Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23924/94

by C.A.R. Srl

against Italy

The European Commission of Human Rights (First Chamber) sitting in

private on 27 June 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

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 22 September 1993

by C.A.R. Srl against Italy and registered on 19 April 1994 under file

No. 23924/94 ;

Having regard to the Commission's decision of 6 September 1995

to communicate the complaint related to the impossibility for the

applicant company to recover possession of its premises;

Having regard to the observations submitted by the respondent

Government on 8 November 1995 and the observations in reply submitted

by the applicant company on 2 January 1996;

Having regard to the additional observations submitted by the

respondent Government on 1 April 1996 and by the applicant company on

2 April 1996;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian building society having its

registered office in Rome and acting through its legal representative

Mr Stefano Cecchi.

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

summarised as follows.

By contract of 19 January 1989, the applicant company let 26

villas and 15 garages it owned in Aprilia (Latina) to the company "X".

The latter allowed a group of Somalis to settle in the buildings.

On 11 October 1990, an indefinite number of Somali refugees

occupied the applicant's buildings.

In November 1990, the company "X" ceased to pay the rent.

a) The eviction proceedings before the Rome Magistrate

On 27 November 1990, the applicant company brought an action

before the Rome magistrate in order to evict "X" on the grounds of non

payment of rent; by decision ("convalida di sfratto per morosità") of

9 January 1991, the magistrate ordered the eviction of the tenant with

the assistance of the police. The eviction was fixed to 20 January

1991. On 18 January 1991, the applicant served on the tenant the order

("precetto") to vacate the area.

However, the Somali refugees occupying the applicant's property

refused to vacate the premises.

Despite numerous requests to the Latina Prefect, the applicant

company was not granted the assistance of the police, as the solution

to its problem was deemed to be of general interest. Numerous attempts

by a bailiff (15 April, 27 May, 17 October, 14 November 1991, 14

February, 18 May, 8 September, 8 October and 11 December 92) to evict

the Somali refugees were therefore unsuccessful.

b) The proceedings before the Latina Public Prosecutor

On 9 January 1993, the applicant filed a criminal complaint with

the Latina Public Prosecutor against the Somali refugees occupying its

premises without any legal title.

The Public Prosecutor carried out preliminary investigations on

the situation of the Somali refugees; in particular, he contacted the

local administrative authorities in order to find out what had been or

was being done to find an alternative suitable accommodation for the

refugees and to help them integrate with the local community.

On 22 May 1993, the Public Prosecutor requested that the

preliminary investigation against the Somali refugees be discontinued.

On 22 June 1993, the applicant opposed the Public Prosecutor's

request to drop the charges against the refugees.

By decree of 15 November 1993, the preliminary investigations

against the Somali refugees were discontinued; the Latina investigating

judge held that the refugees had not unlawfully occupied the

applicant's buildings, but "had been taken there in order to receive

assistance" ("i somali vi venivano fatti affluire onde ricevere

assistenza"). He therefore considered that it was a civil rather than

a criminal matter, namely a case of eviction of tenants that had to be

settled by civil judges.

c) The proceedings before the Latina Magistrate

On 8 February 1993 the applicant applied to the Latina

Magistrate, pointing out that the over 300 refugees refused to vacate

its buildings despite an enforceable decision, and that its property

was deteriorating. It therefore requested the assistance of the police

in evicting the occupants from its premises.

The Latina Magistrate contacted the Lazio administrative

authorities that were responsible for the presence of the Somali

refugees in the region. The local authorities committed themselves to

find a suitable alternative accommodation for the refugees within a

short period of time.

By decision of 25 February 1993, the Magistrate considered that

the solution to the applicant's problem was of general interest and

raised issues of public order, and therefore reserved any decision in

this respect, awaiting the intervention of the regional administrative

authorities "provided that the latter intervention takes place within

a reasonable period of time".

On 11 March 1993, the Magistrate's decision was notified to the

regional administrative authorities.

On 4 June 1993, no action having been taken, the applicant once

again applied to the Latina Magistrate and renewed its request for the

assistance of the police.

By decision of 30 June 1993, the Latina Magistrate observed that

the case could either be considered as an eviction of tenants - and the

competent authority to grant the assistance of the police was thus the

Latina Prefect - or as an unlawful occupation of property by the Somali

refugees - and the competent authority to settle the matter was the

Public Prosecutor. The Magistrate therefore forwarded the applicant's

request to both the Latina Prefect and the Latina Public Prosecutor's

Office.

Meanwhile, on 25 June 1992 the Aprilia town council paid the gas

bill, the water bill and the electricity bill for the refugees.

On 16 March 1993, the Lazio regional authorities paid the

electricity bill for the refugees.

On 22 October 1993, the applicant served on the company "X" a

second order to vacate the premises.

On 3 February 1994, the occupants vacated the buildings following

the intervention of the Lazio Councillorship of local Public Bodies and

Immigration ("Assessorato agli enti locali e all'immigrazione della

Regione Lazio"), that moved them to certain buildings in Anzio.

On 12 February 1994, the applicant, with the assistance of a

bailiff, obtained the possession of its buildings.

COMPLAINTS

1. The applicant company complains that, despite an enforceable

judgment, it has been unable to evict the persons illegally occupying

its buildings for more than three years.

It further complains that it has not received any compensation

from the administrative authorities for the significant financial

damages he suffered in terms of both unpaid rent and damages to the

property; it argues that it was charged the costs of the local

authorities' policy in the social field.

It invokes Article 1 of Protocol no. 1 to the Convention.

2. The applicant company finally complains about the length of the

proceedings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 September 1993 and

registered on 19 April 1994.

On 6 September 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48 para. 2

(b) of the Rules of Procedure as to the complaint related to the

impossibility of recovering possession of the property.

The Government's written observations were submitted on

8 November 1995. The applicant company replied on 2 January 1996.

The Government and the applicant company submitted additional

observations on 1 April and on 2 April 1996 respectively.

THE LAW

1. The applicant company complains about the inaction of the Italian

authorities with respect to the prolonged occupation sine titulo of its

property by a group of Somali refugees and about the lack of

compensation for the financial prejudice it suffered in this

connection.

It invokes Article 1 of Protocol no. 1 (P1-1), according to

which:

"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 respondent Government submit that the applicant company has

not exhausted domestic remedies; they submit that the applicant company

was and is wrong in considering that the present case concerns an

eviction of tenants, because the order for possession directed against

the original tenant could not be enforced against "squatters", namely

occupants sine titulo, as they could not be considered as subtenants.

According to the Government, the applicant company would have had to

institute further civil proceedings against the Somali refugees with

a view to obtaining an acknowledgment of their status of illegal

occupants and subsequently an order for possession against them.

The applicant company disputes the Government's objection. It

claims that the Magistrate's order for possession of 9 January 1991 was

enforceable against any occupant of its property, illegal occupants

included. In any event, it claims that the Somali refugees had been

taken to its property by its tenant "X" in order to receive assistance:

they had thus a sort of right of occupancy and were not "squatters" -

which was clearly stated by the judge for the Preliminary hearing of

Latina in his decision of 15 November 1993. They could therefore be

evicted on the basis of the order for possession issued against "X".

The Commission first observes that the enforcement proceedings

against the Somali refugees were commenced on the basis of an order for

possession directed against the original tenant. It further observes

that on the one hand, the civil judges took for granted that the Somali

refugees were illegal occupants, whereas on the other hand the criminal

judges held that they were not.

However, the Commission considers it unnecessary to decide the

question whether the Somali refugees were squatters or not or whether

the order for possession could or could not be legally enforced against

them.

The Commission observes in fact that the enforceability of the

order for possession of 9 January 1991 against the Somali refugees was

never disputed by the Italian authorities in the course of the various

civil and criminal proceedings instituted by the applicant company.

Even assuming that the refugees were in fact illegal occupants and that

the order for possession directed against the applicant company's

tenant could not be enforced against them, the Commission observes that

the reason for the non-enforcement of the order for possession was of

public order nature, namely the prevention of possible disorders.

The Commission considers that the Government have failed to

demonstrate that such issues of public order would have been handled

in a different manner, had the applicant company exhausted the remedy

indicated by the Government and therefore obtained another order for

possession directly against the Somali refugees.

As regards the possibility for the applicant company to be

compensated for the financial prejudice it suffered in terms of both

unpaid rent and damages to the property, the Commission recalls that

it is its normal practice, where an application has been communicated

to the respondent Government, in part or as a whole, not to declare the

complaint concerned inadmissible for failure to exhaust domestic

remedies unless this matter has been raised by the Government in thier

observations (see for example nos. 24541/94, dec. 26.2.96, and

20251/92, dec. 5.3.96, unpublished). In the present case, the Italian

Government failed to indicate any remedy concerning the above financial

prejudice.

In these circumstances, the Commission finds that the application

cannot be declared inadmissible for non-exhaustion of domestic

remedies.

b) As to the merits

As regards the substance of the case, the Government submit that

the interference with the applicant company's peaceful enjoyment of its

possessions was in accordance with the general interest and not long

enough to place an excessive burden on the applicant company.

The applicant company refers to the significant financial damages

it has suffered and subsequently disputes the Government's allegations

that the interference with its property rights does not amount to a

breach of Article 1 of Protocol no. 1 (P1-1).

The Commission has considered the submissions of the parties. It

finds that the complaints raise 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 the complaints cannot be

dismisses as manifestly ill-founded within the meaning of Article 27

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

them inadmissible has been established.

2. The applicant company finally complains about the length of the

proceedings. The period to be taken into consideration began on 27

November 1990, when the original tenant was summoned to appear before

the Rome magistrate, and ended on 12 February 1994, when the applicant

company reobtained possession of its premises (see Eur. Court H.R.,

Scollo judgment of 28 September 1995, Series A no. 315-C); the period

under consideration is therefore three years, two months and twenty-

three days.

Article 6 (Art. 6) of the Convention, in so far as relevant,

reads 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 Commission recalls that:

"The reasonableness of the length of the proceedings is to be

assessed in the light of the particular circumstances of the

case, regard being had to the criteria laid down in the Court's

case-law, in particular the complexity of the case, the

applicant's conduct and that of the competent authorities ..."

(Eur. Court H.R., Kemmache judgment of 27 November 1991, Series A

no. 218, p. 27, para. 60).

The Commission considers that, although the proceedings at issue

were not factually complex, they indeed required the solution of an

undoubtedly complex practical and administrative issue, namely finding

an alternative accommodation for the numerous Somali refugees occupying

the applicant company's premises, which involved issues of public order

nature.

The Commission considers that, given the complexity of the case,

the proceedings in question, having lasted almost three years and three

months, are not sufficiently long to conclude that the "reasonable

time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention has

been exceeded in the present case.

It follows that this part of the application is manifestly ill-

founded and must be rejected in pursuance of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE the complaints related to the impossibility

of reobtaining possession of the premises, without prejudging the

merits of the case;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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