THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 66327/01 and 66556/01 
by Clara and Licia FEDERICI 
against Italy

The European Court of Human Rights (Third Section), sitting on 20 January 2005 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr J. Hedigan
 Mr L. Caflisch
 Mrs M. Tsatsa-Nikolovska
 Mr V. Zagrebelsky
 Mrs A. Gyulumyan, 
 Mr David Thór Björgvinsson, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 21 November 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 FACTS

The applicants, Mrs Clara and Licia Federici, are two Italian nationals who were respectively born in 1927 and 1929 and live in Rome. They are represented before the Court by MM. M. and C. Segnalini, two lawyers practising in Rome.

The respondent Government were represented by their successive Agents, respectively Mr U. Leanza and Mr I.M. Braguglia, and by their successive 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.

1. Application no. 66327/01

In a registered letter of 26 February 1990, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 5 October 1992 and asked him to vacate the premises by that date.

In a writ served on the tenant on 28 December 1990, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.

By a decision of 17 May 1991, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit on 5 October 1992 and ordered that the premises be vacated by 5 October 1993.

Pursuant to Law no. 359/92, the expiry of the term was extended until 5 October 1994.

This decision invalidated the previous writ. As a result, the applicants had to restart the eviction proceedings.

On 5 April 1996, they served on the tenant a second notice to quit and summoned him to appear before the Rome Magistrate.

By a decision of 20 November 1996, the Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 20 May 1997.

On 18 December 1998, the applicants served on the tenant the order to vacate the premises.

On 17 February 1999, they informed the tenant that the order for possession would be enforced by a bailiff on 22 July 1999.

On 25 October 1999, the applicants served on the tenant a second order to vacate the premises.

On 4 November 1999, they informed the tenant that the order for possession would be enforced by a bailiff on 30 November 1999.

Between 30 November 1999 and 14 April 2000, the bailiff made four attempts to recover possession. Each attempt proved unsuccessful.

On 30 June 2000, the applicants recovered possession of the flat.

2. Application no. 66556/01

In a registered letter of 19 February 1990, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 30 June 1991 and asked him to vacate the premises by that date.

In a writ served on the tenant on 13 June 1990, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.

By a decision of 22 June 1992, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit on 31 December 1993 and ordered that the premises be vacated by 30 September 1994.

Pursuant to Law no. 359/92, the expiry of the term was extended until 31 December 1995.

This decision invalidated the previous writ. As a result, the applicants had to restart the eviction proceedings.

On 5 April 1995, the applicants served a second writ on the tenant with a view to terminating the lease.

The tenant was then summoned to appear before the Rome Magistrate who, by a decision of 20 November 1996, upheld the validity of the notice to quit and ordered the premises be vacated by 20 November 1997.

On 18 December 1998, a notice was served on the tenant requiring him to vacate the premises.

On 17 February 1999, the applicants informed the tenant that the order for possession would be enforced by a bailiff on 22 July 1999.

Between 30 November 1999 and 14 April 2000, the bailiff made 4 attempts to recover possession. Each attempt proved unsuccessful.

On 29 September 2000, the applicants recovered possession of the flat.

B.  Relevant domestic law and practice

 The relevant domestic law and practice is described in the decision Provvedi c. Italie (no 66644/01, of 2 December 2004).

COMPLAINTS

The applicants complain under Article 6 § 1 of the Convention about the length of the eviction proceedings

They further complain under Article 1 of Protocol No. 1 about their prolonged inability - through lack of police assistance - to recover possession of their flats.

THE LAW

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

They further complain under Article 1 of Protocol No. 1 that their inability to recover possession of their flats amounted to a violation of the right to property.

The Government objected that the applicants had failed to exhaust domestic remedies as they 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 during 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 the Government's 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.

With regard to the second limb of the objection, the Court notes that although the applicants 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 Court received on 30 October 2002, the Government argued once more that the applicants had not exhausted domestic remedies. They maintained that following 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 Law 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 applicants contended that this remedy was optional rather than compulsory since the term used in section 6 of the Act was “entitled” and not “must”. They also relied on the tempus regit actum principle to dispute the retroactive application of the Act.

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 applications are manifestly ill-founded since the applicants recovered possession of their flats even less than one year after the first attempt of the bailiff.

They also submit 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 notes that although the applicants recovered possession of their flats few time after the first attempt of the bailiff, the entry into force of Law no. 359/92, obliged them to restart the whole eviction proceedings.

Therefore, the Court considers that the applications raise complex and serious issues which require a determination on the merits. It follows that they cannot be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the applications inadmissible has been established.

For these reasons, the Court unanimously

Decides to join the applications;

Declares the applications admissible, without prejudging the merits of the case.

Vincent Berger Bostjan M. ZupanČiČ 
 Registrar President

FEDERICI v. ITALY DECISION (no. 2)


FEDERICI v. ITALY DECISION (no. 2)