CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 septembre 1996

.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. 15919/89                       by Edoardo PALUMBO                       against Italy        The European Commission of Human Rights (First Chamber) sitting in private on 4 September 1996, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 23 November 1989 by Edoardo PALUMBO against Italy and registered on 19 December 1989 under file No. 15919/89;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on 6 July      1993 and the observations in reply submitted by the applicant on      30 July 1993;   -     the additional observations submitted by the applicant on 2 April      1996 and by the respondent Government on 3 April 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Italian national born in 1953 and residing in Rome. Before the Commission, he is represented by M. Michele Pazienza, lawyer in Rome.        The facts of the case, as submitted by the parties, may be summarised as follows.   a)    The circumstances of the case        The applicant is the owner of a flat in Rome, which he had let to Mrs. A.B. The lease had been extended until 31 December 1983 by Law no. 392 of 12 July 1978.        In a writ served on 13 October 1983, the applicant gave Mrs A.B. notice to quit the flat on 31 December 1983, and summoned her to appear before the Rome magistrate ("pretore").        On 7 October 1983 the magistrate formally confirmed the notice to quit and set the date of eviction at 31 December 1984. The decision was served on the tenant on 13 October 1983 and made enforceable on 27 October 1983.        In pursuance of Law no. 94 of 25 March 1982 which had extended existing leases for a period of two years, the applicant could not begin enforcement proceedings before 6 March 1986. On 6 March, 8 April, 9 May, 17 June, 22 July, 1 October and 5 November 1986, the bailiff unsuccessfully attempted to evict the tenant without police assistance.        By a deed dated 6 March 1987 the applicant made a solemn declaration under Law no. 899 of 23 December 1986 that he needed to recover his flat in order to live there himself. He said that his case should accordingly be given priority.        Pursuant to Law no. 899 of 23 December 1986, the execution was suspended until 31 March 1987.        On 21 April and 28 May 1987, the bailiff made two other unsuccessful attempts to evict the tenant.        On 24 June 1987 the applicant was granted police assistance in evicting his tenant; however, on that day the latter claimed to be ill and no officially appointed doctor was available to check her allegations. The bailiff arranged to make his next visit to the premises on 14 July 1987. However, on this occasion the applicant was not granted the police assistance and the tenant refused to vacate the premises.        Pursuant to law-decree no. 551 of 30 December 1988 and to Laws no. 108 of 8 April 1988 and no. 61 of 21 February 1989 the enforcement of the order for possession was suspended until 31 April 1989.        So far, after 41 unsuccessful attempts by the bailiff, the applicant has not recovered possession of his flat.   b)    Relevant domestic law and practice        Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents.   This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of evictions.        I.     As regards the statutory extension of tenancies        The last statutory extension of all current leases, with the exception of certain cases specifically prescribed by law, was introduced by Law No. 392 of 27 July 1978 and remained in force until 31 December 1982, 30 June 1983 or 31 December 1983 depending on the dates on which the leases were signed.        It should, however, be noted that, as regards buildings used for purposes other than housing, the statutory extension of current leases prescribed by Article 1 para. 9 of Law No. 118 of 5 April 1985 was declared unconstitutional in a decision (No. 108) handed down by the Constitutional Court on 23 April 1986.   In its decision the court held that the statutory restrictions imposed on property rights under Article 42 of the Constitution, with a view to ensuring social justice, make it possible to regard controls imposing restrictions as legitimate, provided that such controls are of an exceptional and temporary nature" but that "the act of perpetuating such restrictions was incompatible with the protection of property rights embodied in Article 42 of the Constitution.        In its decision, the Constitutional Court also pointed out that the statutory six-month extension of leases on buildings used for purposes other than housing, prescribed by Law No. 118, should not be considered in isolation but within the context of the entire system of tenancy regulations.   The court drew particular attention to the fact that this extension succeeded other statutory extensions and could mark the beginning of new restrictions on freedom of contract in this field. Moreover, the statutory extension of leases had the effect of prolonging contracts in which the rent, notwithstanding the increases allowed in accordance with rises in the cost of living, "was far removed from the current socio-economic conditions".   Further, the law concerned did not give the lessor the possibility to regain possession of the property except in cases of absolute necessity.        The Constitutional Court also held that Law No. 118, inasmuch as it provided for a blanket extension of current leases without taking into consideration the particular economic circumstances of lessors and lessees - as would have been necessary to ensure social justice -, infringed the principle of the equality of citizens before the law embodied in Article 3 of the Constitution.        II.    As regards enforcement        Numerous provisions have established rules for the postponement, suspension or staggering of judicial decisions ordering tenants to vacate the premises they occupy (ordinanze di sfratto).        A first suspension was introduced by Legislative Decree No. 795 of 1 December 1984.   The provisions set forth therein were incorporated in Legislative Decree No. 12 of 7 February 1985, which became Law No. 118 of 5 April 1985, covering the period from 1 December 1984 to 30 June 1985.   This legislation also provided for the staggered postponement of enforced evictions to 1 July 1985, 30 September 1985, 30 November 1985 or 31 January 1986 respectively, depending on the date on which the judgment recording the end of the lease had become enforceable.        Section 1(3) of Law no. 118 stipulated that such suspensions were not applicable if repossession of the premises had been ordered because arrears of rent were owed. Similarly, no suspension could be ordered in the following cases:        (i)    where, after conclusion of the contract, the lessor            required the property for his own use or for that of his            spouse or his children or grandchildren, for residential,            commercial or professional purposes, or where a lessor who            intended to use the premises for one of the above-mentioned            purposes (a) offered the tenant similar accommodation at a            rent which he could afford and which was not more than 20%            higher than the previous rent and (b) undertook to pay the            costs of the tenant's removal (Article 59, first            subsection, paragraphs 1, 2, 7 and 8 of Law no. 392 of            27 July 1978 ("Law no. 392") and        (ii)   where, inter alia, a lessor urgently needed to regain            possession of his flat as accommodation for himself, his            children or his ascendants (Article 3, first paragraph sub-            paragraphs 1, 2, 4 and 5 of Legislative Decree No. 629 of            15 December 1979, which became Law No. 25 of 15 February            1980 ("Law no. 25").        A second suspension was introduced by Legislative Decree No. 708 of 29 October 1986, which became Law No. 899 of 23 December 1986.        It covered the period from 29 October 1986 to 31 March 1987 and provided for the same exceptions as the provisions in the preceding legislation.        Law no. 899 of 23 December 1986 also established that the Prefect was competent to determine the criteria for authorising police assistance in evicting recalcitrant tenants, after consulting a committee including representatives of both tenants and landlords.        Section 3 (5 bis) of Law no. 899 of 23 December 1986 also provided for the automatic suspension until 31 December 1987 of forcible evictions of tenants entitled to subsided housing.        A third suspension was introduced by Legislative Decree No. 26 of 8 February 1988, which became Law No. 108 of 8 April 1988.   It first covered the period from 8 February to 30 September 1988 and was subsequently extended from the latter date to 31 December 1988.        A fourth suspension was introduced by Legislative Decree No. 551 of 30 December 1988, which became Law No. 61 of 21 February 1989, and covered the period up to 30 April 1989.   In regions suffering from natural disasters the suspension remained in force until 31 December 1989.        With the exception of urgent cases, this Law also provided that police assistance in enforcing evictions only be authorised in gradual stages over a period of forty-eight months as of 1 January 1990 and set up a prefectural committee responsible for deciding which cases most urgently required police intervention.   Consequently the date on which owners could regain possession of their flats could be postponed to 31 December 1993.        All the aforementioned laws and decrees also contained provisions relating to the financing of subsidised housing and housing benefit.   COMPLAINTS   1.    The applicant alleges that the fact that for a prolonged period it has been impossible for him to recover possession of his flat, owing to the implementation of emergency legislative provisions on residential property leases, has infringed   his right to the peaceful enjoyment of his possessions guaranteed by Article 1 of Protocol no. 1.   2.    Relying on Article 6 para. 1 of the Convention, the applicant alleges that his case has not been heard within a reasonable time on account of the implementation of legislative provisions suspending the enforcement of evictions.   3.    The applicant further complains of the fact that applying the legislation in issue entails discrimination between owners of residential property and tenants, in breach of Article 14 of the Convention read in conjunction with Article 1 of Protocol no. 1.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 23 November 1989 and registered on 19 December 1989.        On 5 April 1993 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 6 July 1993, after an extension of the time-limit fixed for that purpose.   The applicant replied on 30 July 1993.        On 28 February 1995, the case was adjourned awaiting the judgments of the European Court of Human Rights in the cases Spadea- Scalabrino and Scollo v. Italy.        On 13 March 1996, the parties were requested to submit their additional observations following the above judgments, delivered on 28 September 1995. The applicant and the respondent Government submitted their observations on 2 April and on 3 April 1996 respectively.   THE LAW   1.    The applicant complains about the prolonged impossibility for him to recover possession of his apartment, owing to the implementation of emergency legislative provisions on residential property leases.        He alleges a violation of Article 1 of Protocol no. 1 (P1-1) to the Convention, which provides as follows:        "Every natural and 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".   a)    As to the exhaustion of domestic remedies        The Government first submit that the applicant has not exhausted the domestic remedies open to him under Italian law in that he failed to appeal to the regional administrative court and then to the supreme administrative court (Consiglio di Stato) against the refusal by the Prefect to grant him priority in the assistance of the police. In the course of these proceedings, the applicant could have raised the question of the constitutionality of the disputed measures by referring to Article 42 of the Italian Constitution which recognises and safeguards property rights.        The applicant refutes the Government's objections. He refers to the case-law of the Convention organs, and in particular to the De Jong and Van der Brink judgment (see Eur. Court HR, De Jong and Van der Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77) to the effect that when a State seeks to rely on the rule of exhaustion of domestic remedies, it falls to the State to prove that the remedy they indicate has the requisites of accessibility and effectiveness. He claims that in the present case the remedy indicated by the Government is certainly not an effective one, given the well-known unreasonable length of civil and administrative disputes in Italy, for which no remedy exists. As to the possibility of raising a question of constitutionality, the applicant refers to the Court's case-law, to the effect that it is for the State to show with certainty the existence of an effective remedy in this respect in light of the established case-law of domestic courts (see Eur. Court HR, Johnston and others v. Ireland judgment of 18 December 1986, series A no. 112); the applicant alleges on the contrary that the respondent Government failed to do so in the present case.        As regards the first part of the Government's objections, the Commission recalls the Convention organs' constant case-law to the effect that the obligation to exhaust domestic remedies requires only that an applicant make normal use of remedies that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they lack the requisite accessibility and effectiveness. It falls for the respondent State to establish that these various conditions are satisfied (see Eur. Court HR, De Jong, Baljet and Van der Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 19, para. 39; amongst others, nos. 14807/89, Dec. 12.2.92, D.R. 72, p. 148; 12742/87, Dec. 3.5.89, D.R. 61, p. 206 and 14992/89, Dec. 7.6.90, D.R. 66, p. 247).        In the present case, the Commission first underlines that the Prefect enjoys of a very wide margin of appreciation in granting the assistance of the police in evicting recalcitrant tenants. The Commission therefore doubts that administrative courts would overrule the Prefect's decisions in this respect. The Commission further notes that the respondent Government were unable to cite any precedent: accordingly, they have not shown that this remedy could constitute an available and sufficient remedy that the applicant ought to have exhausted.        As regards the second part of the Government's objections, the Commission recalls that when an individual, as under Italian law, is not entitled to apply directly to the Constitutional Court for a review of the constitutionality of certain legislation, he does not have available to him in this respect a remedy whose exhaustion is required under Article 26 (Art. 26) of the Convention (see Eur. Court H R, Brozicek v. Italy judgment of 19 December 1989, Series A no. 167, p. 16, par. 34; Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 19, par. 20).        It follows that the Government's objections as to the exhaustion of domestic remedies must be rejected.        In their additional observations, the Government also submit that the applicant has never filed with the Prefect any request for the assistance of the police in evicting his tenant.        The Commission notes that it appears from the affidavit drawn up by the bailiff after each unsuccessful attempt that the latter requested each time the assistance of the police, which was in fact granted on one occasion. Accordingly, this objection must also be rejected.   b)    As to the merits        As regards the substance of the case, the Government consider that the disputed situation should be examined under Article 1 para. 2 of Protocol no. 1 (P1-1-2) which provides that "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...".        The Government point out that the disputed measures were adopted to deal with an exceptional situation due on the one hand to a shortage of reasonably priced housing in certain municipalities, including Rome, and on the other hand to a large increase in demand resulting from the expiry of the statutory extension of current leases on 31 December 1982, 30 June 1983 or 31 December 1983, depending on the dates on which the contracts of lease were signed.        At the same time it was difficult to accede to every request for police assistance in the enforcement of eviction orders.        In the Government's opinion the measures taken were justified from the social point of view and in order to safeguard public order. They were therefore compatible with the general interest.        The applicant refute the Government's arguments. He points out that the exceptional situation referred to by the Italian Government, and which entails restrictions on property rights, has existed in various forms since 1947. He considers that the measures of which he is a victim constitute an infringement of his right to the enjoyment of his possessions and that, in particular in light of the length of the interference, they are incompatible with the reasonable relationship of proportionality that should exist between the general interest and that of individuals.        The Commission considers that the question of whether the applicant's failure to recover possession of his flat due to legislation which came into force on 1 December 1984 constituted a breach of the rights secured to him by Article 1 of Protocol No. 1 (P1-1), raises questions of fact and law of such complexity that their determination should depend on an examination on the merits. It follows that this complaint cannot be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible has been established. 2.    The applicant further complains about the length of the enforcement proceedings. He relies on Article 6 para. 1 (Art. 6-1) of the Convention which provides:        "In the determination of his civil rights and obligations ...      everyone is entitled to a fair and public hearing within a      reasonable time ...".   a)    As to the applicability of Article 6 (Art. 6) of the Convention        The Government submit that Article 6 (Art. 6) of the Convention is not applicable to the proceedings relating to enforced evictions. In this connection they argue that this part of the proceedings does not involve any "determination of the applicant's rights" within the meaning of Article 6 (Art. 6), but merely relate to the satisfaction of rights already secured by court decisions. For this reason the applicant's complaint relating to the excessive length of the proceedings is incompatible with the terms of the Convention.        The applicant disputes the Government's allegations that Article 6 (Art. 6) of the Convention is not applicable in the present case.        The Commission considers that, having regard to the purpose of the proceedings at issue, which was to settle the dispute between the applicant and his tenant, Article 6 (Art. 6) is applicable in the present case (see Eur. Court HR, Scollo v.Italy judgment of 28 September 1995, Series A no. 315-C, p. 55, para. 44).   b)    As to the merits        The Government submit that it is impossible to refer to the excessive length of proceedings when specific legislation has been introduced to prevent a whole category of proceedings from being either instituted or completed. In such cases the problem of is one of ensuring that the rights secured by court decisions are fulfilled.   In the Government's opinion this question must be considered as part of the complaint relating to Article 1 of Protocol No. 1 (P1-1).        The applicant contends that a length of over thirteen years cannot be regarded as "reasonable" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission has considered the submissions of the parties. It finds that this complaint raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. It follows that it cannot be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.   3.    The applicant finally alleges that the said legislation protects tenants to the detriment of landlords, which is clearly discriminatory. He relies on Article 14 (Art. 14) of the Convention, which provides:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any ground      such as sex, race, colour, language, religion, political or other      opinion, national or social origin, association with a national      minority, property, birth or other status."        The Government have not submitted any observations on this point.      The Commission considers that this complaint raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. It follows that it cannot be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.     M.F. BUQUICCHIO                                  J. LIDDY        Secretary                                     President to the First Chamber                          of the First Chamber