FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 66292/01 and 66299/01 by Lucilla PETRINI against Italy

The European Court of Human Rights (First Section) , sitting on 10 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 applications both lodged on 7 February 2001.

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 1929 and living in Rome. Sh e is represented before the Court by Mrs L. Grenga , a lawyer practising in Rome.

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

The applicant is the owner of two apartments in Rome, which she had let respectively to A.O. and D.D.S.

1 . Application no. 66292/01

In a registered letter of 15 July 1992, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 January 1993 and asked her to vacate the premises by that date.

The tenant told the applicant that she would not leave the premises.

In a writ served on the tenant on 23 June 1993, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.

By a decision of 24 March 1994, 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 31 July 1995.

On 14 September 1995, the applicant served notice on the tenant requiring her to vacate the premises.

On 3 October 1995, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 27 October 1995.

Between 27 October 1995 and 6 July 2001, the bailiff made seventeen attempts to recover possession.

Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.

The applicant has not recovered possession of the apartment yet.

2 . Application no. 66299/01

In a writ served on the tenant on 5 May 1989, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 30 November 1989 and asked him to vacate the premises by that date. She also summoned the tenant to appear before the Rome Magistrate.

By a decision of 25 November 1989, 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 November 1990.

On 22 November 1991, the applicant served notice on the tenant requiring him to vacate the premises.

On 17 December 1991, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 13 February 1992.

Between 13 February 1992 and 31 July 2001, the bailiff made thirty-three attempts to recover possession.

Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.

The applicant has not recovered possession of the apartment yet.

THE LAW

The applicant complains under Article 1 of Protocol No. 1 to the Convention that her inability to recover possession of her apartments 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 about the denial of her right of access to a court.

The Government submitted that the applicant had not exhausted domestic remedies, firstly because she had failed to bring proceedings in the administrative courts challenging the refusal to provide police assistance and, secondly, because she had never challenged the lawfulness of the adjournments ordered by the bailiff by lodging an application under Article 617 of the Code of Civil Procedure (“CCP”) which deals with objections to enforceable acts. With regard to the first objection of non-exhaustion, 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.

With regard to the second objection of non-exhaustion, the Court notes that although the applicant could have applied to the judge responsible for enforcement proceedings challenging the adjournments by the bailiff if they had been unlawful, in the instant case the bailiff had not acted unlawfully but could not enforce the eviction order without police assistance. Accordingly, since an objection cannot be lodged against a decision not to provide police assistance, it cannot be deemed to be an effective remedy. Furthermore, the Government have not cited any decisions of the Italian courts showing otherwise. 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 applications raise complex and serious issues which require a determination on the merits. It follows that they cannot be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the applications inadmissible has been established.

For these reasons, the Court unanimously

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

Erik Fribergh Christos Rozakis Registrar President