SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36679/97 by Gian Marco CASELLI against Italy

The European Court of Human Rights ( Second Section ) sitting on 20 January 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr B. Conforti, Mr P. Lorenzen, Mrs M. Tsatsa-Nikolovska, Mr A.B. Baka, Mr E. Levits,

Mr A. Kovler, judges ,

and Mr E. Fribergh, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 April 1997 by Gian Marco Caselli against Italy and registered on 24 June 1997 under file no. 36679/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national, born in 1959 and living in Florence.

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

A. Particular circumstances of the case

G.S and R.S. were the owners of an apartment in Florence, which they had let to E.Z.

In a writ served on the tenant on 22 June 1987 they communicated their intention to terminate the lease and summoned him to appear before the Florence Magistrate.

By a decision of 13 July 1987, which was made enforceable on 18 March 1988 , the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 31 December 1988. Enforcement proceedings were subsequently started.

On 30 December 1992, the applicant became the owner of the apartment.

On 12 October 1994, a notice was served on the tenant requiring him to vacate the premises.

On 25 November 1994, a notice was served on the tenant informing him that the order for possession would be enforced by a bailiff on 13 December 1994.

Between 13 December 1994 and 30 May 1996, the bailiff made 4 attempts to recover possession, on 13 December 1994 ,14 June 1995, 9 January 1996 and 30 May 1996, but to no avail, as the applicant was never granted the assistance of the police enforcing the order for possession.

In the meantime, on 19 January 1996, the applicant had made a statutory declaration that he urgently required the premises as accommodation for himself.

On 8 October 1996, the applicant and the tenant reached an agreement, as a result of which, on 30 October 1996, the tenant vacated the premises.

B. Relevant domestic law

The relevant domestic law is described in the Immobiliare Saffi v. Italy judgment of 28 July 1999, to be published in the Court’s official reports, §§ 18-35.

COMPLAINTS

1. The applicant complains about his prolonged inability - through lack of police assistance - to recover possession of his apartment.

2. The applicant further complains about the duration of the eviction proceedings.

THE LAW

1 . The applicant complains that the impossibility for him to recover possession of his apartment infringed his rights under Article 1 of Protocol no. 1 to the Convention, according to which:

“Every natural or 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.”

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 judgment, cited above, §§ 46 and 48, 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 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 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 observes that the applicant acquired title over the property on 30 December 1992, he then did not take any steps to recover possession of the apartment for almost two years. After serving notice on 12 October 1994, the applicant was made to wait approximately two years, of which eight months after he had made the declaration of urgent necessity. He then reached an agreement with the tenant and recovered possession of his apartment.

The Court does not find that the restriction on the applicant’s use of his flat, which restriction lasted less than two years, imposed on him 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).

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 applicant further complains that the length of the enforcement proceedings was excessive and in breach of Article 6 § 1 of the Convention, whose pertinent part 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 Court considers that this complaint should be examined in connection with the more general right to a court (see the Immobiliare Saffi 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 judgment cited above, § 69).

In the present case, the Court notes that after the applicant sought the enforcement of the eviction order and before he reached an agreement with the tenant, he had to wait for less than two years. Having in mind the public order problems which Italy admittedly has had to face in the field of housing, the Court does not consider that this delay was so long as to deprive the order for possession of all useful effect or of undermining its substance (see, a contrario , the Immobiliare Saffi 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, that the length of the proceedings at issue was not unreasonably long (see , a contrario , the Scollo 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.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Erik Fribergh Christos Rozakis Registrar President