SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36254/97 by Francesco DEL SOLE against Italy

The European Court of Human Rights (Second Section), sitting on 22 May 2001 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello , Mrs V. Strážnická , 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 18 March 1997 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 1947 and living in Naples. He is represented before the Court by Mr G. Tisci, a lawyer practising in Naples.

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

The applicant is the owner of an apartment in Naples, which he had let to C.E.

In a writ served on the tenant on 15 January 1987, the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Naples Magistrate.

By a decision of 13 December 1987, which was filed with the registry on 16 December 1987, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 31 December 1989.

On 30 November 1988, the tenant appealed to the Naples District Court.

By a decision of 26 October 1990, the court rejected the appeal and ordered that the premises be vacated by 30 June 1991.

On 27 December 1990, the applicant served notice of the judgment on the tenant.

On 5 July 1991, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 16 July 1991.

Between 16 July 1991 and 24 September 1992, the bailiff made 5 attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.

On 19 February 1993, the applicant made a statutory declaration that he urgently required the premises as accommodation for his father.

Between 25 February 1993 and 28 April 1998, the bailiff made 18 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 3 July 1998, the applicant repossessed the apartment with the assistance of the police.

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, §§ 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.

The applicant argues that the delay in the enforcement of the order issued by the Milan 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