FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 65120/01 by Antonio SIENA 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 application lodged on 12 January 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 1931 and living in Naples. He is represented before the Court by MM. U. Sebastiano and M. Provvisier, lawyers 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 he had let to M. D’A.

In a registered letter of 12 April 1984, the applicant informed the tenant that he intended to terminate the lease on expiry of the term and asked her to vacate the premises.

In a writ served on the tenant on 28 April 1984, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Naples Magistrate.

By a decision of 16 July 1984, which was made enforceable on 17 October 1984, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 June 1986.

The tenant objected to the Naples Magistrate decision and informed the applicant that she would not leave the premises.

On 16 July 1990, the applicant served notice on the tenant requiring her to vacate the premises.

On 17 September 1990, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 4 October 1990.

Between 4 October 1990 and 25 November 1991, the bailiff made three attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.

On 13 November 1992, the applicant served a second notice on the tenant requiring her to vacate the premises.

On 24 December 1992, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 8 January 1993.

Between 8 January 1993 and 16 September 1993, the bailiff made two unsuccessful attempts to recover possession.

On 16 September 1993 the tenant asked for a suspension of the enforcement proceedings.

On 16 July 1996, the applicant served a third notice on the tenant requiring her to vacate the premises.

On 2 October 1996, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 10 October 1996.

Between 10 October 1996 and 4 December 1998, the bailiff made eight unsuccessful attempts to recover possession.

Pursuant to section 6 of Law no. 431/98, the tenant asked for a suspension of the enforcement proceedings. The Naples Court of Appeal decided to suspend it until 15 October 1999.

On 9 November 1999, the applicant served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 19 November 1999.

Between 19 November 1999 and 10 March 2000, the bailiff made four unsuccessful attempts to recover possession.

On 28 February 2002, the applicant served a fourth notice on the tenant requiring her to vacate the premises.

On 17 April 2002, the applicant served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 6 May 2002.

On 2 May 2002, pursuant to section 80 of Law no. 388/00, the tenant asked for a suspension of the enforcement proceedings.

On 20 June 2002, the law-decree no. 122 postponed the enforcement of the eviction proceedings until 30 June 2003.

The applicant had not recovered possession of the apartment.

THE LAW

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

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