SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32391/96 by M.C. against Italy

The European Court of Human Rights (Second Section), sitting on 17 May 2001 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mr G. Bonello , Mrs V. Stráznická , Mr P. Lorenzen , 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 24 May 1996 and registered on 24 July 1996,

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 1913 and living in Florence. She is represented before the Court by Mrs L. Frascà, a lawyer practising in Florence.

A. The circumstances of the case

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

The applicant is the owner of three apartments in Florence, which she had let to P.U., C.G. and G.G.

1) The proceedings against P.U.

In a writ served on the tenant on 20 March 1990, the applicant informed the tenant of her intention to terminate the lease and summoned her to appear before the Florence Magistrate.

By a decision of 11 April 1990, which was made enforceable on 29 May 1990, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 31 December 1992.

On 3 December 1992, the applicant served notice on the tenant requiring her to vacate the premises.

On 12 January 1993, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 19 February 1993.

Between 19 February 1993 and 23 February 1996, the bailiff made 5 attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.

On an unspecified date in 1996, the applicant sold the apartment.

2) The proceedings against C.G.

In a writ served on the tenant on 17 February 1990, the applicant informed the tenant of her intention to terminate the lease and summoned her to appear before the Florence Magistrate.

By a decision of 7 March 1990, which was made enforceable on 23 March 1990, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 31 October 1991.

On 12 October 1991, the applicant served notice on the tenant requiring her to vacate the premises.

On 21 November 1991, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 15 January 1992.

Between 15 January 1992 and 28 May 1996, the bailiff made 7 attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.

On an unspecified date in 1996, the applicant sold the apartment.

3) The proceedings against G.G.

In a writ served on the tenant on 17 February 1990, the applicant informed the tenant of her intention to terminate the lease and summoned her to appear before the Florence Magistrate.

By a decision of 8 March 1990, which was made enforceable on 27 April 1990, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 31 January 1993.

On 3 December 1992, the applicant served notice on the tenant requiring him to vacate the premises.

On 12 January 1993, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 19 February 1993.

Between 19 February 1993 and 16 January 1996, the bailiff made 4 attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.

On an unspecified date in 1996, the applicant sold the apartment.

B. Relevant domestic law

The relevant domestic law is described in the judgment Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.

COMPLAINTS

1. The applicant complains under Article 1 of Protocol No. 1 about her inability to recover possession of her apartments.

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

THE LAW

The applicant complains that her inability to recover possession of her apartments amounted to a violation of Article 1 of Protocol No. 1, which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The applicant further complains about the duration of the eviction proceedings. Article 6 of the Convention, insofar as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

The Government argue that the applicant has not exhausted domestic remedies. They submit that he has failed to issue proceedings in the administrative courts challenging the refusal of police assistance and to raise, in the same proceedings, the constitutionality of the legislative provisions concerned.

The applicant contests the Government’s arguments. She argues that the prefectoral committee never adopted a formal decision refusing police assistance and that, at any event, the proceedings in the administrative courts would not have been effective, given the length of these proceedings before Italian courts.

The Court recalls that it has already dismissed this objection in the Immobiliare Saffi case (see the Immobiliare Saffi judgment cited above, §§ 40-42). As the Government have not submitted any new argument in support of their objection, 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 not part of the judicial process for enforcement of orders for possession, since police intervention was an administrative issue, entirely separate from and independent of the judicial process. That administrative phase can not be said to come within 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). As the Government have not submitted any new argument in support of their objections, 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 Florence Magistrate resulted in a denial of her right of access to a court. 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