Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15919/89

by Edoardo PALUMBO

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 4 September 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 23 November 1989

by Edoardo PALUMBO against Italy and registered on 19 December 1989

under file No. 15919/89;

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 6 July

1993 and the observations in reply submitted by the applicant on

30 July 1993;

- the additional observations submitted by the applicant on 2 April

1996 and by the respondent Government on 3 April 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national born in 1953 and residing

in Rome. Before the Commission, he is represented by

M. Michele Pazienza, lawyer in Rome.

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

summarised as follows.

a) The circumstances of the case

The applicant is the owner of a flat in Rome, which he had let

to Mrs. A.B. The lease had been extended until 31 December 1983 by Law

no. 392 of 12 July 1978.

In a writ served on 13 October 1983, the applicant gave Mrs A.B.

notice to quit the flat on 31 December 1983, and summoned her to appear

before the Rome magistrate ("pretore").

On 7 October 1983 the magistrate formally confirmed the notice

to quit and set the date of eviction at 31 December 1984. The decision

was served on the tenant on 13 October 1983 and made enforceable on

27 October 1983.

In pursuance of Law no. 94 of 25 March 1982 which had extended

existing leases for a period of two years, the applicant could not

begin enforcement proceedings before 6 March 1986. On 6 March, 8 April,

9 May, 17 June, 22 July, 1 October and 5 November 1986, the bailiff

unsuccessfully attempted to evict the tenant without police assistance.

By a deed dated 6 March 1987 the applicant made a solemn

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

recover his flat in order to live there himself. He said that his case

should accordingly be given priority.

Pursuant to Law no. 899 of 23 December 1986, the execution was

suspended until 31 March 1987.

On 21 April and 28 May 1987, the bailiff made two other

unsuccessful attempts to evict the tenant.

On 24 June 1987 the applicant was granted police assistance in

evicting his tenant; however, on that day the latter claimed to be ill

and no officially appointed doctor was available to check her

allegations. The bailiff arranged to make his next visit to the

premises on 14 July 1987. However, on this occasion the applicant was

not granted the police assistance and the tenant refused to vacate the

premises.

Pursuant to law-decree no. 551 of 30 December 1988 and to Laws

no. 108 of 8 April 1988 and no. 61 of 21 February 1989 the enforcement

of the order for possession was suspended until 31 April 1989.

So far, after 41 unsuccessful attempts by the bailiff, the

applicant has not recovered possession of his flat.

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.

All the aforementioned laws and decrees also contained provisions

relating to the financing of subsidised housing and housing benefit.

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.

3. The applicant further complains of the fact that applying the

legislation in issue entails discrimination between owners of

residential property and tenants, in breach of Article 14 of the

Convention read in conjunction with Article 1 of Protocol no. 1.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 November 1989 and registered

on 19 December 1989.

On 5 April 1993 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 6 July

1993, after an extension of the time-limit fixed for that purpose. The

applicant replied on 30 July 1993.

On 28 February 1995, the case was adjourned awaiting the

judgments of the European Court of Human Rights in the cases Spadea-

Scalabrino and Scollo v. Italy.

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

additional observations following the above judgments, delivered on

28 September 1995. The applicant and the respondent Government

submitted their observations on 2 April and on 3 April 1996

respectively.

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".

a) As to the exhaustion of domestic remedies

The Government first submit that the applicant has not exhausted

the domestic remedies open to him under Italian law in that he 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. In the

course of these proceedings, the applicant could have raised the

question of the constitutionality of the disputed measures by referring

to Article 42 of the Italian Constitution which recognises and

safeguards property rights.

The applicant refutes the Government's objections. He refers to

the case-law of the Convention organs, and in particular to the De Jong

and Van der Brink judgment (see Eur. Court HR, De Jong and Van der

Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77) to

the effect that when a State seeks to rely on the rule of exhaustion

of domestic remedies, it falls to the State to prove that the remedy

they indicate has the requisites of accessibility and effectiveness.

He claims that in the present case the remedy indicated by the

Government is certainly not an effective one, given the well-known

unreasonable length of civil and administrative disputes in Italy, for

which no remedy exists. As to the possibility of raising a question of

constitutionality, the applicant refers to the Court's case-law, to the

effect that it is for the State to show with certainty the existence

of an effective remedy in this respect in light of the established

case-law of domestic courts (see Eur. Court HR, Johnston and others

v. Ireland judgment of 18 December 1986, series A no. 112); the

applicant alleges on the contrary that the respondent Government failed

to do so in the present case.

As regards the first part of the Government's objections, the

Commission recalls the Convention organs' constant 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,

nos. 14807/89, Dec. 12.2.92, D.R. 72, p. 148; 12742/87, Dec. 3.5.89,

D.R. 61, p. 206 and 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. The Commission further 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.

As regards the second part of the Government's objections, the

Commission recalls that when an individual, as under Italian law, is

not entitled to apply directly to the Constitutional Court for a review

of the constitutionality of certain legislation, he does not have

available to him in this respect a remedy whose exhaustion is required

under Article 26 (Art. 26) of the Convention (see Eur. Court H R,

Brozicek v. Italy judgment of 19 December 1989, Series A no. 167, p.

16, par. 34; Padovani v. Italy judgment of 26 February 1993, Series A

no. 257-B, p. 19, par. 20).

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

of domestic remedies must be rejected.

In their additional observations, the Government also submit that

the applicant has never filed with the Prefect any request for the

assistance of the police in evicting his tenant.

The Commission notes that it appears from the affidavit drawn up

by the bailiff after each unsuccessful attempt that the latter

requested each time the assistance of the police, which was in fact

granted on one occasion. Accordingly, this objection must also be

rejected.

b) As to the merits

As regards the substance of the case, the Government consider

that the disputed situation should be examined under Article 1 para. 2

of Protocol no. 1 (P1-1-2) which provides that "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...".

The Government point out that the disputed measures were adopted

to deal with an exceptional situation due on the one hand to a shortage

of reasonably priced housing in certain municipalities, including Rome,

and on the other hand to a large increase in demand resulting from the

expiry of the statutory extension of current leases on 31 December

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

the contracts of lease were signed.

At the same time it was difficult to accede to every request for

police assistance in the enforcement of eviction orders.

In the Government's opinion the measures taken were justified

from the social point of view and in order to safeguard public order.

They were therefore compatible with the general interest.

The applicant refute the Government's arguments. He points out

that the exceptional situation referred to by the Italian Government,

and which entails restrictions on property rights, has existed in

various forms since 1947. He considers that the measures of which he

is a victim constitute an infringement of his right to the enjoyment

of his possessions and that, in particular in light of the length of

the interference, they are incompatible with the reasonable

relationship of proportionality that should exist between the general

interest and that of individuals.

The Commission considers that the question of whether the

applicant's failure to recover possession of his flat due to

legislation which came into force on 1 December 1984 constituted 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 ...".

a) As to the applicability of Article 6 (Art. 6) of the Convention

The Government submit that Article 6 (Art. 6) of the Convention

is not applicable to the proceedings relating to enforced evictions.

In this connection they argue that this part of the proceedings does

not involve any "determination of the applicant's rights" within the

meaning of Article 6 (Art. 6), but merely relate to the satisfaction

of rights already secured by court decisions. For this reason the

applicant's complaint relating to the excessive length of the

proceedings is incompatible with the terms of the Convention.

The applicant disputes the Government's allegations that

Article 6 (Art. 6) of the Convention is not applicable in the present

case.

The Commission considers that, having regard to the purpose of

the proceedings at issue, which was to settle the dispute between the

applicant and his tenant, Article 6 (Art. 6) is applicable in the

present case (see Eur. Court HR, Scollo v.Italy judgment of 28

September 1995, Series A no. 315-C, p. 55, para. 44).

b) As to the merits

The Government submit that it is impossible to refer to the

excessive length of proceedings when specific legislation has been

introduced to prevent a whole category of proceedings from being either

instituted or completed. In such cases the problem of is one of

ensuring that the rights secured by court decisions are fulfilled. In

the Government's opinion this question must be considered as part of

the complaint relating to Article 1 of Protocol No. 1 (P1-1).

The applicant contends that a length of over thirteen years

cannot be regarded as "reasonable" within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention.

The Commission has considered the submissions of the parties. It

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.

3. The applicant finally alleges that the said legislation protects

tenants to the detriment of landlords, which is clearly discriminatory.

He relies on Article 14 (Art. 14) of the Convention, which provides:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The Government have not submitted any observations on this point.

The Commission considers 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

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PALUMBO v. ITALY

PALUMBO v. ITALY

LEXI