Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22671/93

by G.L.

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 3 May 1993 by G.L.

against Italy and registered on 23 September 1993 under file

No. 22671/93;

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

15 June 1995 and the observations in reply submitted by the

applicant on 16 September 1995;

- the additional observations submitted by the applicant on

20 March 1996 and by the respondent Government on 30 May 1996 ;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national, born in 1927 and residing

in Pavia.

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

summarised as follows.

a) The circumstances of the case

The applicant owns an apartment in Milan, which he had let at a

low rent pursuant to a 1969 law on rent control ("equo canone"). His

tenant owns a shop and is shopkeeper together with his family.

On 18 November 1985, the applicant gave his tenant notice to quit

the flat upon expiry of the lease on 28 December 1988; the tenant

refused to vacate the premises.

In a writ served on the tenant on 22 January 1988, the applicant

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

the Milan magistrate (Pretore); by judgment of 1 February 1988, the

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

eviction at 1 September 1989. The decision was made enforceable on

22 February 1988.

On 25 August 1989 the applicant served on the tenant the order

("precetto") to vacate the apartment.

On 6 November 1989, he served on the tenant the warning

("significazione di sfratto") that on 13 November 1989 a bailiff would

enforce the eviction.

On 13 November 1989, the bailiff adjourned the eviction to

19 January 1990, pursuant to the instructions given by the Milan

Prefect on 8 May 1989. Further attempts to evict the tenant (on

20 February, 7 April, 15 November 1990, were unsuccessful.

On 15 September 1992, the applicant served on the tenant a second

order to vacate the apartment, and, on 28 October 1992, the warning

that on 20 November 1992 a bailiff would enforce the eviction. The

attempts made by the bailiff on 20 November 1992 and 25 February 1993

were unsuccessful.

By a deed of 20 September 1993 the applicant made a solemn

declaration under Law no. 899 of 23 December 1986 that he needed to

recover the flat so that his son could live there. He said that his

case should accordingly be given priority.

However, the attempts made by the bailiff to evict the tenant on

14 October 1993, 18 January, 12 April, 28 June and 18 October 1994,

31 January, 13 April and 18 July 1995, were unsuccessful, as the

applicant was never granted the assistance of the police in enforcing

the order to vacate.

So far, the applicant has not recovered possession of his flat.

As of May 1995, the tenant has ceased the payment of the

condominium expenses.

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.

It should, however, be noted that, 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,

make it possible to regard controls imposing restrictions as

legitimate, provided that such controls are of an exceptional and

temporary nature" but that "the act of 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

Numerous provisions have established rules for the postponement,

suspension or staggering 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.

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 subsided 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 only be authorised in gradual

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

up a prefectural committee responsible for deciding which cases most

urgently required police intervention. Consequently the date on which

owners could regain possession of their flats could be postponed to

31 December 1993.

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

police assistance in enforcing evictions only be authorised in gradual

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

up a prefectural 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

of 23 December 1995 extended this date to 29 February 1996. Law-decrees

no. 81/1996 and 335/1996 have extended that date to 20 June and

31 December 1996 respectively.

COMPLAINTS

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

it has been impossible for him to recover possession of his flat, owing

to the implementation of emergency legislative provisions on

residential property leases, has infringed his right to the peaceful

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

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

alleges that his 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 3 May 1993 and registered on

23 September 1993.

On 22 February 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on 15 June

1995. The applicant replied on 16 September 1995.

On 13 March 1996, the parties were requested to submit their

additional observations following the judgments of the European Court

of Human Rights in the cases Spadea-Scalabrino and Scollo v. Italy,

delivered on 28 September 1995. The applicant and the respondent

Government submitted their observations on 20 March 1996 and on 30 May

1996 respectively. The applicant submitted further additional

observations in reply to the Government on 16 June 1996.

THE LAW

1. The applicant complains about the prolonged impossibility for him

to recover possession of his apartment, owing to the implementation of

emergency legislative provisions on residential property leases.

He alleges a violation of Article 1 of Protocol No. 1 (P1-1) to

the Convention, which provides as follows:

"Every natural and 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 first allege that the applicant failed to support

his allegation that he has made the solemn declaration under Law

no. 899 of 23 December 1986. The present case would thus be similar to

the Spadea and Scalabrino case (Eur. Court HR, Spadea and Scalabrino

v. Italy judgment of 28 September 1995, Series A no. 315-B), in which

the Court has found no violation of Article 1 of Protocol No. 1

(P1-1) on grounds that the measures taken were justified from the

social point of view in order to safeguard public order and to protect

tenants.

The Government then argue that, should the applicant provide copy

of such declaration, the application would then have to be declared

inadmissible for failure to exhaust domestic remedies, the applicant

having failed to appeal to the regional administrative court and then

to the supreme administrative court (Consiglio di Stato) against the

refusal by the Prefect to grant him priority in the assistance of the

police.

The applicant disputes the Government's allegations and in

contrast claims that the present case is similar to the Scollo case

(Eur. Court HR, Scollo v. Italy judgment of 28 September 1995, Series A

no. 315-C); in particular, he claims that his tenant is undoubtedly

well-off and does not deserve any special protection by the

authorities.

The Commission observes that it appears from the affidavits drawn

up by the bailiff starting from 14 October 1993 that the eviction was

considered as deserving priority ("sfratto per necessità"); the solemn

declaration was attached to the affidavit on 18 October 1994.

As regards the Government's objection, the Commission recalls the

Convention organs' established case-law to the effect that the

obligation to exhaust domestic remedies requires only that an applicant

make normal use of remedies that relate to the breaches alleged and at

the same time are available and sufficient. The existence of such

remedies must be sufficiently certain not only in theory but also in

practice, failing which they lack the requisite accessibility and

effectiveness. It falls for the respondent State to establish that

these various conditions are satisfied (see Eur. Court HR, De Jong,

Baljet and Van der Brink v. the Netherlands judgment of 22 May 1984,

Series A no. 77, p. 19, para. 39; amongst others, No. 14807/89,

Dec. 12.2.92, D.R. 72, p. 148; No. 12742/87, Dec. 3.5.89, D.R. 61,

p. 206 and No. 14992/89, Dec. 7.6.90, D.R. 66, p. 247).

In the present case, the Commission first underlines that the

Prefect enjoys of a very wide margin of appreciation in granting the

assistance of the police in evicting recalcitrant tenants. The

Commission therefore doubts that administrative courts would overrule

the Prefect's decisions in this respect. In addition, the Commission

notes that the respondent Government were unable to cite any precedent:

accordingly, they have not shown that this remedy could constitute an

available and sufficient remedy that the applicant ought to have

exhausted.

It follows that the Government's objection as to the exhaustion

of domestic remedies must be rejected.

As to the merits, the Commission considers that the question of

whether the applicant's failure to recover possession of his flat

constitutes a breach of the rights secured to him by Article 1 of

Protocol No. 1 (P1-1), raises questions of fact and law of such

complexity that their determination should depend on an examination on

the merits. It follows that this complaint cannot be dismissed as

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

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

inadmissible has been established.

2. The applicant further complains about the length of the

enforcement proceedings. He relies on Article 6 para. 1 (Art. 6-1) of

the Convention which provides:

"In the determination of his civil rights and obligations ...

everyone is entitled to a fair and public hearing within a

reasonable time ...".

The Government did not submit any observations on this point.

The Commission finds that this complaint raises serious questions

of fact and law which are of such complexity that their determination

should depend on an examination on the merits. It follows that it

cannot be dismissed as manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for

declaring it inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

Menu

G.L. v. ITALY

G.L. v. ITALY

LEXI