AS TO THE ADMISSIBILITY OF
Application no. 63927/00
by Alberto RUSSO and Others
The European Court of Human Rights (First Section), sitting on 12 February 2004 as a Chamber composed of:
Mr P. Lorenzen, President,
Mr E. Levits,
Mrs S. Botoucharova,
Mr A. Kovler,
Mr V. Zagrebelsky,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 11 October 2000,
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 applicants, Mr Alberto Russo, Mrs Carmela Russo, Mr Giancarlo Russo, Mrs Teresa Russo and Mrs Maria Russo are five Italian nationals. They are represented before the Court by Mr G. de Martino, a lawyer and justice of the peace (giudice di pace) practising in Sorrento (Naples).
The respondent Government were initrially represented by their Agents, respectively Mr U. Leanza and Mr I.M. Braguglia, and then by their co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are the owners of a flat in Sorrento, which they had let to C.S.
In a registered letter of 23 June 1987, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 31 December 1987 and asked her to vacate the premises by that date.
In a writ served on the tenant on 24 February 1988, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Sorrento Magistrate.
By a decision (ordinanza) of 2 March 1988, which was immediately enforceable, the Sorrento Magistrate provisionally ordered that the premises be vacated by 30 June 1989 and adjourned the case to 5 October 1988 in order to examine the objections of the tenant.
At the hearing of 5 October 1988, the representative of the applicants requested that a date be set for a hearing so that he could make his submissions. The case was adjourned to 8 March 1989.
At the hearing of 8 March 1989, the representatives of the parties both requested that a date should be set for a hearing so that they could make their submissions. The case was adjourned to 24 January 1990.
At the hearing of 24 January 1990, the representatives of the parties both asked for time. The case was adjourned to 21 May 1990.
At the hearing of 21 May 1990, the representative of the tenant asked for time. The case was adjourned to 5 November 1990.
At the hearing of 5 November 1990, the representative of the parties both filed their submissions. The case was adjourned to 7 December 1990.
At the hearing of 7 December 1990, the representative of the applicant asked for time. The case was adjourned to 22 February 1991 when the Sorrento Magistrate considered the case to be ready for a decision.
By a decision of 30 May 1991, which was made enforceable on 12 December 1995, the Sorrento Magistrate upheld the validity of the notice to quit, declared that the decision (ordinanza) of 2 March 1988 was absorbed and ordered that the premises be vacated 12 months after the publication of the decision.
On 6 July 1992, the tenant appealed against this decision to the Torre Annunziata Tribunal.
By decision of 6 June 1995, filed with the registry on 12 June 1995, the Torre Annunziata Tribunal declared that it was not competent to examine the matter, following which the tenant resumed the proceedings before the Naples Tribunal.
On 13 December 1995, on the basis of the order for possession issued by the Sorrento Magistrate on 2 March 1988, the applicants served notice on the tenant requiring her to vacate the premises.
On an unspecified date, they informed the tenant that the order for possession would be enforced by a bailiff on 27 February 1996.
On 5 February 1996, the tenant opposed the notice of 13 February 1995 before the magistrates’ court of Torre Annunziata on the ground that the decision of the Sorrento Magistrate of 30 May 1991 was not yet enforceable as the appeal against it was still pending.
On 31 May 1996, on the basis of the decision issued by the Sorrento Magistrate on 30 May 1991, the bailiff made an attempt to recover possession of the flat which proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.
By a decision of 28 April 1997, filed with the registry on 2 May 1997, the Torre Annunziata Magistrate annulled the notice on the ground that the decision of the Sorrento Magistrate was not yet enforceable, since the proceedings were still pending on appeal.
Between 21 May 1997 and 30 April 1998, on the basis of the decision issued by the Sorrento Magistrate on 31 May 1991, the bailiff made three attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.
By a decision of 16 February 2000, filed with the registry on 18 February 2000, the Naples Tribunal rejected the appeal of the tenant and confirmed the decision of the Sorrento Magistrate of 30 May 1991.
On 28 July 2000, on the basis of the decision issued by the Naples Tribunal on 16 February 2000, the applicants served notice on the tenant requiring her to vacate the premises.
On an unspecified date, they informed the tenant that the order for possession would be enforced by a bailiff on 19 September 2000.
On 15 September 2000, pursuant to section 6 of Law No. 431/98, the tenant asked the Torre Annunziata Tribunal to set a new date for the enforcement of the order for possession. The date was set for 25 January 2001.
On 19 September 2000, the bailiff made one attempt to recovered possession of the flat which proved unsuccessful as the applicants were not entitled to police assistance in enforcing the order for possession.
On 26 January 2001, the applicants recovered possession of the flat.
1. The applicants complain that the length of the proceedings was excessive and in breach of Article 6 § 1 of the Convention.
2. In their observations in reply to those of the Government, the applicants further complain under Article 1 of Protocol No. 1 to the Convention that their inability to recover possession of their flat amounted to a violation of their right to property.
1. The applicants claim that they were victims of a violation of Article 6 § 1 of the Convention, which provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The Government submit that the applicants acquired the right to recover possession of their flat only when the appeal of the tenant was rejected by the Naples Tribunal. Until then, the previous decisions, namely the decision of the Sorrento Magistrate and the decision of the Torre Annunziata Tribunal, had never been enforceable. In the opinion of the Government, the decision of the Sorrento Magistrate was made enforceable by a mere mistake. Therefore, all the acts which occurred before 18 February 2000 were null and void and cannot be taken into consideration by the Court. Accordingly, the Government consider that the applicants had not suffered from a prolonged inability to recover possession of the flat and that the case should only be examined by the Court under Article 6 § 1 of the Convention with respect to the length of the proceedings. In this connection, the Government object that the applicants did not exhaust the domestic remedies following the entry into force of Law no 89 of 24 March 2001 (“the Pinto Act”).
The applicants consider that the proceedings before the Sorrento Magistrate lasted more than three years and maintain that a reasonable time in the circumstances would have been less than one year. They further stress that they had to wait eight years in order to obtain an enforceable decision. Finally, they maintain that they lodged their application with the Court before the entry into force of the “Pinto Act”. Accordingly, they had exhausted the domestic remedies available at that time.
In so far as the applicants complain of the length of the civil proceedings on the determination of their right to recover possession of the flat, the Court first notes that while they summoned the tenant to appear before the Sorrento Magistrate on 24 February 1988, they recovered possession of the flat on 26 January 2001. Therefore, the proceedings at issue lasted twelve years and eleven months.
The Court recalls, however, that under the Pinto Act, anyone who has sustained pecuniary or non-pecuniary damage can apply to the appropriate court of appeal for a declaration that there has been a violation of the European Convention on Human Rights in respect of the “reasonable time” requirement in Article 6 § 1 and claim a sum in just satisfaction.
The Court points out that in many earlier cases (see, among others, Brusco v. Italy (dec.), no. 69789/01, CEDH 2001-IX, and Giacometti v. Italy (dec.), no. 34969/97, CEDH 2001-XII), it has held that the remedy introduced by the Pinto Act is one that the applicant must make use of before the Court rules on the admissibility of the application, regardless of the date on which the application was lodged.
The Court discerns no circumstances which call for a different decision in the instant case. It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.
Even examining the complaint in connection with the more general right to a court (see, among others, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 61, ECHR 1999-V), this part of the application is in any event inadmissible for the following reasons.
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, 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 a 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).
The Court observes that once the applicants obtained a valid order for possession, namely the decision issued by the Naples Tribunal on 16 February 2000, they had to wait four months after the first attempt of the bailiff before being able to repossess the flat.
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 to undermine its substance (see, a contrario, Immobiliare Saffi, cited above, § 73; see also, mutatis mutandis, Caselli v. Italy (dec.), no. 36679/97, 20.01.2000).
Finally, the Court considers, bearing in mind the practical difficulties created 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, Scollo v. Italy, judgment of 28 September 1995, Series A no. 315-C, p. 55, § 44 in fine).
It follows 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 complain of their prolonged inability to recover possession of their flat owing to the lack of police assistance. They alleged a violation of their right of property, as guaranteed by Article 1 of Protocol No. 1 to the Convention, which provides:
“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 recalls that the applicants raised this complaint in their observations in reply to those of the Government on 18 March 2003.
The Court observes that they recovered possession of the flat on 26 January 2001. It considers that it is from this date that the six months’ period referred to in Article 35 § 1 began to run. Accordingly, this part of the application must be rejected for non-compliance with the six-months rule and is therefore inadmissible in application of Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Peer Lorenzen
RUSSO v. ITALY DECISION
RUSSO v. ITALY DECISION