SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35001/97 by Ilaria FRANCESCHETTI 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 A.B. Baka , Mr P. Lorenzen , Mrs M. Tsatsa-Nikolovska , Mr E. Levits , Mr A. Kovler, judges , Mrs M. Del Tufo , ad hoc judge ,

and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 22 November 1995 and registered on 20 February 1997,

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 1941 and living in Florence.

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

In 1964, the applicant inherited from her father the title over an apartment in Florence; her mother L. inherited a life and controlling interest in that apartment, i.e. the right to use it and derive any benefits therefrom. L. let the apartment to D.D.C. The lease was due to expire on 31 December 1987. In a writ served on the tenant on 9 January 1986, L. communicated her intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.

On 12 February 1986, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1988. That decision was made enforceable on 21 March 1988.

On 5 October 1990, L. served notice on the tenant requiring him to vacate the premises. On 14 November 1990, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 21 November 1990.

Between 21 November 1990 and 19 November 1996, the bailiff made 11 attempts to recover possession. Each attempt proved unsuccessful, as L. was never granted the assistance of the police in enforcing the order for possession.

In the meantime, on 28 February 1991, the applicant in her capacity as the owner of the apartment, made a statutory declaration that she urgently required the premises as accommodation for her son.

On 28 November 1996 L. died and the applicant acquired the interest in the apartment. She pursued the proceedings in her own name.

Between 17 March 1997 and 22 January 1999, the bailiff made five other attempts to recover possession, which attempts were unsuccessful due to the lack of police assistance.

Under the newly enacted Law 431/1998, the tenant proposed to the applicant that they enter into a new lease. On 1 July 1999, the applicant informed the tenant that she intended to repossess the apartment.

On 27 July 1999, the tenant requested the Florence District Court, under Section 6 of Law 431/98, to set a new date for the eviction.

On 27 December 1999, reaching a friendly agreement with the tenant, the applicant recovered possession of her apartment.

COMPLAINTS

1. The applicant complains under Article 1 of Protocol No. 1 about her prolonged inability to recover possession of her apartment.

2. The applicant further complains under Article 6 § 1 of the Convention about the duration of the eviction proceedings and her right to access to a Court.

THE LAW

The applicant complains under Article 1 of Protocol No. 1 to the Convention that her inability to recover possession of her 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 the denial of her right to access to a Court.

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 out of 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 exception should therefore also be rejected.

On the merits, 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.

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 delay in the enforcement of the order issued by the Florence Magistrate resulted in a denial of her right of access to a 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