SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37242/97 by Luciano CARAMANTI 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 30 April 1997 and registered on 4 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 applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Italian national, born in 1932 and living in Rome. He is represented before the Court by Mr M. Caramanti, a lawyer practising in Rome.

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

The applicant is the owner of an apartment in Rome, which he had let to N.S.

In a writ served on the tenant on 29 July 1986, the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.

By a decision of 30 January 1987, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 December 1987.

On 19 December 1987, the applicant served notice on the tenant requiring her to vacate the premises.

On 26 January 1988, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 25 February 1988.

Between 25 February 1988 and 15 September 1998, the bailiff made 35 attempts to recover possession.

Each attempt proved unsuccessful, as, under the statutory provisions providing for the suspension or the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.

On 4 December 1998, the tenant vacated 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.

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.

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 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 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 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 refusal of the administration to enforce the order issued by the magistrate has interfered with the power of the judiciary.

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