FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications no. 40672/98, 40680/98, 40681/98, 40682/98 and 40884/98 by Francesco and Giuseppe GIANTURCO against Italy

The European Court of Human Rights (First Section) , sitting on 5 September 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr P. Lorenzen , Mrs N. Vajić , Mr E. Levits , Mr A. Kovler , Mr V. Zagrebelsky , judges ,

and Mr E. Fribergh , Section Registrar ,

Having regard to the above applications lodged respectively with the European Commission of Human Rights on 6, 11, 18 and 23 March 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the applications was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are two Italian nationals, born respectively in 1927 and 1928 and living in Naples. Th ey are represented before the Court by Mr E. Baldi , a lawyer practising in Naples.

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

The applicants are the owners of five apartments in Arzano (Naples), which they had let respectively to L.U., L.C., C.S. , G.R. and G.F.

1) Application no. 40682/98

In a writ served on the tenant on 24 November 1986, the applicants informed the tenant of their intention to terminate the lease on expiry of the term on 31 December 1987 and summoned him to appear before the Casoria (Naples) Magistrate.

By a decision of 13 February 1987, which was made enforceable on the same day, the Casoria Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1989.

On 31 January 1994, the applicants served notice on the tenant requiring him to vacate the premises.

On 23 April 1994, they served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 28 April 1994.

Between 28 April 1994 and 8 March 1998, the bailiff made thirteen attempts to recover possession.

Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.

In September 1998, the tenant entered into a new lease.

2) Application no. 40672/98

In a writ served on the tenant on 24 November 1986, the applicants informed the tenant of their intention to terminate the lease on expiry of the term on 31 December 1987 and summoned him to appear before the Casoria (Naples) Magistrate.

By a decision of 20 February 1987, which was made enforceable on the same day, the Casoria Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1989.

On 28 January 1994, the applicants served notice on the tenant requiring him to vacate the premises.

On 23 April 1994, they served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 28 April 1994.

Between 28 April 1994 and 8 March 1999, the bailiff made twelve attempts to recover possession.

Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.

On 3 June 2001, the tenant spontaneously left the premises and the applicants recovered possession of their apartment.

3) Application no. 40680/98

In a writ served on the tenant on 24 November 1986, the applicants informed the tenant of their intention to terminate the lease on expiry of the term on 31 December 1987 and summoned him to appear before the Casoria (Naples) Magistrate.

By a decision of 13 February 1987, which was made enforceable on the same day, the Casoria Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1989.

On 28 January 1994, the applicants served notice on the tenant requiring him to vacate the premises.

On 23 April 1994, they served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 28 April 1994.

Between 28 April 1994 and 8 March 1999, the bailiff made thirteen attempts to recover possession.

Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.

On 4 September 1999, the tenant entered into a new lease.

4) Application no. 40681/98

In a writ served on the tenant on 24 November 1986, the applicants informed the tenant of their intention to terminate the lease on expiry of the term on 31 December 1987 and summoned him to appear before the Casoria (Naples) Magistrate.

By a decision of 13 February 1987, which was made enforceable on the same day, the Casoria Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1989.

On 28 January 1994, the applicants served notice on the tenant requiring him to vacate the premises.

On 23 April 1994, they served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 28 April 1994.

Between 28 April 1994 and 8 March 1999, the bailiff made thirteen attempts to recover possession.

Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.

On an unspecified date of May 2000, the applicants recovered possession of the apartment.

5) Application no. 40884/98

In a writ served on the tenant on 24 November 1986, the applicants informed the tenant of their intention to terminate the lease on expiry of the term on 31 December 1987 and summoned her to appear before the Casoria (Naples) Magistrate.

By a decision of 6 February 1987, which was made enforceable on the same day, the Casoria Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1988.

On 31 January 1994, the applicants served notice on the tenant requiring her to vacate the premises.

On 23 April 1994, they served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 28 April 1994.

Between 28 April 1994 and 8 March 1999, the bailiff made thirteen attempts to recover possession.

Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.

On an unspecified date of February 2001, the applicants recovered possession of the apartment.

THE LAW

1. The applicants complain under Article 1 of Protocol No. 1 to the Convention that their inability to recover possession of their apartments amounted to a violation of the right to property.

2. The applicants further complain under Article 6 of the Convention about the duration of the eviction proceedings.

(a) Application no. 40682/98

1. The Government maintain that the measures in question amount to a control of the use of property which pursues the legitimate aim of avoiding the social tensions and troubles to public order that would occur if a considerable number of orders for possession were to be enforced simultaneously. In their opinion, the interference with the applicants’ property rights was not disproportionate; therefore, there is no violation of Article 1 of Protocol No. 1 and the application should be declared inadmissible.

As to the length of the enforcement proceedings, the Government submit that the delay in granting police assistance is justified on grounds of the order of priorities established according to public-safety requirements.

The Court considers that the interference complained of amounted to the control of the use of property within the meaning of the second paragraph of Article 1, and pursued a legitimate aim in the general interest, as required by that provision (see the Immobiliare Saffi v. Italy [GC], no. 22774/93, 28 July 1999, §§ 46 and 48, ECHR-V, and the Scollo v. Italy judgment of 28 September 1995, Series A n° 315-C, p. 26, §§ 30-31) .

The Court recalls that an interference “must strike a “fair balance” between the demands of the general interest and the requirements of the protection of the individual’s fundamental rights. The concern to achieve this balance is reflected in the structure of Article 1 as a whole, and therefore also in its second paragraph. There must be a reasonable relationship of proportionality between the means employed and the aim pursued. In determining whether this requirement is met, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question. In spheres such as housing, which plays a central role in the welfare and economic policies of modern societies , the Court will respect the legislature’s judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation” (see the Immobiliare Saffi v. Italy judgment cited above, § 49).

The Court considers that, in principle, the Italian system of staggering of the enforcement of court orders is not in itself open to criticism, having regard in particular to the margin of appreciation permitted under the second paragraph of Article 1. However, such a system carries with it the risk of imposing on landlords an excessive burden in terms of their ability to dispose of their property and must accordingly provide certain procedural safeguards so as to ensure that the operation of the system and its impact on a landlord’s property rights are neither arbitrary nor unforeseeable (see, mutatis mutandis , the Immobiliare Saffi v. Italy judgment cited above, § 54).

The Court must thus ascertain whether, in the instant case, a balance was maintained between the relevant interests (see the Scollo v. Italy judgment cited above, § 37).

The Court finds that the restriction on the applicants’ use of their flat, which restriction lasted four years and four months did not impose on them an individual and excessive burden, contrary to the requirements of the second paragraph of Article 1 of Protocol No. 1 (see, a contrario, the Scollo judgment, cited above, § 40; see also, mutatis mutandis , Caselli v. Italy (dec.), no. 36679/97, 20 January 2000, unpublished).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. As to the length of the enforcement proceedings, the Government submit that the delay in granting police assistance is justified on grounds of the order of priorities established according to public-safety requirements. The length of the proceedings at issue was not unreasonably long, therefore the application should be declared inadmissible.

The Court considers that this complaint should be examined in connection with the more general right to a court (see Immobiliare Saffi , cited above, § 61).

The right to a court as guaranteed by Article 6 also protects the implementation of final, binding judicial decisions, which, in States that accept the rule of law, cannot remain inoperative to the detriment of one party (see, mutatis mutandis , the Hornsby v. Greece judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, p. 510, § 40).

Accordingly, the execution of a judicial decision cannot be unduly delayed. However, a stay of execution of a judicial decision for such period as is strictly necessary to enable a satisfactory solution to be found to public-order problems may be justified in exceptional circumstances (see Immobiliare Saffi , cited above, § 69).

In the present case, the Court notes that after the applicants sought the enforcement of the eviction order and before they recovered possession of their apartments, they had to wait for four years and two months. The applicants did not want to recover possession of the apartment as accommodations for themselves but only to increase the lease. Having in mind the public order problems which Italy admittedly has had to face in the field of housing, the Court considers that this delay was not so long as to deprive the order for possession of all useful effect or of undermining its substance (see, a contrario , the Immobiliare Saffi v. Italy judgment cited above, § 73; see also, mutatis mutandis , Caselli v. Italy (dec.), no. 36679/97, 20 January 2000, unpublished).

Further, the Court considers, bearing in mind the practical difficulties raised by the enforcement of a very large number of evictions, that the length of the proceedings at issue was not unreasonably long (see , a contrario , the Scollo v. Italy judgment cited above, § 44 in fine ).

It follows that this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

(b) Applications nos.40680/98, 40681/98, 40672/98 and 40884/98

The Government argue that the applicants have not exhausted domestic remedies on the grounds that they failed to challenge the refusal of police assistance before the administrative courts.

The Court recalls that it has already dismissed this objection in the Immobiliare Saffi case (see the judgment Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 40-42, ECHR 1999-V). The Court sees no reason to depart from its previous finding. This objection should therefore be rejected.

The Government maintain that the measures in question amount to a control of the use of property which pursues the legitimate aim of avoiding the social tensions and troubles to public order that would occur if a considerable number of orders for possession were to be enforced simultaneously. In their opinion, the interference with the applicants’ property rights was not disproportionate; therefore, there is no violation of Article 1 of Protocol No. 1.

As to the length of the enforcement proceedings, the Government submit that the delay in granting police assistance is justified on grounds of the order of priorities established according to public-safety requirements.

The applicants argue that the refusal of the administration to enforce the order issued by the magistrate has interfered with the power of the judiciary.

The Court considers that the applications raise complex and serious issues, which require a determination on the merits. It follows that they cannot be considered manifestly ill founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the applications inadmissible has been established.

For these reasons, the Court unanimously

Declares application no. 40682/98 inadmissible ;

Declares applications nos. 40680/98, 40681/98, 40672/98 and 40884/98 admissible, without prejudging the merits of the cases.

Erik Fribergh Christos Rozakis Registrar President