SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31916/96 by IMMOBILIARE ANBA 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 20 February 1996 and registered on 14 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 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 a company based in Milan. It is represented before the Court by 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:

The applicant is the owner of an apartment in Milan, which it had let to N.S.H.R.

In a writ served on the tenant on 19 February 1987, the applicant communicated its intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.

By a decision of 25 July 1987, the Magistrate refused to uphold the validity of the notice to quit and declined jurisdiction on account of the value of the case and indicated that the Milan District Court had jurisdiction to hear it.

On 15 September 1987, the applicant resumed the proceedings before the Milan District Court for termination of the lease expired on 29 June 1987 and vacation of the premises.

The court deliberated on 10 January 1989 and in a judgment of the same date, the text of which was deposited with the registry on 20 February 1989, allowed the applicant’s claim and ordered that the premises be vacated within six months as from the date on which the judgment would become enforceable.

On 31 May 1989, the Milan District Court judgment became enforceable.

On 11 November 1989, the applicant served notice on the tenant requiring him to vacate the premises.

On 22 November 1989, it served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 20 December 1989.

Between 20 December 1989 and 13 March 1999, the bailiff made 42 attempts to recover possession, on 20 December 1989, 26 March 1990, 7 May 1990, 22 October 1990, 14 January 1991, 25 February 1991, 9 April 1991, 20 May 1991, 27 June 1991, 19 September 1991, 24 October 1991, 28 November 1991, 16 January 1992, 25 February 1992, 9 April 1992, 15 June 1992, 29 September 1992, 22 January 1993, 23 April 1993, 9 July 1993, 11 October 1993, 17 January 1994, 11 April 1994, 20 June 1994, 20 October 1994, 23 January 1995, 27 April 1995, 24 July 1995, 23 October 1995, 29 January 1996, 28 May 1996, 26 September 1996, 19 December 1996, 27 March 1997, 24 June 1997, 30 September 1997, 11 December 1997, 12 March 1998, 28 May 1998, 24 September 1998, 15 December 1998 and 13 March 1999.

Each attempt proved unsuccessful, as, under the statutory provisions providing for the suspension or the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.

On 26 April 1999, the applicant recovered possession of the premises 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

1. The applicant complains under Article 1 of Protocol No. 1 about its prolonged inability - through lack of police assistance - to recover possession of its 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 its inability to recover possession of its 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 it 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. It 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 its apartment during 10 years from the issue of the order for possession amounts to a violation of its right under Article 1 of Protocol No. 1. Its argues that in the Italian legal system tenants are overprotected.

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 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