SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 22534/93

by A.O.

against Italy

The European Court of Human Rights ( Second Section ) sitting on 7 October 1999 as a Chamber composed of

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

with 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 25 May 1993 by A.O. against Italy and registered on 26 August 1993 under file no. 22534/93;

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

Having regard to the observations submitted by the respondent Government on 17 March 1995 and 15 April 1996 and the observations in reply submitted by the applicant on 12 May 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a n Italian national, born in 1919 and living in San Leucio del Sannio (Italy).

A. Particular circumstances of the case

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

In 1969, the applicant let at a low rent, pursuant to a 1969 law on rent control ( equo canone ), an apartment he owned in Rome.

On 10 October 1986, the applicant served on the sitting tenant a notice to quit ( disdetta ) on expiry of the term of the lease on 31 December 1987; the tenant refused to vacate the premises.

In a writ served on the tenant on 28 November 1986, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate ( pretore ).

In a decision of 10 April 1987, the magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 September 1988. That decision was made enforceable on 10 April 1987.

On an unspecified date the applicant served notice ( precetto ) on the tenant requiring her to vacate the premises. He later served notice on the tenant informing her that the order for possession would be enforced by a bailiff ( significazione di sfratto ).

Thereafter, the bailiff made at least ten attempts (between 28 November 1989 and 15 November 1995) to recover possession; each attempt proved unsuccessful as, under the statutory provisions providing for the suspension or staggering of the evictions, the applicant was not entitled to police assistance.

On 15 November 1995 the bailiff evicted the tenant, who, being elderly and sick, was transferred by ambulance to a council flat which was allocated to her by the Municipality of Rome.

The applicant thus recovered possession of his flat on the same day.

B. Relevant domestic law

Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession.

Statutory extensions of tenancies

The last statutory extension to all but a small number of specifically excepted categories of subsisting leases was introduced by Law no. 392 of 27 July 1978 (“Law no. 392/78”) and was effective until 31 December 1982, 30 June 1983 or 31 December 1983, depending on the date of signature of the lease.

Suspension of enforcement

Under section 56 of Law no. 392/78, it is for the magistrate to fix the date for enforcement of the order for possession, having regard to both the tenant and the landlord’s circumstances and the grounds on which the lease was terminated. Enforcement cannot be deferred for more than six, or exceptionally twelve, months.

If the tenant fails to vacate the premises within the time allowed by the magistrate the landlord may issue enforcement proceedings.

Orders are made enforceable by the appending of an instruction by the magistrate “to any bailiff whose services are requested, any person empowered to enforce the order, state counsel, and any police officer to assist in the enforcement of this order when required by law”.

By Articles 608 and 513 of the Code of Civil Procedure, the bailiff’s task is to enjoin the tenant to vacate the premises and he may to that end seek police assistance “whenever necessary”. The bailiff reinstates the owner in his property and returns the keys to him. The police act as officers of the court.

Numerous provisions have established rules for the suspension of the enforcement of orders for possession ( ordinanze di sfratto ).

A first suspension was introduced by Legislative Decree no. 795 of 1 December 1984. Those provisions were incorporated in Legislative Decree no. 12 of 7 February 1985, which became Law no. 118/85 and covered the period from 1 December 1984 to 30 June 1985. That legislation also provided for the staggered resumption of evictions on 1 July, 30 September and 30 November 1985 and 31 January 1986, depending on when the decision that the lease had been terminated became enforceable.

Section 1 (3) of Law no. 118/85 laid down that enforcement would not be suspended if repossession had been ordered on the grounds of rent arrears. Similarly, no suspension could be ordered in certain cases, for example where the landlord required the property for his own use or for the use of his spouse, children or ascendants (Article 3, first sub-paragraph, number 2 of Legislative Decree no. 629 of 15 December 1979, which became Law no. 25 of 15 February 1980 (“Law no. 25/80”)).

A second suspension was introduced by Legislative Decree no. 708 of 29 October 1986, which became Law no. 899 of 23 December 1986 (“Law no. 899/86”). It covered the period from 29 October 1986 to 31 March 1987 and included the same exceptions as the preceding legislation.

Law no. 899 also established that the Prefect after consulting a committee that included representatives of both tenants and landlords ( commissione provinciale ), was responsible for determining the criteria for authorising police assistance in evicting tenants who refused to surrender possession,.

Section 3 (5 bis ) of Law no. 899/86 also provided that the eviction of any tenant entitled to subsidised housing was in all cases suspended until 31 December 1987.

A third suspension was introduced by Legislative Decree no. 26 of 8 February 1988, which became Law no. 108 of 8 April 1988. It initially covered the period from 8 February 1988 to 30 September 1988, which was subsequently extended until 31 December 1988.

A fourth suspension was introduced by Legislative Decree no. 551 of 30 December 1988, which became Law no. 61 of 21 February 1989 (“Law no. 61/89”), and covered the period up to 30 April 1989.

All the aforementioned laws and decrees contained additional provisions relating to the financing of subsidised housing and to housing benefits.

Staggering of evictions

Law no. 61/89 also provided that as from 1 May 1989 requests for police assistance in enforcing orders for possession would be dealt with in order of priority, as determined according to criteria established by the prefects after consultation with statutory prefectoral committees, whose members included the prefect, the mayor and representatives of both tenants and landlords. Among the cases having priority were those in which it was not possible for enforcement to be suspended. In particular, priority was given to landlords urgently requiring premises as accommodation for themselves, their spouse, children or ascendants. Landlords seeking priority treatment were required to make a statutory declaration.

As regards evictions in all other cases, provision was made for police assistance to be staggered over a maximum of forty-eight months from 1 January 1990.

The system whereby the enforcement of orders for possession was to be staggered was extended by a series of legislative decrees including the one from 31 December 1993 to 31 December 1995 (Legislative Decree no. 330/93).

COMPLAINT

The applicant complains under Article 1 of Protocol no. 1 about his prolonged impossibility to recover possession of his apartment through lack of police assistance.

PROCEDURE

The application was introduced on 25 May 1993 and registered on 26 August 1993.

On 11 January 1995 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 17 March 1995. The applicant replied on 12 May 1995.

On 13 March 1996, the parties were requested to submit their additional observations following the judgments of the Court in the cases Spadea and Scalabrino v. Italy and Scollo v. Italy, delivered on 28 September 1995. The respondent Government submitted their observations on 15 April 1996 while the applicant did not submit any observation.

On 28 May 1997 the Commission decided to adjourn the examination of the application, pending the examination of another similar case (no. 22774/93, Immobiliare Saffi v. Italy).

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

On 28 July 1999, the Court delivered its judgment in the Immobiliare Saffi case.

THE LAW

The applicant complains about his prolonged impossibility to recover possession of his apartment, owing to the implementation of emergency legislative provisions on residential property leases. He alleges a violation of Article 1 of Protocol no. 1 to the Convention, which provides as follows:

“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”.

The Government point out that the disputed measures were adopted in order to safeguard public order and to protect tenants with a low income and were therefore compatible with the general interest. The Government further maintain that a fair balance has been struck between the prevailing general interest and the applicant's property rights.

The applicant considers that the interference at issue is disproportionate in view of its length and of the financial burden resulting from the impossibility of raising the rent.

The Court considers the application raises complex and serious issues which require determination on the merits. It follows that it cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the application inadmissible has been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Erik Fribergh Christos Rozakis Registrar President