SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33967/96 by Rosaria DE FILIPPIS 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 , Mr P. Lorenzen , Mrs M. Tsatsa-Nikolovska , Mr E. Levits , Mr A. Kovler , judges ,

and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 11 July 1996 and registered on 26 November 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 1966 and living in Milan. She is represented before the Court by Mrs C. Clerici, 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:

The applicant is the owner of an apartment in Milan, which she had let to I.V.C.

In a writ served on the tenant on 27 October 1987, the applicant informed the tenant of her intention to terminate the lease on expiry of the term on 31 December 1987 and summoned her to appear before the Milan Magistrate.

The tenant opposed the termination of the lease contesting the term of expiry.

By a judgment of 23 November 1988, which was made enforceable on 10 December 1991, the Milan Magistrate ordered that the premises be vacated by 31 December 1991.

On 2 December 1991, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.

On 9 January 1992, the applicant served notice on the tenant requiring her to vacate the premises.

On 12 February 1992, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 14 March 1992.

Between 14 March 1992 and 11 March 1996, the bailiff made 17 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 23 May 1996, the applicant repossessed the apartment with the assistance of the police.

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

The applicant complains under Article 6 § 1 of the Convention about the duration of the eviction proceedings. The applicant has not raised complain under Article 1 of Protocol No. 1 to the Convention, the Court will examine the case ex-officio under this aspect .

THE LAW

The applicant inability to recover possession of her apartment 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 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 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 be rejected.

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 th e 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