Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24236/94

by N., C., F. and A. G.

against Italy

The European Commission of Human Rights sitting in private on

4 December 1995, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, 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 9 November 1993

by N., C., F. and A. G. against Italy and registered on 31 May 1994

under file No. 24236/94;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Italian nationals born in 1959, 1961, 1965 and

1967 respectively and residing in Rome; they act through their father

by virtue of a proxy of 1989.

Before the Commission, the applicants are represented by Mr.

Alfredo Barbieri, a lawyer practising in Rome.

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

summarised as follows.

a) Particular circumstances of the case

By a contract dated 16 October 1989, the applicants purchased a

villa in Rome, which had been previously let to Albania and was now the

seat of the Albanian Mission in Italy.

The proceedings before the Rome magistrate

In a writ served on 22 February 1990, the applicants gave the

Albanian Embassy notice to quit and summoned it to appear before the

Rome magistrate in order to terminate the tenancy. The Embassy opposed

the eviction on the ground of its immunity from Italian jurisdiction.

By decision ("ordinanza di rilascio") of 17 July 1990, filed with

the Registry on 18 July 1990, the Rome magistrate provisionally

confirmed the eviction with effect from 31 January 1991, and set the

date of eviction at 30 September 1991. He held in particular that the

Albanian Embassy was to be considered as acting in its capacity of

private individual and therefore was subject to the Italian

jurisdiction.

The proceedings had to be pursued, within ninety days of the date

of the provisional decision, before the Rome court in order to have the

eviction confirmed and the damages suffered by the applicants as a

consequence of the delayed release of the villa assessed.

The Rome magistrate's decision became enforceable on 30 August

1990 and was served on the tenant on 12 September 1990.

The proceedings before the Rome court

By a writ issued on 5 October 1990 and served on 12 October 1990,

the applicants summoned the Albanian Embassy to appear before the Rome

court in order to have the eviction confirmed.

By another writ served on 4 March 1991, the applicants summoned

the Albanian Embassy to appear before the Rome court in order to have

the damages suffered as a result of the delayed release of the villa

assessed. An expert opinion was issued on the current market value of

the applicants' property and filed with the Registry on 1 June 1992.

The two sets of proceedings were joined on 24 March 1993.

By judgment of 10 November 1993, filed with the Registry on

26 November 1993, the Rome court confirmed the Rome magistrate's

decision of 17 July 1990, and awarded the applicants damages of some

1.500.000.000 Italian liras and costs. The judgment became final on

7 April 1994.

The execution proceedings

On 9 December 1991 and 24 February 1992 respectively, the

applicants served on the tenant the notice to vacate the premises and

the warning that, if it did not leave of its own accord, on 6 March

1992 the bailiff would enforce the order for possession. Nevertheless,

the bailiff refused to evict the Albanian Embassy.

On 11 May 1992 and 8 June 1992 respectively, the applicants

served on the tenant a second order to vacate the premises and the

warning that on 29 July 1992 the bailiff would enforce the eviction.

However, in June 1992 the bailiff informed the applicants' counsel that

he would not proceed to the eviction, on the ground of the immunity of

the Albanian Embassy from Italian jurisdiction and of the inviolability

of its premises.

On 17 June 1992, the applicants applied to the Rome magistrate,

requesting that the latter confirm that the bailiff ought to have

proceeded to the eviction and, in pursuance of Article 32 of the Vienna

Convention on diplomatic relations, ought to have entered the Embassy

and asked the Ambassador whether he intended to give up his immunity,

in which case the bailiff should have enforced the eviction order.

The hearing before the Magistrate, originally fixed to

28 September 1992, was first postponed to 13 January 1993 and finally

took place on 24 February 1993. At a further hearing on 7 April 1993,

the magistrate reserved his decision.

Meanwhile, on 6 October 1992, the applicants applied to the

Italian Ministry of Foreign Affairs. They claimed that Article 21 of

the Vienna Convention puts the Italian authorities under an obligation

to find a suitable alternative residence for the (evicted) Embassy and,

for these purposes, they pointed out that already in 1991 they had

indicated another suitable house in Rome, and that in any event another

suitable house was available in the same street. They never obtained

any reply.

By a decision of 20 July 1993, the magistrate dismissed the

applicants' application; he held that the eviction could not be

enforced in practice, in that enforcement proceedings commence with the

bailiff entering the premises, whereas in the present case this was not

feasible on the ground of the inviolability of the premises of a

diplomatic mission.

To date, the Albanian Embassy has not vacated the applicants'

property.

b) Relevant law

Article 21 of the Vienna Convention on diplomatic relations of 1961:

"1. The receiving State shall either facilitate the acquisition

on its territory, in accordance with its laws, by the sending

State of premises necessary for its mission, or assist the latter

in obtaining accommodation in some other way."

Article 22:

"1. The premises of the mission shall be inviolable. The agents

of the receiving State may not enter them, except with the

consent of the head of the mission.

2. The receiving State is under a special duty to take all

appropriate steps to protect the premises of the mission against

any intrusion or damage and to prevent any disturbance of the

peace of the mission or impairment of its dignity.

3. The premises of the mission, their furnishing and other

property thereon and the means of transport of the mission shall

be immune from search, requisition, attachment or execution."

Article 32:

"1. The immunity from jurisdiction of diplomatic agents (...)

may be waived by the sending State.

2. Waiver must always be express. (...)"

COMPLAINTS

The applicants complain under Article 6 para. 1 of the Convention

about the excessive length of the eviction proceedings.

They do not dispute that, in pursuance of the principle of

inviolability of the premises of the diplomatic missions, the order for

possession they obtained against Albania cannot be enforced, but allege

that the Italian authorities have failed to provide the Albanian

Embassy with a suitable alternative residence, in breach of Article 21

of the Vienna Convention on diplomatic relations.

THE LAW

The applicants complain under Article 6 para. 1 (Art. 6-1) about

the length of the proceedings concerning the eviction.

Although they acknowledge the principle of the inviolability of

the premises of diplomatic missions, and therefore accept that the

order for possession they obtained against the Albanian Embassy cannot

be enforced, they argue that the excessive length of the proceedings

is due to the failure of the Italian authorities to find for the

Embassy a suitable alternative accommodation instead of their property,

and that this is in breach of Article 21 of the Vienna Convention on

diplomatic relations.

The Commission first observes that Article 21 of the said

Convention clearly refers to relations between States and does not

confer any rights on the individuals to have such action taken. Nor can

such right be derived from any Italian legal provision.

In any case, the Commission considers that it is not competent

to examine whether this application discloses any appearance of a

violation of the European Convention on Human Rights or its Protocols.

In respect of disputes concerning the seats of diplomatic

missions, the Commission notes that international customary law accords

sending States immunity not only from execution, but also from

jurisdiction in the receiving State.

It further recalls that, according to the case-law of the

Convention organs, the right to access to court does not require that

courts shall have unlimited jurisdiction; in particular, Article 6

(Art. 6) of the Convention should be interpreted with due regard to

parliamentary and diplomatic immunities as traditionally recognised:

in such cases, the defendant is inaccessible and it is for the domestic

court to apply the corresponding limitation of its jurisdiction (cf.

No. 4451/70, Commission report of 1.6.73, p. 44 paras. 93 ss.; No.

3374/67, dec. 6.2.69, Collection of Decisions 29, p. 29).

Accordingly, the Commission considers that the particular

circumstances of the case would have justified a limitation of the

applicants' right of access to court.

It is true that in the present case the domestic courts did not

deny their jurisdiction and ruled on the merits of the applicants'

claims. Yet, since the applicants were not entitled under Article 6

(Art. 6) of the Convention to have access to court in the present case,

the Commission considers that they cannot invoke this provision to

complain about the length of the proceedings which actually took place,

Article 6 para. 1 (Art. 6-1) of the Convention not being applicable to

those proceedings.

It follows that the present application is incompatible ratione

materiae with the provisions of the Convention in accordance with

Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.K. KRÜGER) (S. TRECHSEL)

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N., C., F. AND A.G. v. ITALY

N., C., F. AND A.G. v. ITALY