SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32392/96 by D.P. and L.L. 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 , [Note1]

and Mr E. Fribergh, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 13 May 1996 and registered on 24 July 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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are Italian nationals, born respectively in 1943 and 1919 and living in Ponsacco ( Pisa ).

They are represented before the Court by Mr Lando Ferretti , a lawyer practising in Ponsacco ( Pisa ).

A. The circumstances of the case

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

The applicants are the owners of an apartment in Ghezzano di San Giuliano Terme ( Pisa ) which had been let to V.F.

In a registered letter of 5 December 1990, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 30 June 1991 and asked him to vacate the premises by that date.

In a writ served on the tenant on 23 December 1991, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Pisa Magistrate.

By a decision of 31 January 1992, which was made enforceable on 6 February 1992, the Pisa Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 January 1993.

On 27 January 1994, the applicants served notice on the tenant requiring him to vacate the premises.

On 14 February 1994, they served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 28 February 1994.

Between 28 February 1994 and 25 April 1998 the bailiff made 12 attempts to recover possession, on 28 February 1994, 28 June 1994, 18 October 1994, 22 March 1995, 20 July 1995, 23 October 1995, 11 January 1996, 29 April 1996, 4 November 1996, 30 April 1997, 19 November 1997 and 25 April 1998.

Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicants were not entitled to police assistance in enforcing the order for possession.

In June 1998, the applicants repossessed their 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 applicants complain about their prolonged inability - through lack of police assistance - to recover possession of their apartment.

2. The applicants further complain about the duration of the eviction proceedings.

THE LAW

The applicants complain that their inability to recover possession of their 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 applicants further complain 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 applicants have not exhausted domestic remedies. They submit that they have 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 applicants contest the Government’s arguments. They argue that they do not contest the legality of the Prefect’s decision refusing police assistance.

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 applicants argue that the impossibility to repossess their apartment during six years and a half amounts to a violation of their right under Article 1 of Protocol No. 1. They further argue that the exceptional circumstances related to the housing problem in Italy do not justify the sacrifice of landlords ‘rights. They further stress that their apartment was not liberated with the assistance of the police, but was spontaneously vacated by the tenant.

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 applicants argue that their right to a court has been violated and that the length of the overall proceedings, amounting to 6 years and a half, was excessive.

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

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)