SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32645/96 by Massimo CASTELLO against Italy

The European Court of Human Rights (Second Section) , sitting on 5 April 2001 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mr G. Bonello , Mrs V. Strážnická , 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 11 March 1996 and registered on 19 August 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 1936 and living in Milan. He is represented before the Court by Mrs G. Minoli, a lawyer practising in Milan.

A. The circumstances of the case

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

In 1986, the applicant became the owner of an apartment, which had previously been let to A.F.

In a registered letter of 23 April 1990, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1990 and asked him to vacate the premises by that date.

In a writ served on the tenant on 23 May 1990, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.

By a decision of 12 June 1990, which was made enforceable on 21 June 1990, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1991.

On 9 December 1991, the applicant served notice on the tenant requiring him to vacate the premises.

On 13 January 1992, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 14 February 1992.

Between 14 February 1992 and 25 March 1999, the bailiff made 25 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 27 July 1999, pursuant to Section 6 of Law No. 431/98, the tenant asked the Milan District Court to set a new date for the enforcement of the order for possession. The date was set for 2 April 2001.

B. Relevant domestic law

The relevant domestic law is described in the judgment Immobiliare Saffi v. Italy [GC], no. 22774/93, 28.7.99, §§ 18-35, ECHR-V.

COMPLAINTS

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

2. In his reply to the Government observations, he further complains about his prolonged inability to recover possession of his apartment under Article 1 of Protocol No. 1.

THE LAW

The applicant 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 Court has also examined the application under 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.”

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. In any event, the Government stress that following the entry into force of Law no. 431 of 9 December 1998, the Prefect is no longer competent to determine the order of priority for the enforcement of the evictions. The date of enforcement should now be set by the District Court.

The Government argue that the delay complained cannot be attributable to the judicial authorities. Further, 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. As the right to a court, the Government allege that the applicant was given an enforceable decision in 1990: thus he was not denied of his right of access to a court.

The applicant contests the Government’s argument. He argues that the prefectoral committee never adopted a formal decision refusing police assistance and to raise, in the same proceedings, the constitutionality of the legislative provisions concerned. He argues, further, 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 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 objection, the Court sees no reason to depart from its previous finding. This exception should therefore be rejected.

As regards Article 1 of Protocol No. 1, 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.

The applicant, in its observations, argues that there is a “violation of his right to a peaceful enjoyment of his possessions”.

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