AS TO THE ADMISSIBILITY OF
Application no. 55161/00
by Maurizio CIMA
The European Court of Human Rights (First Section), sitting on 8 January 2004 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr E. Levits,
Mr A. Kovler,
Mr V. Zagrebelsky,
Mrs E. Steiner, judges,
and Mr S. Nielsen, Deputy Section Registrar,
Having regard to the above application lodged on 6 July 1999,
Having deliberated, decides as follows:
The applicant, Mr Maurizio Cima, is an Italian national who was born in 1945 and lives in Rome. He was represented before the Court by Mrs M.G. Morandi Pelosi and Mr A. Morandi, lawyers practising in Rome. The respondent Government were represented by their Agents, Mr U. Leanza and Mr I.M. Braguglia, and by their successive co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli.
The facts of the case, as submitted by the parties, may be summarised as follows.
A.C., the applicant’s aunt, is the owner of an apartment in Rome, which she had let to C.R.
In a registered letter of 10 May 1985, A.C. informed the tenant that she intended to terminate the lease on expiry of the term on 30 April 1986 and asked her to vacate the premises by that date.
In a writ served on the tenant on 10 July 1985, A.C. reiterated her intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.
By a decision of 14 November 1985, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 May 1986.
On 29 May 1986, A.C. served notice on the tenant requiring her to vacate the premises.
On 24 July 1986, she informed the tenant that the order for possession would be enforced by a bailiff on 5 August 1986.
Between 5 August 1986 and 20 November 1998, the bailiff made thirty-six attempts to recover possession.
Each attempt proved unsuccessful, as A.C. was not entitled to police assistance in enforcing the order for possession.
In the meanwhile, on 9 November 1998, A.C. died and her nephew, the applicant, inherited the apartment.
On 22 July 1999, pursuant to Law no. 431/98, the tenant asked for a suspension of the enforcement proceedings.
After that, on an unspecified day of 1999, the applicant became party to the national proceedings.
The enforcement proceedings were suspended first until 30 May 2000 and then until 16 November 2000.
On 30 January 2001, the tenant spontaneously left the premises and the applicant recovered possession of the apartment.
The applicant complains under Article 1 of Protocol No. 1 to the Convention that his inability to recover possession of his apartment amounted to a violation of the right to property.
The applicant further complains under Article 6 of the Convention about the duration of the eviction proceedings and about the denial of his right of access to a court.
The Government objected that the applicant had failed to exhaust domestic remedies as he had not sought judicial review in the administrative courts of the refusal to provide police assistance or lodged an application under Article 617 of the Code of Civil Procedure (“CCP”), which deals with incidents arising on enforcement, challenging the legitimacy of the bailiff’s decisions to defer the eviction.
The Court notes that it has previously had occasion to dismiss the first limb of that preliminary objection in the Immobiliare Saffi case (Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 40-42, ECHR 1999-V). It sees no reason to depart from that finding and therefore dismisses that objection.
The Court notes that although the applicant could have applied to the judge responsible for the execution of judgments challenging the bailiff’s decisions had they been unlawful, in the instant case the bailiff had not acted unlawfully but could not enforce the eviction order without police assistance. Accordingly, since no objection could be lodged against a decision not to provide police assistance, the procedure under Article 617 cannot be regarded as an effective remedy. Furthermore, the Government have not cited any decisions of the Italian courts to show otherwise. The Government’s objection must therefore be dismissed.
In their observations, which the Registry received on 30 October 2002, the Government argued that the applicant had not exhausted domestic remedies. They maintained that since the Court of Cassation’s judgment of 18 June 2002, which was lodged with the registry of that court on 26 July 2002, it was clear that a remedy under the Pinto Act was also available in respect of eviction proceedings, with the result that anyone considering himself a victim of a violation of Article 6 § 1 on account of the inordinate length of such proceedings could seek compensation from the relevant court of appeal. That applied to any complaint under Article 6 § 1. The Government submitted that the objection of a failure to exhaust domestic remedies also covered the complaint under Article 1 of Protocol No. 1, as the matter complained of was a consequence of the length of proceedings.
The applicant contended that this remedy was optional rather than compulsory since the term used in section 6 of the Act was “entitled” and not “must”. He relied on the tempus regit actum principle to dispute the retroactive application of the Act. He pointed out that prior to the Court of Cassation’s judgment, the Italian authorities had affirmed that the Pinto Act did not apply to eviction proceedings; indeed, they had made representations to that effect to the Court of Cassation.
The Court dismissed a similar objection in the Mascolo case, holding that the applicant was absolved from the obligation to exhaust domestic remedies in the special circumstances of that case (Mascolo v. Italy (dec.), no. 68792/01, 16 October 2003). The Court sees no reason to depart from that finding here and the Government’s objection must, therefore, be dismissed.
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 applicant’s 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.
In any event, the Government stress that following the entry into force of Law no. 431 of 9 December 1998, the Prefect is no longer competent to determine the order of priority for the enforcement of the evictions. The date of enforcement should now be set by the District Court.
The Court considers that the application raises complex and serious issues which require a determination on the merits. It follows that it cannot be considered 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.
Søren Nielsen Christos Rozakis
Deputy Registrar President
CIMA v. ITALY DECISION
CIMA v. ITALY DECISION