CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 décembre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 24236/94                       by N., C., F. and A. G.                       against Italy         The European Commission of Human Rights sitting in private on 4 December 1995, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL              Mr.    H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 9 November 1993 by N., C., F. and A. G. against Italy and registered on 31 May 1994 under file No. 24236/94;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicants are Italian nationals born in 1959, 1961, 1965 and 1967 respectively and residing in Rome; they act through their father by virtue of a proxy of 1989.         Before the Commission, the applicants are represented by Mr. Alfredo Barbieri, a lawyer practising in Rome.         The facts of the case, as submitted by the applicants, may be summarised as follows.   a)     Particular circumstances of the case         By a contract dated 16 October 1989, the applicants purchased a villa in Rome, which had been previously let to Albania and was now the seat of the Albanian Mission in Italy.   The proceedings before the Rome magistrate         In a writ served on 22 February 1990, the applicants gave the Albanian Embassy notice to quit and summoned it to appear before the Rome magistrate in order to terminate the tenancy. The Embassy opposed the eviction on the ground of its immunity from Italian jurisdiction.         By decision ("ordinanza di rilascio") of 17 July 1990, filed with the Registry on 18 July 1990, the Rome magistrate provisionally confirmed the eviction with effect from 31 January 1991, and set the date of eviction at 30 September 1991. He held in particular that the Albanian Embassy was to be considered as acting in its capacity of private individual and therefore was subject to the Italian jurisdiction.         The proceedings had to be pursued, within ninety days of the date of the provisional decision, before the Rome court in order to have the eviction confirmed and the damages suffered by the applicants as a consequence of the delayed release of the villa assessed.         The Rome magistrate's decision became enforceable on 30 August 1990 and was served on the tenant on 12 September 1990.   The proceedings before the Rome court         By a writ issued on 5 October 1990 and served on 12 October 1990, the applicants summoned the Albanian Embassy to appear before the Rome court in order to have the eviction confirmed.         By another writ served on 4 March 1991, the applicants summoned the Albanian Embassy to appear before the Rome court in order to have the damages suffered as a result of the delayed release of the villa assessed. An expert opinion was issued on the current market value of the applicants' property and filed with the Registry on 1 June 1992.         The two sets of proceedings were joined on 24 March 1993.         By judgment of 10 November 1993, filed with the Registry on 26 November 1993, the Rome court confirmed the Rome magistrate's decision of 17 July 1990, and awarded the applicants damages of some 1.500.000.000 Italian liras and costs. The judgment became final on 7 April 1994.   The execution proceedings         On 9 December 1991 and 24 February 1992 respectively, the applicants served on the tenant the notice to vacate the premises and the warning that, if it did not leave of its own accord, on 6 March 1992 the bailiff would enforce the order for possession. Nevertheless, the bailiff refused to evict the Albanian Embassy.         On 11 May 1992 and 8 June 1992 respectively, the applicants served on the tenant a second order to vacate the premises and the warning that on 29 July 1992 the bailiff would enforce the eviction. However, in June 1992 the bailiff informed the applicants' counsel that he would not proceed to the eviction, on the ground of the immunity of the Albanian Embassy from Italian jurisdiction and of the inviolability of its premises.         On 17 June 1992, the applicants applied to the Rome magistrate, requesting that the latter confirm that the bailiff ought to have proceeded to the eviction and, in pursuance of Article 32 of the Vienna Convention on diplomatic relations, ought to have entered the Embassy and asked the Ambassador whether he intended to give up his immunity, in which case the bailiff should have enforced the eviction order.         The hearing before the Magistrate, originally fixed to 28 September 1992, was first postponed to 13 January 1993 and finally took place on 24 February 1993. At a further hearing on 7 April 1993, the magistrate reserved his decision.         Meanwhile, on 6 October 1992, the applicants applied to the Italian Ministry of Foreign Affairs. They claimed that Article 21 of the Vienna Convention puts the Italian authorities under an obligation to find a suitable alternative residence for the (evicted) Embassy and, for these purposes, they pointed out that already in 1991 they had indicated another suitable house in Rome, and that in any event another suitable house was available in the same street. They never obtained any reply.         By a decision of 20 July 1993, the magistrate dismissed the applicants' application; he held that the eviction could not be enforced in practice, in that enforcement proceedings commence with the bailiff entering the premises, whereas in the present case this was not feasible on the ground of the inviolability of the premises of a diplomatic mission.         To date, the Albanian Embassy has not vacated the applicants' property.   b)     Relevant law   Article 21 of the Vienna Convention on diplomatic relations of 1961:         "1.   The receiving State shall either facilitate the acquisition       on its territory, in accordance with its laws, by the sending       State of premises necessary for its mission, or assist the latter       in obtaining accommodation in some other way."   Article 22:         "1.   The premises of the mission shall be inviolable. The agents       of the receiving State may not enter them, except with the       consent of the head of the mission.         2.    The receiving State is under a special duty to take all       appropriate steps to protect the premises of the mission against       any intrusion or damage and to prevent any disturbance of the       peace of the mission or impairment of its dignity.         3.    The premises of the mission, their furnishing and other       property thereon and the means of transport of the mission shall       be immune from search, requisition, attachment or execution."   Article 32:         "1.   The immunity from jurisdiction of diplomatic agents (...)       may be waived by the sending State.         2.    Waiver must always be express. (...)"   COMPLAINTS         The applicants complain under Article 6 para. 1 of the Convention about the excessive length of the eviction proceedings.         They do not dispute that, in pursuance of the principle of inviolability of the premises of the diplomatic missions, the order for possession they obtained against Albania cannot be enforced, but allege that the Italian authorities have failed to provide the Albanian Embassy with a suitable alternative residence, in breach of Article 21 of the Vienna Convention on diplomatic relations.   THE LAW         The applicants complain under Article 6 para. 1 (Art. 6-1) about the length of the proceedings concerning the eviction.         Although they acknowledge the principle of the inviolability of the premises of diplomatic missions, and therefore accept that the order for possession they obtained against the Albanian Embassy cannot be enforced, they argue that the excessive length of the proceedings is due to the failure of the Italian authorities to find for the Embassy a suitable alternative accommodation instead of their property, and that this is in breach of Article 21 of the Vienna Convention on diplomatic relations.         The Commission first observes that Article 21 of the said Convention clearly refers to relations between States and does not confer any rights on the individuals to have such action taken. Nor can such right be derived from any Italian legal provision.         In any case, the Commission considers that it is not competent to examine whether this application discloses any appearance of a violation of the European Convention on Human Rights or its Protocols.         In respect of disputes concerning the seats of diplomatic missions, the Commission notes that international customary law accords sending States immunity not only from execution, but also from jurisdiction in the receiving State.         It further recalls that, according to the case-law of the Convention organs, the right to access to court does not require that courts shall have unlimited jurisdiction; in particular, Article 6 (Art. 6) of the Convention should be interpreted with due regard to parliamentary and diplomatic immunities as traditionally recognised: in such cases, the defendant is inaccessible and it is for the domestic court to apply the corresponding limitation of its jurisdiction (cf. No. 4451/70, Commission report of 1.6.73, p. 44 paras. 93 ss.; No. 3374/67, dec. 6.2.69, Collection of Decisions 29, p. 29).         Accordingly, the Commission considers that the particular circumstances of the case would have justified a limitation of the applicants' right of access to court.         It is true that in the present case the domestic courts did not deny their jurisdiction and ruled on the merits of the applicants' claims.   Yet, since the applicants were not entitled under Article 6 (Art. 6) of the Convention to have access to court in the present case, the Commission considers that they cannot invoke this provision to complain about the length of the proceedings which actually took place, Article 6 para. 1 (Art. 6-1) of the Convention not being applicable to those proceedings.         It follows that the present application is incompatible ratione materiae with the provisions of the Convention in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission            President of the Commission          (H.K. KRÜGER)                          (S. TRECHSEL)