SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34412/97 by Franca CICCARIELLO 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 26 December 1996 and registered on 9 January 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 1946 and living in Naples. She is represented before the Court by Mr G. Romano, a lawyer practising in Benevento.

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 she had let to L.T.

In a writ served on the tenant on 24 October 1986, the applicant communicated her intention to terminate the lease and summoned the tenant to appear before the Naples Magistrate.

On 3 November 1986, the Naples Magistrate did not uphold the validity of the notice to quit and declined jurisdiction on account of the value of the case.

On 11 November 1986, the applicant resumed the proceedings before the Naples District Court. In a judgment of 10 July 1987, deposited with the registry on 22 July 1987, the court declared that the lease would terminate on 4 November 1987 and ordered that the premises be vacated by 31 December 1988.

On 20 February 1992, the applicant served notice on the tenant requiring him to vacate the premises.

On 8 April 1992, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 29 April 1992.

On 28 April 1992, the applicant made a statutory declaration that she urgently required the premises as accommodation for her daughter.

On 29 April 1992 and 12 February 1993, the bailiff made two 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.

Thereafter, the applicant decided not to pursue the enforcement proceedings, in order to avoid useless costs, given the lack of prospects of obtaining the assistance of the police.

On 27 June 1995, the applicant served again notice on the tenant requiring him to vacate the premises.

On 5 July 1995, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 24 July 1995.

Between 24 July 1995 and 7 October 1998, the bailiff made twelve 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.

On 28 October 1998, the tenant vacated the premises.

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 that the duration of the eviction proceedings resulted in a denial of her right of access to a court.

The Government argue that the applicant has not exhausted domestic remedies on the grounds that she failed to challenge the refusal of police assistance before the administrative courts.

The applicant contests the Government’s arguments arguing that the prefectoral committee never adopted a formal decision refusing police assistance.

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.

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.

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