SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31922/96 by Teresa MICUCCI 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 29 April 1996 and registered on 17 June 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 partial decision of 27 April 2000,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Italian national living in Turin. She is represented before the Court by Mr Paolo Garetto, a lawyer practising in Turin.

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 Turin, which she had let to A.M.M.

In a writ served on the tenant on 18 September 1990, she communicated her intention to terminate the lease and summoned the tenant to appear before the Turin Magistrate.

On 22 November 1990, the tenant failed to appear before the court and the applicant asked the Magistrate to continue the proceedings in the ordinary way. By a decision of 31 March 1992, the Turin Magistrate allowed the applicant’s claim and ordered that the premises be vacated by 31 January 1993.

On 19 January 1993, the applicant made a statutory declaration that she urgently required the premises as accommodation for her son. On 15 April 1993, the Turin Magistrate judgement was made enforceable. On 3 June 1993, the applicant served notice on the tenant requiring her to vacate the premises, and, on 8 June 1993, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 13 July 1993.

Between 13 July 1993 and 8 May 1998, the bailiff made 13 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.

In 1998, the applicant recovered possession of her apartment.

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 assistance - 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 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.

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 remainder of the application admissible, without prejudging the merits of the case.

Erik Fribergh Christos Rozakis Registrar President