SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42431/98 by A.P. and Others against Italy

The European Court of Human Rights (Second Section) , sitting on 14 June 2001 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mr G. Bonello , Mrs V. Strážnická , Mr M. Fischbach , Mrs M. Tsatsa-Nikolovska , Mr V. Zagrebelsky , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 7 July 1998 and registered on 27 July 1998,

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

Having deliberated, decides as follows:

THE FACTS

The applicants, A.P., N.E.D.M. and N.V.D.M., are Italian nationals , born in 1945, 1972 and 1974 respectively and living in Milan. They are represented before the Court by Mr F. Grassia, a lawyer practising in Milan.

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

C.D.M. was the owner of an apartment in Milan, which he had let to I.L.

Since 1 April 1996, I.L. fell in rent arrears and in a writ served on her on 10 May 1996, C.D.M. informed her of his intention to terminate the lease and summoned her to appear before the Milan Magistrate.

By a decision of 5 December 1996, which was made enforceable on 8 January 1997, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 January 1997.

On 18 February 1997, C.D.M. served notice on the tenant requiring her to vacate the premises.

On 14 March 1997, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 11 April 1997.

Between 11 April 1997 and 12 February 1998, the bailiff made five attempts to recover possession.

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

According to Law no.61/89, on 20 May 1997 and on 5 and 14 June 1997, C.D.M. made three requests to the Prefectoral Committee for police assistance in enforcing the order for possession, but they were never granted.

On 26 August 1997, C.D.M. (the owner) died, his spouse and his daughters (the applicants) inherited the apartment and pursued the enforcement proceedings for non-payment of rent.

On 24 November 1997, A.P. (the spouse) made another request for police assistance

On 25 June 1998, the applicants recovered possession of their apartment.

COMPLAINTS

1. The applicants complain under Article 1 of Protocol No. 1 about their inability to recover possession of their apartment.

2. The applicants further complain under Article 6 § 1 of the Convention about the duration of the eviction proceedings.

THE LAW

1. The applicants complain that their impossibility of recovering possession of their apartment infringed their rights under Article 1 of Protocol No. 1 to the Convention.

The Court considers that the interference complained of amounted to 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 judgment [GC], no. 22774/93, §§ 46 and 48, ECHR 1999-V, and the Spadea and Scalabrino v. Italy judgment of 28 September 1995, Series A n° 315-B, p. 26, §§ 28 and 31-32).

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 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 observes that the staggering of police assistance was indeed applicable in the present case, and that the applicants were entitled to priority in the grant of police assistance, the eviction being on the ground of rent arrears.

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, the applicants were treated in such a way that a balance was maintained between the relevant interests.

The Court notes that, under the applicable provisions, the applicants were entitled to be granted police assistance with priority, but not immediately. The date originally set for the eviction was 11 April 1997 and the actual eviction took place on 25 June 1998. The applicants thus had to wait one year and two months.

Though the applicants were entitled to rent arrears, the Court observes that they were able to recover these sums through civil proceedings.

The Court does not find that the restriction on the applicants’ use of their apartment imposed on them an individual and excessive burden, contrary to the requirements of the second paragraph of Article 1 of Protocol No. 1 (see the Spadea and Scalabrino judgment cited above, § 40).

In these circumstances, the Court concludes that this complaint is manifestly ill-founded within the meaning of Article 35 §§ 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

2. The applicants further complain that the length of the enforcement proceedings was excessive and in breach of Article 6 § 1 of the Convention.

The Court considers that this complaint should be examined in connection with the more general right to a court (see the Immobiliare Saffi v. Italy judgment 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 the Immobiliare Saffi v. Italy judgment cited above, § 69).

In the present case, the Court notes that the eviction was delayed for approximately one year and two months. Having in mind the public order problems which Italy admittedly has had to face in the field of housing and in the light of the necessity of protecting the tenant’s interests, the Court does not consider that this delay was so long as to deprive the order for possession issued by the Magistrate of all useful effect or of undermining its substance (see the Immobiliare Saffi v. Italy judgment cited above, § 73).

Further, the Court considers, bearing in mind the practical difficulties raised by the enforcement of a very large number of evictions as well as of the need to protect the tenant’s interests, that the length of the proceedings at issue was not unreasonably long (see , a contrario , the Scollo v. Italy judgment of 28 September 1995, Series A n° 315-C, § 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.

For these reasons, the Court unanimously

Declares the application inadmissible.

Erik Fribergh Christos Rozakis Registrar President