FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63938/00 by Rosario and Giovanni CUCINOTTA against Italy

The European Court of Human Rights (First Section) , sitting on 27 June 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 26 October 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicant s are two Italian nationals, born respectively in 1951 and 1952 and living respectively in Rome and Messina .

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

The applicants are the owners of an apartment in Milan, which they had let to F.G.

In a registered letter of 29 April 1993, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 30 December 1993 and asked him to vacate the premises by that date.

The tenant told the applicants that he would not leave the premises.

In a writ served on the tenant on 30 June 1993, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.

By a decision of 28 October 1993, which was made enforceable on 8 November 1993, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 January 1996.

On 6 February 1996, the applicants served notice on the tenant requiring him to vacate the premises.

On an unspecified date, they served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 15 March 1996.

Between 15 March 1996 and 21 September 2001, the bailiff made eleven attempts to recover possession.

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

On 29 January 2002 and on 16 April 2002, the bailiff made two attempts to recover possession which proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.

On 8 May 2002, the applicants had not recovered possession of the apartement.

THE LAW

The applicants complain under Article 1 of Protocol No. 1 to the Convention that their inability to recover possession of their apartment amounted to a violation of the right to property.

The applicants further complain under Article 6 of the Convention about the duration of the eviction proceedings.

The Government argue that the applicants have not exhausted domestic remedies on the grounds that they 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 applicants’ 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