SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32671/96 by F.B. & G.F. 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 8 August 1996 and registered on 20 August 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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are Italian nationals, born in 1938 and 1940, living in Milan. They are represented before the Court by Mrs L. Virando, 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 applicants are the owners of an apartment in Milan, which they had let to R.P. and S.C.S.

In a writ served on the tenants on 27 June 1988, the applicants communicated their intention to terminate the lease and summoned the tenants to appear before the Milan Magistrate.

By a decision of 13 July 1988, which was made enforceable on 6 September 1988, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 13 July 1989.

On 10 April 1990, the applicants made a statutory declaration that they urgently required the premises as accommodation for their children.

On 24 May 1990, the applicants served notice on the tenants requiring them to vacate the premises.

On 3 June 1990, they served notice on the tenants informing them that the order for possession would be enforced by a bailiff on 13 July 1990.

Between 13 July 1990 and 11 December 1995, the bailiff made 25 attempts to recover possession, on 13 July 1990, 25 October 1990, 27 November 1990, 14 January 1991, 18 February 1991, 18 April 1991, 18 June 1991, 30 September 1991, 28 November 1991, 20 January 1992, 31 March 1992, 21 April 1992, 29 June 1992, 17 December 1992, 11 March 1993, 17 May 1993, 30 September 1993, 21 December 1993, 1 April 1994, 14 June 1994, 17 October 1994, 17 January 1995, 25 May 1995, 28 September 1995 and 11 December 1995.

Each attempt proved unsuccessful, as the applicants were never granted the assistance of the police in enforcing the order for possession.

On 27 February 1996, the applicants repossessed the 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 applicants complain under Article 1 of Protocol No. 1 about their prolonged inability - through lack of police assistance - to recover possession of their apartment.

2. The applicants further complain under Article 6 § 1 of the Convention about the duration of the eviction proceedings and about the denial of its right of access to a court.

THE LAW

The applicants complain that their inability to recover possession of their 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 applicants further complain 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 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 applicants’ property rights was not disproportionate.

The applicants argue that the impossibility to repossess their apartment during 6 years and a half from the issue of the order for possession amounts to a violation of their right under Article 1 of Protocol No. 1. They argue that in the Italian legal system tenants are overprotected. Despite the fact that they had made a statutory declaration that they urgently required the premises as accommodation for their daughters, they could repossess the apartment only 6 years and a half after the date set by the magistrate.

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 applicants argue that the delay in the enf orcement of the order issued by the Milan Magistrate resulted in a denial of their right of access to a court. The applicants argue 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