SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32662/96 by GENI Srl 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 26 July 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 applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Italian company which is located in Florence. It is represented before the Court by Mrs C. M. Cialdini, a lawyer practising in Florence.

A. The circumstances of the case

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

The applicant is an Italian company. It is the owner of an apartment in Rome, which it had let to L.L.D.L.

In a registered letter of 20 November 1984, the applicant informed the tenant that it intended to terminate the lease on expiry of the term on 31 December 1986 and asked her to vacate the premises by that date.

On 5 June 1986, it served a notice to quit on the tenant, but she refused to leave.

In a writ served on the tenant on 12 June 1986, the applicant reiterated its intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.

By a decision of 30 June 1986, which was made enforceable on 20 November 1986, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1987.

On 17 March 1990, the applicant served notice on the tenant requiring her to vacate the premises.

On 9 June 1990 it served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 15 June 1990.

Between 15 June 1990 and 25 September 1996 the bailiff made 32 attempts to recover possession, on 15 June 1990, 28 September 1990, 13 November 1990, 7 December 1990, 17 January 1991, 21 February 1991, 23 April 1991, 28 May 1991, 26 September 1991, 29 October 1991, 4 December 1991, 5 February 1992, 18 March 1992, 13 May 1992, 30 June 1992, 13 October 1992, 25 November 1992, 9 February 1993, 19 March 1993, 11 May 1993, 14 September 1993, 30 November 1993, 25 February 1994, 24 June 1994, 17 October 1994, 14 February 1995, 18 May 1995, 19 September 1995, 22 November 1995, 22 February 1996, 24 May 1996 and 25 September 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.

On 6 May 1997, the applicant sold 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 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 and about the denial of its right of access to a court.

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.

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 9 years and a half from the issue of the order for possession amounts to a violation of its right under Article 1 of Protocol No. 1. It 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.

The applicant argues that the delay in the enforcement of the order issued by the Rome Magistrate resulted in a denial of its right of access to a court.

The applicant further 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