SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33943/96 by GEFIMA s.r.l . against Italy

The European Court of Human Rights (Second Section) , sitting on 29 June 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr A.B. Baka, Mr B. Conforti, Mr G. Bonello, 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 24 September 1996 and registered on 22 November 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 a company having its registered seat in Rome.

It is represented before the Court by Mr Claudio Silvi , 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.

Mrs I.I. was the owner of an apartment in Rome, which she had let to A.P.

In a writ served on the tenant on 4 November 1983, Mrs I.I. communicated her intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.

By a decision of 21 January 1984, 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 31 December 1984.

On 22 January 1986, Mrs I.I. served notice on the tenant requiring her to vacate the premises. On 30 May 1986, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 14 July 1986.

Between 14 July 1986 and 19 June 1990, the bailiff made 16 attempts to recover possession, on 14 July 1986, 9 October 1986, 13 November 1986, 7 April 1987, 6 May 1987, 2 June 1987, 15 July 1987, 23 September 1987, 29 October 1987, 2 December 1987, 21 July 1989, 28 September 1989, 20 October 1989, 13 December 1989, 24 January 1990 and 19 June 1990.

On 24 September 1990, the applicant became the owner of the apartment.

Between 4 October 1990 and 25 September 1996, the bailiff made 17 attempts to recover possession, on 4 October 1990, 28 November 1990, 13 February 1991, 10 April 1991, 28 May 1991, 4 July 1991, 25 September 1991, 24 June 1994, 28 September 1994, 14 December 1994, 24 March 1995, 28 June 1995, 28 September 1995, 14 December 1995, 13 March 1996, 6 July 1996 and 25 September 1996.

As from 25 October 1996, the applicant intervened in the enforcement proceedings.

Between 12 December 1996 and 21 July 1999, the bailiff made 10 attempts to recover possession, on 12 December 1996, 12 March 1997, 11 June 1997, 25 September 1997, 12 December 1997, 13 March 1998, 24 September 1998, 28 November 1998, 26 January 1999 and 21 July 1999.

Each attempt to recover possession of the apartment 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.

Following the entry into force of Law no. 431 of 1998, on 24 July 1999 the tenant asked the Rome District court to set a fresh date for the eviction.

The Rome District court fixed the eviction for 19 May 2000.

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 about its prolonged inability - through lack of police assistance - to recover possession of its apartment.

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

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, in any event, the proceedings in the administrative courts would not have been effective.

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 applicant argues that the enforcement of a magistrate’s order is to be considered part of the judicial process. Otherwise, the guarantees under Article 6 of the Convention would be illusory.

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.

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.

The applicant argues that the impossibility to repossess its apartment during ten years amounts to a violation of its 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