by Legislative Decree No. 795

of 1 December 1984. The provisions set forth therein were incorporated

in Legislative Decree No. 12 of 7 February 1985, which became

Law No. 118 of 5 April 1985, covering the period from 1 December 1984

to 30 June 1985. This legislation also provided for the staggered

postponement of enforced evictions to 1 July 1985, 30 September 1985,

30 November 1985 or 31 January 1986 respectively, depending on the date

on which the judgment recording the end of the lease had become

enforceable.

Section 1(3) of Law no. 118 stipulated that such suspensions were

not applicable if repossession of the premises had been ordered because

arrears of rent were owed. Similarly, no suspension could be ordered

in the following cases:

(i) where, after conclusion of the contract, the lessor

required the property for his own use or for that of his

spouse or his children or grandchildren, for residential,

commercial or professional purposes, or where a lessor who

intended to use the premises for one of the above-mentioned

purposes (a) offered the tenant similar accommodation at a

rent which he could afford and which was not more than 20%

higher than the previous rent and (b) undertook to pay the

costs of the tenant's removal (Article 59, first

subsection, paragraphs 1, 2, 7 and 8 of Law no. 392 of

27 July 1978 ("Law no. 392") and

(ii) where, inter alia, a lessor urgently needed to regain

possession of his flat as accommodation for himself, his

children or his ascendants (Article 3, first paragraph sub-

paragraphs 1, 2, 4 and 5 of Legislative Decree No. 629 of

15 December 1979, which became Law No. 25 of 15 February

1980 ("Law no. 25")).

A second suspension was introduced by Legislative Decree No. 708

of 29 October 1986, which became Law No. 899 of 23 December 1986. It

covered the period from 29 October 1986 to 31 March 1987 and provided

for the same exceptions as the provisions in the preceding legislation.

Law no. 899 of 23 December 1986 also established that the Prefect

was competent to determine the criteria for authorising police

assistance in evicting recalcitrant tenants, after consulting a

committee including representatives of both tenants and landlords ("the

Prefectorial Committee").

Section 3 (5 bis) of Law no. 899 of 23 December 1986 also

provided for the automatic suspension until 31 December 1987 of

forcible evictions of tenants entitled to subsidised housing.

A third suspension was introduced by Legislative Decree No. 26

of 8 February 1988, which became Law No. 108 of 8 April 1988. It first

covered the period from 8 February to 30 September 1988 and was

subsequently extended from the latter date to 31 December 1988.

A fourth suspension was introduced by Legislative Decree No. 551

of 30 December 1988, which became Law No. 61 of 21 February 1989, and

covered the period up to 30 April 1989. In regions suffering from

natural disasters the suspension remained in force until

31 December 1989.

With the exception of urgent cases, this Law also provided that

police assistance in enforcing evictions should only be authorised in

gradual stages over a period of forty-eight months as of 1 January 1990

and set up a prefectorial committee responsible for deciding which

cases most urgently required police intervention. Among these urgent

cases there were those when the lessor urgently needed to regain

possession of his flat as accommodation for himself, his spouse, his

children or his ascendants. For his case to be dealt with in priority,

the lessor had to make a solemn declaration.

The system of staggered resumption of forcible evictions has been

extended by a series of law-decrees: law-decree no. 723 of 20 December

1994 extended the date of resumption to 31 December 1995 ; law-decree

No. 546 of 23 December 1995 extended this date to 29 February 1996.

Law-decrees no. 81/1996, 217/1996 and 335/1996 have extended that date

to 26 April, 25 June and 31 December 1996 respectively.

Law No. 566 of 4 November 1996 ratified a series of Law-decrees

which had not been converted into Laws and which had staggered the

granting of police assistance until 30 June 1997.

Law-decree 172/1997 extended that date to 31 January 1998. This

decree enlarged the competence of the Prefect who, besides laying down

the general criteria for granting police assistance, is now responsible

for fixing the actual time and modalities of the granting of police

assistance taking into consideration the particular circumstances of

each case and with no obligation to follow the chronological order of

the requests for police assistance by the bailiffs. Accordingly, the

Prefectorial Committee can nowadays only express its opinion on the

general criteria for the grant of police assistance and not also on the

grant of such assistance in individual cases.

Law-decree 7/1998 has extended the date of resumption of forcible

evictions to 31 October 1998.

COMPLAINTS

1. The applicant company alleges that the fact that for a prolonged

period it has been impossible for it to recover possession of its flat,

owing to the implementation of emergency legislative provisions on

residential property leases, has infringed its right to the peaceful

enjoyment of its possessions guaranteed by Article 1 of Protocol No. 1.

2. Relying on Article 6 para. 1 of the Convention, the applicant

company alleges that its case has not been heard within a reasonable

time on account of the implementation of legislative provisions

suspending the enforcement of evictions.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 September 1993 and

registered on 15 October 1993.

On 11 January 1995 the Commission (First Chamber) decided to

communicate the application.

The Government's written observations were submitted on 21 March

1995, after an extension of the time-limit fixed for that purpose. The

applicant company replied on 19 April 1995.

On 29 March 1996 and 4 April 1996 respectively the applicant

company and the Government submitted additional observations in the

light of the judgments delivered on 28 September 1995 by the European

Court of Human Rights in the cases Scollo v. Italy and Spadea and

Scalabrino v. Italy.

On 26 February 1997 the First Chamber decided to relinquish

jurisdiction in favour of the Plenary.

On 6 March 1997 the Commission decided to declare admissible the

applicant company's complaints under Article 1 of Protocol No. 1 and

Article 6 para. 1 of the Convention (length of the proceedings) and to

adjourn the question whether any issue regarding the right of access

to court might arise in the present case.

The Government submitted their observations in this respect on

7 July 1997 and the applicant company submitted its observations in

reply on 15 September 1997.

THE LAW

The present case concerns the impossibility of enforcing the

eviction of a tenant from the applicant's flat, due to the lack of

assistance by the police. The applicant company's complaints under

Article 1 of Protocol No. 1 (P1-1) and Article 6 para. 1 (Art. 6-1) of

the Convention (length of the proceedings) were declared admissible by

the Commission on 6 March 1997.

On 6 March 1997 the Commission also raised the question whether

any issue regarding the right of access to court might arise in the

present case.

The Government argue that the length of the proceedings cannot

be attributed to the judicial authorities, being exclusively due to the

insertion in the judicial procedure of an administrative phase

depending on the Prefect and having as its object the granting of

police assistance. Even assuming that the State can be held responsible

for delays not attributable to the judicial authorities but to the

legislator, the proceedings have not exceeded a "reasonable time",

given that the applicant company is not entitled to priority in the

granting of police assistance.

As to the right of access to a court, the Government consider

that the applicant company had the full benefit thereof, as it was able

to submit its claim for repossession of its property to the Livorno

Magistrate who issued an order for possession in its favour. Despite

the delay in enforcing such order, both the substantive and the

enforcement proceedings are under the supervision of an independent and

impartial judicial authority. The choice of the legislator to allocate

to the Prefect the power not to grant police assistance for a certain

period of time is justified and aims at striking a balance between the

owner's interests and the housing shortages (which balance is required

under Article 1 of Protocol No. 1 (P1-1)). The choices of the Prefect

are taken within a rigid legal framework fixing the criteria for

priority in the granting of police assistance. In any event, the

Prefect's choices as regards both the general criteria for granting

police assistance and the granting of such assistance in the particular

cases are subjected to the control of the administrative judge.

The applicant company submits that the power vested in the

Prefect to lay down the criteria for execution of evictions has made

it impossible to obtain compulsory evictions from properties within a

reasonable time. The law - which has had the effect of paralysing the

execution of orders for possession - made no provision for the

possibility of applying to an ordinary or administrative court for an

executive eviction procedure, so that it is clear that there is no

independent and impartial judicial body before which the right to the

return of real property may be enforced. The possibility of applying

to the administrative court to challenge the acts of the Prefect is

purely theoretical, given the latter's very wide margin of

appreciation.

The Commission considers, in the light of the parties'

submissions, that this aspect of the case raises complex issues of fact

and law under the Convention, the determination of which should depend

on an examination of the merits of the application as a whole. The

Commission concludes therefore that this part of the application is not

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ALSO ADMISSIBLE in respect of the right

of access to a court, without prejudging the merits of the case.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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IMMOBILIARE SAFFI v. ITALY

IMMOBILIARE SAFFI v. ITALY

LEXI