FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 68011/01 
by Giuseppe MOSCONI 
against Italy

The European Court of Human Rights (First Section), sitting on 13 May 2004 as a Chamber composed of:

Mr P. Lorenzen, President
 Mr G. Bonello
 Mrs F. Tulkens
 Mrs S. Botoucharova
 Mr A. Kovler
 Mr V. Zagrebelsky, 
 Mrs E. Steiner, judges
and Mr S. Nielsen, Deputy Registrar,

Having regard to the above application lodged on 21 January 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Giuseppe Mosconi, is an Italian national who was born in 1931 and lives 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.

The applicant is the owner of two flats in Rome, which he had respectively let to C.C. and G.C.

In a registered letter of 14 June 1991, the applicant informed the tenants that he intended to terminate the lease on expiry of the term on 31 December 1991 and asked them to vacate the premises by that date.

In a writ served on the tenants on 16 January 1992, the applicant reiterated his intention to terminate the lease and summoned the tenants to appear before the Rome Magistrate.

By a decision of 16 April 1992, 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 30 March 1993.

On 11 March 1995, the applicant served notice on the tenants requiring them to vacate the premises.

On 25 March 1995, he informed the tenants that the order for possession would be enforced by a bailiff on 5 May 1995.

On 5 May 1995, the bailiff made one attempt to recover possession of the flats which proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.

Pursuant to Law no. 241/90, on 2 November 1995, the applicant addressed himself to the Prefectoral Committee in order to be granted the assistance of the police in enforcing the order for possession.

The Prefectoral Committee informed the applicant that priority was given to landlords urgently requiring premises as accommodation for themselves, their spouses, children or ascendants and for seeking priority treatment he should have made a statutory declaration.

On 11 September 1999, the Rome Magistrate set the date of the eviction proceedings for 10 January 2000.

Then, pursuant to Law no. 388 of 23 December 2000, the enforcement proceedings were suspended until 29 June 2001; Law-Decree no. 247/01 suspended them until 31 December 2001 and Law-Decree no. 450/01 suspended them until 30 June 2002.

On 25 November 2002, the applicant recovered possession of the flat which he had let to C.C.

Pursuant to Law no. 200 of 24 August 2003, Law-Decree no. 147/03 suspended the enforcement proceedings until 30 June 2004.

According to the last information provided by the applicant on 15 August 2003, he had not yet recovered possession of the flat which he had let to G.C.

COMPLAINTS

1. The applicant complains under Article 1 of Protocol No. 1 to the Convention about his prolonged inability - through lack of police assistance - to recover possession of his flats.

2. The applicant further complains under Article 6 of the Convention about the duration of the eviction proceedings.

THE LAW

1. The applicant complains of his prolonged inability to recover possession of his flats, owing to the lack of police assistance. He alleges a violation of his 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 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 during enforcement, challenging the legitimacy of the bailiff's decisions to defer the eviction.

The applicant did not make any specific submission on this point.

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 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.

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.

Having regards to both proceedings concerned, the first one against the tenant C.C. and the second one against the tenant G.C., the Court considers that this part of 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 it inadmissible has been established.

2. The applicant complains about the duration of the eviction proceedings. He alleges 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 ...”

In their observations, which the Registry received on 30 October 2002, subsequently communicated to the applicant on 29 July 2003, 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 applicant relied on the tempus regit actum principle to dispute the retroactive application of the Act.

The Court recalls that under Law no. 89 of 24 March 2001 (“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 cases 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 latter was lodged (see, among others, Brusco v. Italy (dec.), no. 69789/01, CEDH 2001-IX ; Giacometti v. Italy (dec.), no. 34969/97, CEDH 2001-XII ; Scordino c. Italie (déc.), no 36813/97, CEDH 2003-IV).

As far as the applicant was on time, with regards to the first flat, and is still on time, with regards to the second flat, to make use of the Pinto Act in the context of the new jurisprudence developed by the Court of Cassation, the Court discerns no circumstances which call for a different decision in the instant case (see, Pollano v. Italy (dec.) no. 63635/00, 18 March 04 and, a contrario, Mascolo v. Italy (dec.), no. 68792/01, 16 October 2003).

Having regards to both proceedings concerned, the Court therefore holds that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaint under Article 1 of Protocol No. 1 to the Convention concerning the prolonged inability to recover possession of his flats;

Declares inadmissible the remainder of the application.

Søren Nielsen Peer Lorenzen 
Registrar President

MOSCONI v. ITALY DECISION


MOSCONI v. ITALY DECISION