FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41479/98 by ISTITUTO NAZIONALE CASE S.r.l . against Italy

The European Court of Human Rights (First Section) , sitting on 7 May 2002 as a Chamber composed of

Mrs F. Tulkens , President , Mr P. Lorenzen , Mrs N. Vajić , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , judges ,

and Mr E. Fribergh , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 26 February 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 limited company, settled in Naples. It is represented before the Court by Mr E. Baldi , a lawyer 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 it had let to B.L.

On an unspecified date, the applicant informed the tenant that it intended to terminate the lease on expiry of the term on 31 December 1983 and asked him to vacate the premises by that date.

In a writ served on the tenant on 9 March 1984, the applicant reiterated its intention to terminate the lease and summoned the tenant to appear before the Naples Magistrate.

The Magistrate declared its incompetence and sent the parties before the Naples Tribunal.

By a decision of 8 July 1988, the Tribunal fixed the expiry of the term for 31 December 1983, which was extended to 28 June 1989.

On 12 November 1990, the applicant served notice on the tenant requiring him to vacate the premises.

On 4 February 1990, it served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 19 February 1991.

Between 19 February 1991 and 9 October 1997, the bailiff made twenty-eight attempts to recover possession.

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

On an unspecified date of September 1998, the applicant recovered possession of the apartment.

THE LAW

The applicant complains under Article 1 of Protocol No. 1 to the Convention that its inability to recover possession of its 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.

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.

The applicant argues that the refusal of the administration to enforce the order issued by the magistrate has interfered with the power of the judiciary.

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 Françoise Tulkens Registrar President