SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42444/98 by O.B. 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 1 December 1997 and registered on 27 July 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 national, born in Florence and living in Rome. He is represented before the Court by Mr M. Chiocci and Mrs A. Flamminii Minuto, lawyers practising in Rome.

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

The applicant is the owner of an apartment in Rome, which he had let to A.R.

The applicant informed the tenant that he intended to terminate the lease on expiry of the term on 14 January 1991 and asked him to vacate the premises by that date. The tenant told the applicant that he would not leave the premises.

In a writ served on the tenant on 3 April 1990, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate on 30 April 1990.

By a decision of 19 July 1990, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 November 1991.

On 27 November 1991, the applicant served notice on the tenant requiring him to vacate the premises.

On 15 January 1992, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 21 February 1992.

On 12 November 1993, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself.

Between 21 February 1992 and 11 January 2000, the bailiff made fifty-three attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.

At the end of January 2000, the applicant recovered possession of the apartment.

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.

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 judgment Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 62-63, 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 interference with the applicant’s 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 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 Christos Rozakis Registrar President