SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39735/98 by Oriana FEGATELLI 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 14 July 1997 and registered on 9 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 national, born in Rome in 1945 and living in Rome. She is represented before the Court by Mrs G. Mazza Ricci , a lawyer practising in Rome.

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

A.G.D. was the owner of an apartment in Rome, which she had let to V.P.

A.G.D. informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1983, and asked him to vacate the premises by that date.

By a decision of 21 October 1986, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 April 1987.

On 13 November 1986, the applicant became the owner of the apartment and pursued the enforcement proceedings.

On 8 May 1987, she served a notice to quit on the tenant, but he refused to leave.

On 20 May 1987 she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 7 July 1987.

On 3 April 1989, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.

Between 7 July 1987 and 1 December 1999, the bailiff made forty-nine 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.

After reaching an agreement with the tenant, on 18 December 1999, the applicant recovered possession of her apartment.

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 that the delay in the enforcement of the order issued by the Rome Magistrate 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 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 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 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 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