FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40453/98 by G.A. against Italy

The European Court of Human Rights (First Section) , sitting on 24 October 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr P. Lorenzen , Mrs N. Vajić , Mr E. Levits , Mr A. Kovler , Mr V. Zagrebelsky , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 6 February 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 is an Italian national, born in 1935 and living in Naples. She is represented before the Court by Mr E. Baldi , a lawyer practising in Naples.

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

The applicant is the owner of an apartment in Naples, which she had let to A.M.

In a registered letter of 27 November 1978, she informed the tenant that she intended to terminate the lease on expiry of the term on 3 June 1979 and asked him to vacate the premises by that date.

On 30 June 1980, she served a notice to quit on the tenant, but he refused to leave.

In a writ of 5 March 1981, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Naples Magistrate.

At the hearing of 5 May 1981, A.M. opposed alleging the expiry of the term on 31 January 1984. The Magistrate declared his incompetence and referred the parties to the Naples Tribunal.

By a decision of 13 February 1985, which was made enforceable on 11 March 1987, the Naples Tribunal upheld the validity of the notice to quit and ordered that the premises be vacated by 20 February 1986.

At the hearing of 21 June 1985, A.M. opposed, alleging the expiry of the term on another date.

On 12 December 1986, the Naples Tribunal rejected the appeal.

On 15 November 1989, the applicant served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 13 June 1990.

On 17 January 1990, the applicant made a statutory declaration that she urgently required the premises as accommodation for her daughter.

Between 13 June 1990 and 13 October 1997, the bailiff made twenty-six attempts to recover possession.

Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.

On 18 June 2002, the applicant’ representative informed the Court that in the meantime, the applicant had entered into a new lease with the tenant.

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 complains under Article 6 of the Convention about the duration of the eviction proceedings.

The Government argue that the applicant has not exhausted domestic remedies on the grounds that he failed to challenge the refusal of police assistance before the administrative courts.

The Court recalls that it has already dismissed this objection in the Immobiliare Saffi case (see the judgment Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 40-42, ECHR 1999-V). The Court sees no reason to depart from its previous finding. This objection should therefore be rejected.

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.

Erik Fribergh Christos Rozakis Registrar President