FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 64009/00 by Daniela CAPELLINI against Italy

The European Court of Human Rights (First Section), sitting on 11 March 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mrs N. Vajić , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky, judges ,

and Mr S. Q uesada , Deputy Section Registrar ,

Having regard to the above application lodged on 29 November 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Daniela Capellini, is an Italian national who was born in 1956 and lives in Milan. She was represented before the Court by Mr M.A.de Stasio, a lawyer practising in Milan.

The respondent Government were represented by their Agents, 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.

A.C., the applicant's father, was the owner of an apartment in Milan, which he had let to V.S.

In a registered letter of 9 November 1990, the applicant's father informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1991 and asked him to vacate the premises by that date.

The tenant told the applicant's father that he would not leave the premises.

In a writ served on the tenant on 22 January 1991, the applicant's father reiterated his intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.

By a decision of 21 March 1991, which was made enforceable on 26 March 1991, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992.

On 11 January 1993, the applicant's father served notice on the tenant requiring him to vacate the premises.

On 25 February 1993, he informed the tenant that the order for possession would be enforced by a bailiff on 19 March 1993.

Between 19 March 1993 and 18 April 2000, the bailiff made nineteen attempts to recover possession.

Each attempt proved unsuccessful, as the applicant's father and then the applicant were not entitled to police assistance in enforcing the order for possession.

In the meanwhile, on 24 August 1993, the applicant's father died and the applicant inherited the apartment.

On 14 February 2000, she became party to the proceedings.

On 15 June 2000, the applicant recovered possession of the apartment.

Pursuant to the Pinto Law, on 3 April 2002 the applicant applied to the Brescia Court of Appeal. By decision of 12 June 2002, the Court of Appeal rejected the applicant's claim. As far as the conduct of the relevant authorities were concerned, the Court of Appeal underlined that the behaviour of the Prefect was in conformity with the criteria fixed by the national law and that after the Law no. 431/98 the expulsion was suspended by other laws. So the delays derived from factum principis and were therefore irrelevant for the purpose of the Pinto Law.

The applicant did not appeal to the Court of Cassation.

THE LAW

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

The applicant further complained under Article 6 of the Convention about the duration of the eviction proceedings. Following the entry into force of the Pinto law, and since she did not pursue the complaint under Article 6 of the Convention before the Court of Cassation, the applicant did not want to pursue this complaint before the Court either but relied entirely on Article 1 of Protocol No. 1.

The Government consider that the applicant cannot claim to be a “victim”, within the meaning of Article 34 of the Convention, of the alleged violations of Article 1 of Protocol No. 1 and Article 6 of the Convention because she only became party to the proceedings on 14 February 2000.

The applicant sustains that from the death of her father she de facto became a party to the proceedings even if this only resulted in a later formal act in February 2000. She underlined that it was obviously not her father who sent the bailiff from September 1993.

As far as expulsion of tenant cases are concerned, the Court recalls that in order to be able to claim to be a “victim”, an applicant must have a title over the apartment in question and must have been a party in the proceedings, even if it is at a later stage (see, mutatis mutandis , I.F. v. Italy (dec.), no. 31930/96).

In the present case, the Court observes that the applicant fulfilled both criteria.

In these circumstances, the Court considers that the applicant can claim to be a “victim”, and therefore dismisses that objection.

The Government objected that the applicant had failed to exhaust domestic remedies as she had not sought judicial review in the administrative courts of the refusal to provide police assistance.

The Court notes that it has previously had occasion to dismiss this 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.

In their observations, which the Court received on 30 October 2002, the Government argued 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 does not share the Government's view that, because the complaint under Article 1 of Protocol No. 1 originated in the length of the proceedings, the Pinto Law would afford a remedy for it.

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.

As regards the complaint under Article 1 of Protocol No. 1 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. 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. Consequently, there is no appearance of a violation of Article 1 of Protocol No. 1.

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 takes note of the fact that the applicant does not intend to pursue the complaint under Article 6 of the Convention. As regards the complaint as submitted under Article 1 of Protocol No 1 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