CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 27 juin 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. 23924/94                       by C.A.R. Srl                       against Italy   The European Commission of Human Rights (First Chamber) sitting in private on 27 June 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  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 22 September 1993 by C.A.R. Srl against Italy and registered on 19 April 1994 under file No. 23924/94 ;        Having regard to the Commission's decision of 6 September 1995 to communicate the complaint related to the impossibility for the applicant company to recover possession of its premises;        Having regard to the observations submitted by the respondent Government on 8 November 1995 and the observations in reply submitted by the applicant company on 2 January 1996;        Having regard to the additional observations submitted by the respondent Government on 1 April 1996 and by the applicant company on 2 April 1996;        Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Italian building society having its registered office in Rome and acting through its legal representative Mr Stefano Cecchi.        The facts of the case, as submitted by the parties, may be summarised as follows.        By contract of 19 January 1989, the applicant company let 26 villas and 15 garages it owned in Aprilia (Latina) to the company "X". The latter allowed a group of Somalis to settle in the buildings.        On 11 October 1990, an indefinite number of Somali refugees occupied the applicant's buildings.        In November 1990, the company "X" ceased to pay the rent.   a)    The eviction proceedings before the Rome Magistrate        On 27 November 1990, the applicant company brought an action before the Rome magistrate in order to evict "X" on the grounds of non payment of rent; by decision ("convalida di sfratto per morosità") of 9 January 1991, the magistrate ordered the eviction of the tenant with the assistance of the police. The eviction was fixed to 20 January 1991.        On 18 January 1991, the applicant served on the tenant the order ("precetto") to vacate the area.        However, the Somali refugees occupying the applicant's property refused to vacate the premises.        Despite numerous requests to the Latina Prefect, the applicant company   was not granted the assistance of the police, as the solution to its problem was deemed to be of general interest. Numerous attempts by a bailiff (15 April, 27 May, 17 October, 14 November 1991, 14 February, 18 May, 8 September, 8 October and 11 December 92) to evict the Somali refugees were therefore unsuccessful.   b)    The proceedings before the Latina Public Prosecutor        On 9 January 1993, the applicant filed a criminal complaint with the Latina Public Prosecutor against the Somali refugees occupying its premises without any legal title.        The Public Prosecutor carried out preliminary investigations on the situation of the Somali refugees; in particular, he contacted the local administrative authorities in order to find out what had been or was being done to find an alternative suitable accommodation for the refugees and to help them integrate with the local community.        On 22 May 1993, the Public Prosecutor requested that the preliminary investigation against the Somali refugees be discontinued.        On 22 June 1993, the applicant opposed the Public Prosecutor's request to drop the charges against the refugees.        By decree of 15 November 1993, the preliminary investigations against the Somali refugees were discontinued; the Latina investigating judge held that the refugees had not unlawfully occupied the applicant's buildings, but "had been taken there in order to receive assistance" ("i somali   vi venivano fatti affluire onde ricevere assistenza"). He therefore considered that it was a civil rather than a criminal matter, namely a case of eviction of tenants that had to be settled by civil judges.   c)    The proceedings before the Latina Magistrate        On 8 February 1993 the applicant applied to the Latina Magistrate, pointing out that the over 300 refugees refused to vacate its buildings despite an enforceable decision, and that its property was deteriorating. It therefore requested the assistance of the police in evicting the occupants from its premises.        The Latina Magistrate contacted the Lazio administrative authorities that were responsible for the presence of the Somali refugees in the region. The local authorities committed themselves to find a suitable alternative accommodation for the refugees within a short period of time.        By decision of 25 February 1993, the Magistrate considered that the solution to the applicant's problem was of general interest and raised issues of public order, and therefore reserved any decision in this respect, awaiting the intervention of the regional administrative authorities "provided that the latter intervention takes place within a reasonable period of time".        On 11 March 1993, the Magistrate's decision was notified to the regional administrative authorities.        On 4 June 1993, no action having been taken, the applicant once again applied to the Latina Magistrate and renewed its request for the assistance of the police.        By decision of 30 June 1993, the Latina Magistrate observed that the case could either be considered as an eviction of tenants - and the competent authority to grant the assistance of the police was thus the Latina Prefect - or as an unlawful occupation of property by the Somali refugees - and the competent authority to settle the matter was the Public Prosecutor. The Magistrate therefore forwarded the applicant's request to both the Latina Prefect and the Latina Public Prosecutor's Office.        Meanwhile, on 25 June 1992 the Aprilia town council paid the gas bill, the water bill and the electricity bill for the refugees.        On 16 March 1993, the Lazio regional authorities paid the electricity bill for the refugees.        On 22 October 1993, the applicant served on the company "X" a second order to vacate the premises.        On 3 February 1994, the occupants vacated the buildings following the intervention of the Lazio Councillorship of local Public Bodies and Immigration ("Assessorato agli enti locali e all'immigrazione della Regione Lazio"), that moved them to certain buildings in Anzio.        On 12 February 1994, the applicant, with the assistance of a bailiff, obtained the possession of its buildings.   COMPLAINTS   1.    The applicant company complains that, despite an enforceable judgment, it has been unable to evict the persons illegally occupying its buildings for more than three years.        It further complains that it has not received any compensation from the administrative authorities for the significant financial damages he suffered in terms of both unpaid rent and damages to the property; it argues that it was charged the costs of the local authorities' policy in the social field.        It invokes Article 1 of Protocol no. 1 to the Convention.   2.    The applicant company finally complains about the length of the proceedings.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 23 September 1993 and registered on 19 April 1994.        On 6 September 1995 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure as to the complaint related to the impossibility of recovering possession of the property.        The Government's written observations were submitted on 8 November 1995.   The applicant company replied on 2 January 1996.        The Government and the applicant company submitted additional observations on 1 April and on 2 April 1996 respectively.   THE LAW   1.    The applicant company complains about the inaction of the Italian authorities with respect to the prolonged occupation sine titulo of its property by a group of Somali refugees and about the lack of compensation for the financial prejudice it suffered in this connection.        It invokes Article 1 of Protocol no. 1 (P1-1), according to which:        "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 respondent Government submit that the applicant company has not exhausted domestic remedies; they submit that the applicant company was and is wrong in considering that the present case concerns an eviction of tenants, because the order for possession directed against the original tenant could not be enforced against "squatters", namely occupants sine titulo, as they could not be considered as subtenants. According to the Government, the applicant company would have had to institute further civil proceedings against the Somali refugees with a view to obtaining an acknowledgment of their status of illegal occupants and subsequently an order for possession against them.        The applicant company disputes the Government's objection. It claims that the Magistrate's order for possession of 9 January 1991 was enforceable against any occupant of its property, illegal occupants included. In any event, it claims that the Somali refugees had been taken to its property by its tenant "X" in order to receive assistance: they had thus a sort of right of occupancy and were not "squatters" - which was clearly stated by the judge for the Preliminary hearing of Latina in his decision of 15 November 1993.   They could therefore be evicted on the basis of the order for possession issued against "X".        The Commission first observes that the enforcement proceedings against the Somali refugees were commenced on the basis of an order for possession directed against the original tenant. It further observes that on the one hand, the civil judges took for granted that the Somali refugees were illegal occupants, whereas on the other hand the criminal judges held that they were not.        However, the Commission considers it unnecessary to decide the question whether the Somali refugees were squatters or not or whether the order for possession could or could not be legally enforced against them.        The Commission observes in fact that the enforceability of the order for possession of 9 January 1991 against the Somali refugees was never disputed by the Italian authorities in the course of the various civil and criminal proceedings instituted by the applicant company. Even assuming that the refugees were in fact illegal occupants and that the order for possession directed against the applicant company's tenant could not be enforced against them, the Commission observes that the reason for the non-enforcement of the order for possession was of public order nature, namely the prevention of possible disorders.        The Commission considers that the Government have failed to demonstrate that such issues of public order would have been handled in a different manner, had the applicant company exhausted the remedy indicated by the Government and therefore obtained another order for possession directly against the Somali refugees.        As regards the possibility for the applicant company to be compensated for the financial prejudice it suffered in terms of both unpaid rent and damages to the property, the Commission recalls that it is its normal practice, where an application has been communicated to the respondent Government, in part or as a whole, not to declare the complaint concerned inadmissible for failure to exhaust domestic remedies unless this matter has been raised by the Government in thier observations (see for example nos. 24541/94, dec. 26.2.96, and 20251/92, dec. 5.3.96, unpublished). In the present case, the Italian Government failed to indicate any remedy concerning the above financial prejudice.        In these circumstances, the Commission finds that the application cannot be declared inadmissible for non-exhaustion of domestic remedies.     b)    As to the merits        As regards the substance of the case, the Government submit that the interference with the applicant company's peaceful enjoyment of its possessions was in accordance with the general interest and not long enough to place an excessive burden on the applicant company.        The applicant company refers to the significant financial damages it has suffered and subsequently disputes the Government's allegations that the interference with its property rights does not amount to a breach of Article 1 of Protocol no. 1 (P1-1).        The Commission has considered the submissions of the parties. It finds that the complaints raise 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 the complaints cannot be dismisses as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring them inadmissible has been established.   2.    The applicant company finally complains about the length of the proceedings. The period to be taken into consideration began on 27 November 1990, when the original tenant was summoned to appear before the Rome magistrate, and ended on 12 February 1994, when the applicant company reobtained possession of its premises (see Eur. Court H.R., Scollo judgment of 28 September 1995, Series A no. 315-C); the period under consideration is therefore three years, two months and twenty- three days.        Article 6 (Art. 6) of the Convention, in so far as relevant, reads as follows:        "In the determination of his civil rights and obligations (...)      everyone is entitled to a (...) hearing within a reasonable time      (...)by [a] tribunal (...)".        The Commission recalls that:        "The reasonableness of the length of the proceedings is to be      assessed in the light of the particular circumstances of the      case, regard being had to the criteria laid down in the Court's      case-law, in particular the complexity of the case, the      applicant's conduct and that of the competent authorities ..."      (Eur. Court H.R., Kemmache judgment of 27 November 1991, Series A      no. 218, p. 27, para. 60).        The Commission considers that, although the proceedings at issue were not factually complex, they indeed required the solution of an undoubtedly complex practical and administrative issue, namely finding an alternative accommodation for the numerous Somali refugees occupying the applicant company's premises, which involved issues of public order nature.        The Commission considers that, given the complexity of the case, the proceedings in question, having lasted almost three years and three months, are not sufficiently long to conclude that the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention has been exceeded in the present case.        It follows that this part of the application is manifestly ill- founded and must be rejected in pursuance of Article 27 para. 2 (Art. 27-2) of the Convention.          For these reasons, the Commission,   unanimously,        DECLARES ADMISSIBLE the complaints related to the impossibility      of reobtaining possession of the premises, without prejudging the      merits of the case;        DECLARES INADMISSIBLE the remainder of the application.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)