SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32648/96 by Tullio TENTORI MONTALTO 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 5 April 1996 and registered on 19 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 national living in Rome. He is represented before the Court by Mr P. Tentori Montalto, a lawyer practising in Rome.

A. The circumstances of the case

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

A.K. was the owner of an apartment in Rome, which he had let to S.C.

In a registered letter of 24 December 1986, he informed the tenant that he intended to terminate the lease on expiry of the term on 30 June 1987 and asked him to vacate the premises by that date.

On 23 May 1988, the applicant acquired the use ( usufrutto ) of the apartment.

In a writ served on the tenant on 21 June 1988, the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.

By a decision of 5 December 1988, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 5 December 1989.

On 31 January 1990, the applicant served notice on the tenant requiring him to vacate the premises.

On 7 March 1990, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 18 April 1990.

Between 18 April 1990 and 1 February 1994, the bailiff made 18 attempts to recover possession, on 18 April 1990, 7 June 1990, 20 September 1990, 7 November 1990, 12 December 1990, 25 February 1991, 19 April 1991, 24 May 1991, 24 September 1991, 25 October 1991, 3 December 1991, 30 April 1992, 30 September 1992, 10 November 1992, 3 February 1993, 27 July 1993, 22 September 1993 and 1 February 1994.

On 12 February 1994, the applicant made a statutory declaration that he urgently required the premises as accommodation for his son.

Between 30 June 1994 and 7 March 1997, the bailiff made 12 attempts to recover possession, on 30 June 1994, 19 October 1994, 2 December 1994, 10 March 1995, 16 June 1995, 27 September 1995, 12 December 1995, 22 February 1996, 16 May 1996, 9 August 1996, 7 February 1997 and 7 March 1997.

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

On 9 May 1997, the applicant repossessed 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 his prolonged inability - through lack of police assistance - to recover possession of his 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 his inability to recover possession of his 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 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 his apartment during 8 years from the issue of the order for possession amounts to a violation of his right under Article 1 of Protocol No. 1. He argues that in the Italian legal system tenants are overprotected. Despite the fact that he had made a statutory declaration that he urgently required the premises as accommodation for his son, he could repossess the apartment only 8 years 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 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