SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37509/97 by Antonino and Petronilla PANE 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 3 February 1997 and registered on 26 August 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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are Italian nationals, born respectively in 1931 and 1934 and living respectively in Florence and Salerno. They are represented before the Court by Mr C. Napoli, a lawyer practising in Salerno.

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

The applicants are the owners of an apartment in Positano, which they had let to G.D.

In a writ served on the tenant on 12 December 1986, the applicants communicated their intention to terminate the lease and summoned the tenant to appear before the Amalfi Magistrate.

On 30 January 1987, by a provisional decision the magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 31 March 1989. He ordered that the proceedings must continue on the merits.

By a judgment of 22 December 1989, the text of which was deposited with the registry on the same day, the Amalfi Magistrate declared the lease terminated on 31 December 1987 and confirmed that the premises must be vacated by 31 March 1989.

On 3 August 1990, the applicants served notice on the tenant requiring him to vacate the premises.

On 18 October 1990, they served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 23 October 1990.

On 23 October 1990, the bailiff made an attempt to recover possession, which proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicants were not entitled to police assistance in enforcing the order for possession. He then suspended the enforcement proceedings until the Prefect would grant the assistance of the police.

On 7 May 1996, the first applicant made a statutory declaration that he urgently required the premises as accommodation for his spouse.

On an unspecified date, the applicants resumed the enforcement proceedings.

On 18 July 1997, the tenant vacated the premises.

COMPLAINTS

1. The applicants complain under Article 1 of Protocol No. 1 about their prolonged inability to recover possession of their apartment.

2. The applicants further complain under Article 6 § 1 of the Convention about the duration of the eviction proceedings.

THE LAW

The applicants complain under Article 1 of Protocol No. 1 to the Convention that their inability to recover possession of their apartment amounted to a violation of the right to property.

The applicants further complain under Article 6 of the Convention about the duration of the eviction proceedings.

The Government argue that the applicants have not exhausted domestic remedies on the grounds that they failed to challenge the refusal of police assistance before the administrative courts.

The applicants contest 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 exception should therefore be rejected.

The Government further 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 Immobiliare Saffi judgment cited above, §§ 62-63). 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 applicants’ 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