SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33831/96 by Gabriella MUSIANI DAGNINI 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 , 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 22 February 1996 and registered on 15 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 1909 and living in Bologna. She is represented before the Court by Mr P. Ballerini Puviani, a lawyer practising in Bologna.

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 Bologna, which she had let to E.M.

In a writ served on the tenant on 27 February 1987, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 7 September 1987 and summoned him to appear before the Bologna Magistrate.

By a decision of 11 March 1987, which was made enforceable on the same day, the Bologna Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 7 September 1988.

On an unidentified date, the applicant served notice on the tenant requiring him to vacate the premises.

On 19 December 1989, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 14 March 1990.

Between 14 March 1990 and 11 October 1996, the bailiff made 18 attempts to recover possession, on 14 March 1990, 27 April 1990, 9 July 1990, 2 October 1990, 11 December 1990, 11 February 1991, 7 October 1993, 17 December 1993, 18 March 1994, 16 June 1994, 29 September 1994, 18 January 1995, 7 April 1995, 13 July 1995, 13 November 1995, 8 March 1996, 14 June 1996 and 11 October 1996.

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.

In November 1996, the applicant repossessed the premises after having reached a friendly agreement with the tenant.

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 her prolonged inability - through lack of police - to recover possession of her 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 her 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 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 she 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 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.

The applicant argues that the impossibility to repossess her apartment during 11 years from the issue of the order for possession amounts to a violation of her right under Article 1 of Protocol No. 1.

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 Milan 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