SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31260/96 by Wilma LAMPERI BALENCI against Italy

The European Court of Human Rights (Second Section), sitting on 7 September 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr A.B. Baka, Mr B. Conforti, Mr G. Bonello, Mr P. Lorenzen, Mrs M. Tsatsa-Nikolovska, 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 13 November 1995 and registered on 30 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,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Italian national, born in 1930 and living 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 the owner of an apartment in Florence, which she had let to M.N.

In a registered letter of 26 July 1984, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 January 1985 and asked him to vacate the premises by that date.

In a writ served on the tenant on 31 December 1984, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.

By a decision of 9 December 1985, which was made enforceable on 3 January 1986, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 January 1986.

On 11 April 1986, the applicant served notice on the tenant requiring him to vacate the premises.

On 12 May 1986 she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 23 May 1986.

Between 23 May 1986 and 3 November 1998, the bailiff made 28 attempts to recover possession, on 23 May 1986, 16 September 1986, 9 December 1986, 18 May 1987, 20 October 1987, 9 March 1988, 17 October 1988, 16 March 1989, 20 September 1989, 20 March 1990, 10 October 1990, 20 February 1991, 24 September 1991, 11 February 1992, 8 September 1992, 28 January 1993, 18 May 1993, 12 January 1994, 24 May 1994, 15 December 1994, 23 May 1995, 12 December 1995, 9 May 1996, 13 November 1996, 2 April 1997, 6 November 1997, 27 March 1998 and 3 November 1998.

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 1 April 1999, the applicant recovered possession of her apartment.

B. Relevant domestic law

The relevant domestic law is described in the judgment Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V, to be published.

COMPLAINTS

1. The applicant complains about her prolonged inability - through lack of police assistance - to recover possession of her apartment.

2. The applicant further complains about the duration of the eviction proceedings.

THE LAW

The applicant complains that her inability to recover possession of her 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 she 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 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 objections, the Court sees no reason to depart from its previous finding. This exception should therefore also be rejected.

The applicant argues that the impossibility to repossess her apartment during eleven years from the issue of the order for possession amounts to a violation of her 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. 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 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