SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36249/97 by Massimo ROSA 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 G. Bonello , Mr M. Fischbach , 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 28 October 1996 and registered on 26 May 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 1965 and living in Rome. He is represented before the Court by Mr P. Parlapiano , a lawyer practising in Rome.

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

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

In a writ served on the tenant on 16 September 1991, the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.

By a decision of 11 March 1992, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 31 July 1992.

On 22 September 1992, the applicant served notice on the tenant requiring him to vacate the premises.

On 22 October 1992, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 27 November 1992.

On 21 November 1992, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself.

Between 27 November 1992 and 11 March 1997, 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 8 April 1997, the applicant repossessed the premises.

COMPLAINTS

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

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

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 and the denial of his right of 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, 28.7.99, §§ 62-63, ECHR-V). The Court sees no reason to depart from its previous finding. This objection 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.

The applicant argues that the delay in the enforcement of the order issued by the Rome Magistrate resulted in a denial of his right of access to a 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