FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 61998/00 by Enzo FORTE and Anna Maria DI GIULIANO 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 , Mr G. Bonello , Mr P. Lorenzen , Mrs N. Vajić , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application lodged on 30 September 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 applicants are two Italian nationals, born respectively in 1945 and 1952 and living in Rome. Th ey are represented before the Court by Mr D. Vani , a lawyer practising in Rome.

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

V.C. was the owner of an apartment in Rome, which she had let to C.V.

In a writ served on the tenant on 9 June 1987, the owner informed the tenant of her intention to terminate the lease on expiry of the term on 4 February 1988 and summoned him to appear before the Rome Magistrate.

By a decision of 13 January 1988, 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 September 1989.

On 13 October 1989, the owner served notice on the tenant requiring him to vacate the premises.

On 4 February 1989, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 11 January 1990.

Between 11 January 1990 and 13 November 1991, the bailiff made twelve attempts to recover possession.

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

On 12 November 1991, the applicants became the owners of the apartment and pursued the enforcement proceedings.

On 2 March 1994, the applicants served notice on the tenant requiring him to vacate the premises.

On 31 March 1994, they served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 29 April 1994.

Between 29 April 1994 and 3 March 2000, the bailiff made twenty-six attempts to recover possession.

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

In the meanwhile, on 24 January 1995, the applicants made a statutory declaration that they urgently required the premises as accommodation for themselves.

On 7 April 2000, the applicants recovered possession of the apartment.

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 and about the denial of their right of access to a court.

The Government submitted that the applicants have not exhausted domestic remedies, firstly because they had failed to bring proceedings in the administrative courts challenging the refusal to provide police assistance and, secondly, because they had never challenged the justification 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 applicants argue that there was no domestic remedy and maintain that the Prefect never issued a decision in refusing to grant police assistance.

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 applicants maintain that the adjournments ordered by the bailiff were not due to procedural flaws but to the fact that he could not evict the tenant without police assistance. Such proceedings would therefore have been entirely ineffective. It would not therefore have been helpful to object to the adjournments under Article 617 of the CCP.

The Court notes that although the applicants 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 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