SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32659/96 by Annalisa GUGLIELMI against Italy

The European Court of Human Rights (Second Section) , sitting on 22 June 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr A.B. Baka, Mr B. Conforti, 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 4 June 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 national, born in 1964 and living in Rome.

She is represented before the Court by Riccardo Andriani , 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.

The applicant is the owner of an apartment in Rome, which she had let to M.S.A.

In a registered letter of 2 February 1983, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1983 and asked her to vacate the premises by that date.

In a writ served on the tenant on 22 November 1983, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.

By a decision of 13 February 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 13 February 1985.

On an unidentified date, the applicant served notice on the tenant requiring her to vacate the premises.

On an unidentified date, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 18 April 1986.

Between 18 April 1986 and 2 December 1998, the bailiff made 68 attempts to recover possession, on 18 April 1986, 28 May 1986, 2 July 1986, 18 September 1986, 10 October 1986, 13 November 1986, 14 April 1987, 19 May 1987, 22 June 1987, 22 September 1987, 26 October 1987, 30 November 1987, 29 January 1988, 3 March 1988, 19 October 1988, 31 January 1989, 19 May 1989, 22 June 1989, 27 July 1989, 25 October 1989, 6 December 1989, 2 February 1990, 14 March 1990, 3 May 1990, 7 June 1990, 13 July 1990, 9 October 1990, 14 November 1990, 23 January 1991, 5 March 1991, 24 April 1991, 5 June 1991, 5 July 1991, 5 September 1991, 16 October 1991, 5 November 1991, 21 November 1991, 15 January 1992, 18 February 1992, 9 June 1992, 8 October 1992, 10 February 1993, 14 July 1993, 12 October 1993, 18 November 1993, 11 February 1994, 17 March 1994, 26 April 1994, 21 June 1994, 22 July 1994, 18 October 1994, 6 December 1994, 8 March 1995, 6 June 1995, 4 September 1995, 6 December 1995, 6 March 1996, 6 June 1996, 4 September 1996, 5 December 1996, 6 March 1997, 5 June 1997, 2 September 1997, 3 December 1997, 3 March 1998, 2 June 1998, 2 September 1998 and 2 December 1998.

In the meantime, on 7 February 1996, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.

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

At the beginning of 2000, the tenant died and on 4 February 2000 the applicant repossessed 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, CEDH-V.

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 applicant contests the Government’s arguments. She argues that the staggering of eviction was decided by the Prefect in compliance with the legislation. Therefore, 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 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 her apartment during fifteen 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 applicant argues that the delay of fifteen years in the enforcement of the order for possession violates her right to a court. She stresses that she could repossess the apartment only after the death of the tenant.

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