SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30968/96 by Mario BARONE against Italy

The European Court of Human Rights (Second Section) , sitting on 15 February 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 21 March 1996 and registered on 9 April 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, born in 1956 and living in Milan. He is represented before the Court by Mr G. Berretta, 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 he had let to C.S.

In a writ served on the tenant on 9 June 1984, the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.

By a decision of 4 July 1984, which was made enforceable on 4 September 1984, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 October 1986.

On 4 June 1987, the applicant served notice on the tenant requiring him to vacate the premises.

On 19 June 1987, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 17 July 1987.

On 6 May 1987, 2 June 1989, 25 January 1990 and 11 May 1994, the applicant made statutory declarations that he urgently required the premises as accommodation for himself.

Between 17 July 1987 and 18 April 1996, the bailiff made 41 attempts to recover possession, on 17 July 1987, 15 October 1987, 13 November 1987, 14 December 1987, 29 January 1988, 11 July 1989, 28 September 1989, 30 October 1989, 12 December 1989, 18 January 1990, 27 February 1990, 12 April 1990, 16 July 1990, 27 September 1990, 27 November 1990, 29 January 1991, 18 March 1991, 21 May 1991, 27 June 1991, 17 September 1991, 31 October 1991, 13 December 1991, 11 February 1992, 24 March 1992, 25 May 1992, 19 October 1992, 21 January 1993, 30 March 1993, 10 June 1993, 20 September 1993, 30 November 1993, 22 February 1994, 19 May 1994, 15 September 1994, 22 November 1994, 16 February 1995, 27 April 1995, 13 July 1995, 17 October 1995, 8 February 1996 and 18 April 1996.

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

On 16 May 1997, the applicant repossessed the apartment 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 argue that the applicant has not exhausted domestic remedies. They submit that he 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.

The Court recalls that it has already dismissed this objection in the Immobiliare Saffi case (see the Immobiliare Saffi judgment cited above, §§ 40-42). This exception should therefore be rejected for the same reasons.

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 in eviction proceedings (see the Immobiliare Saffi judgment cited above, §§ 62-63). The Government objections should therefore be rejected on the same grounds.

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 his apartment during 13 years from the issue of the order for possession amounts to a violation of his right under Article 1 of Protocol No. 1.

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 Milan Magistrate resulted in a denial of his right of access to a court.

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] [by a majority]

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

Erik Fribergh Christos Rozakis Registrar President