FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58408/00 by Giannino MISCIOSCIA against Italy

The European Court of Human Rights (First Section) , sitting on 23 May 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mr V. Zagrebelsky , Mrs E. Steiner , judges ,

and Mr E. Fribergh , Section Registrar ,

Having regard to the above application lodged on 5 May 1999,

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 Milan. He is represented before the Court by Mr M. Marino a lawyer practising in Milan.

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

The applicant is the owner of an apartment in Milan, which he had let to B.L.

In a registered letter of 11 October 1993, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 29 September 1994 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 2 May 1994, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.

By a decision of 2 June 1994, which was made enforceable on 13 June 1994, the Milan Magistrate upheld the validity of the notice to quit on 29 September 1996 and ordered that the premises be vacated by 31 December 1996.

The delay of two years is due to Law no. 359/1992, which extended for two years the expiry of the term.

On 14 February 1997, the applicant served notice on the tenant requiring her to vacate the premises.

On 26 February 1997, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 21 March 1997.

Between 21 March 1997 and 29 January 1998, the bailiff made five 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, then, decided to suspend the enforcement proceedings in order to avoid additional costs.

On an unspecified date of April 2001, the applicant recovered possession of the apartment because the tenant, who was in rent arrears since 29 December 1999, had disappeared.

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