SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33113/96 by Luca D’OTTAVI against Italy

The European Court of Human Rights (Second Section) , sitting on 22 March 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 30 May 1995 and registered on 23 September 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 1967 and living in Cave. He is represented before the Court by Mr Sebastiano Russo, a lawyer practising in Rome.

A. The circumstances of the case

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

F.D. was the owner of an apartment in Rome, which he had let to A.C.

In a writ served on the tenant on 20 October 1987, he communicated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.

By a judgment of 30 April 1990, the text of which was deposited with the registry on 3 May 1990, the Rome Magistrate declared termination of the lease and ordered that the premises be vacated by 30 November 1990. The judgment was made enforceable on 24 September 1990.

On 17 January 1991, F.D. served notice on the tenant requiring her to vacate the premises. On 28 February 1991, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 15 April 1991.

Between 15 April 1991 and 27 May 1993, the bailiff made 13 attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, F.D. was not entitled to police assistance in enforcing the order for possession.

On an unspecified date the applicant became the owner of the apartment.

On 28 February 1994, he served notice on the tenant requiring her to vacate the premises.

On 3 May 1994, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 10 May 1994.

Between 10 May 1994 and 1 December 1998, the bailiff made 24 attempts to recover possession, on 10 May 1994, 17 June 1994, 21 July 1994, 5 October 1994, 10 November 1994, 24 January 1995, 21 March 1995, 7 June 1995, 4 September 1995, 23 November 1995, 6 February 1996, 3 May 1996, 24 July 1996, 16 October 1996, 4 December 1996, 13 February 1997, 22 April 1997, 24 June 1997, 2 September 1997, 4 December 1997, 4 March 1998, 4 June 1998, 3 September 1998 and 1 December 1998.

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.

Pursuant to Section 6 of Law no. 431 of 9 December 1998, the enforcement proceedings were suspended.

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 1 of Protocol No. 1 about his prolonged inability - through lack of police assistance - 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 that his inability to recover possession of his 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 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. He 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 objection, 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.

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 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