SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39797/98 by Giovanni GUAZZONE and Others against Italy

The European Court of Human Rights (Second Section) , sitting on 4 October 2001 as a Chamber composed of

Mr C.L. Rozakis , President , Mr L. Ferrari Bravo, Mr G. Bonello , Mr P. Lorenzen , Mr M. Fischbach , Mrs M. Tsatsa-Nikolovska , Mr E. Levits , judges ,

and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 18 November 1997 and registered on 12 March 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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are Italian nationals, Mr Giovanni Guazzone born in 1930 and living in Fiesole , Mr Stefano Guazzone (brother) born in 1928 and living in Brufa-Torgiano and Mrs Anna Guazzone (sister) born in 1922 and living in Fiesole . They are represented before the Court by Mr A. Porta Del Lungo, a lawyer practising in Florence.

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

The applicants are the owners of an apartment in Florence, which they had let to A.R.

In a registered letter of 18 April 1991, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 31 December 1991 and asked her to vacate the premises by that date.

In a writ served on the tenant on 27 September 1991, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.

By a decision of 28 October 1991, which was made enforceable on 8 November 1991, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992.

On 25 January 1993, the applicants served notice on the tenant requiring her to vacate the premises.

On 3 March 1993, they served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 30 March 1993.

On 30 July 1993, the applicants made a statutory declaration that they urgently required the premises as accommodation for the third applicant.

Between 30 March 1993 and 23 September 1999, the bailiff made fourteen attempts to recover possession.

On 28 March 1997, the second applicant made a statutory declaration that he urgently required the premises as accommodation for his son.

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

On 2 August 1999, the tenant requested the Florence Magistrate (according to art. 6 L. 431/98) to set a fresh date for the enforcement of the order.

On 16 October 2000, the Florence Magistrate set the enforcement of the order for 15 May 2002.

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 argue that the arrangements for staggering the police assistance were an administrative issue, entirely separate from and independent of the judicial process and therefore outside the scope of Article 6.

The Court recalls that it has already held that Article 6 of the Convention is applicable to the tenants’ eviction proceedings (see the Immobiliare Saffi judgment cited above, §§ 62-63). The Court sees no reason to depart from its previous finding. This objection should therefore be rejected.

The Government maintain that the interference with the applicants’ property rights was not disproportionate.

As to the length of the enforcement proceedings, the Government maintain that the delay in providing the assistance of the police is justified by the protection of the public interest. 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 applicants argue 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 Christos Rozakis Registrar President