FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 65674/01 by Giovanni DEL DUCE against Italy

The European Court of Human Rights (First Section), sitting on 18 March 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , Mr K. Hajiyev, judges ,

and Mr S. Q uesada , Deputy Section Registrar ,

Having regard to the above application lodged on 20 June 2000,

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 Giovanni Del Duce, is an Italian national who was born in 1937 and lives in Rome. He was represented before the Court by Mr T. Fiorini and Mr F. Falco, lawyers practising in Pomezia.

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.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is the owner of a flat in Rome, which he had let to R.B.

In a registered letter of 31 December 1990, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 30 November 1991 and asked her to vacate the premises by that date.

In a writ served on the tenant on 18 February 1992, the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.

By a decision of 8 July 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 May 1994.

Pursuant to Law no. 359/92 the expiry of the term was extended for two years from 30 November 1993 to 30 November 1995.

Nonetheless, on 4 November 1994, the applicant served notice on the tenant requiring her to vacate the premises.

On 30 November 1994, he informed the tenant that the order for possession would be enforced by a bailiff on 15 December 1994.

Between 15 December 1994 and 10 October 1995, the bailiff made six attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.

In the meanwhile, the tenant fell in rent arrears.

On 6 April 1995, pursuant to Law no. 61/89, the applicant asked the Rome Magistrate to suspend the extension of the expiry of the term and asked to be granted the assistance of the police in enforcing the order for possession. The Rome Magistrate refused to grant the assistance of the police.

Therefore, the applicant decided to restart the eviction proceedings. According to his representatives' advice, this would have avoided a waste of time and additional costs, a new legal title for the execution of the eviction being not subject to the suspension of the enforcement.

In a writ served on the tenant on 29 November 1995, the applicant informed her of his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.

By a decision of 28 March 1996, 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 15 January 1997.

On 20 February 1997, the applicant served notice on the tenant requiring her to vacate the premises.

On 9 May 1997, he informed the tenant that the order for possession would be enforced by a bailiff on 20 May 1997.

Between 20 May 1997 and 15 October 1998, the bailiff made seven attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.

The eviction proceedings having been suspended pursuant to Law no. 431/1998, on 8 September 1999 the applicant served a second order to vacate the premises.

On 29 September 1999, a second notice was served on the tenant informing her that the order for possession would be enforced by a bailiff on 22 October 1999.

After two attempts, on 3 January 2000, the applicant recovered possession of his flat.

THE LAW

The applicant complains under Article 1 of Protocol No. 1 to the Convention that his inability to recover possession of his flat amounted to a violation of the right to property.

The applicant further complains under Article 6 of the Convention about the duration of the eviction proceedings and his right to access to a court.

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 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.

Furthermore, 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.

In their observations, which the Court received on 30 October 2002, the Government argued once more that the applicant 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 applicant contended that this remedy was optional rather than compulsory since the term used in section 6 of the Act was “entitled” and not “must” and 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 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 considers that 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 the application inadmissible has been established.

For these reasons, the Court unanimously

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

Santiago Q uesada Christos Rozakis Deputy Registrar President