SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32644/96 by Bruna SANELLA 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 6 March 1996 and registered on 19 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 1928 and living in Milan.

She is represented before the Court by Mrs Giovanna Benedetti , 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 she had let to S.S.

In a registered letter of 19 June 1987, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1987 and asked him to vacate the premises by that date.

In a writ served on the tenant on 13 October 1988, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.

By a decision of 3 November 1988, which was made enforceable on 10 November 1988, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 28 September 1989.

On 22 September 1989, the applicant served notice on the tenant requiring him to vacate the premises.

On 12 October 1989, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 10 November 1989.

Between 10 November 1989 and 18 June 1996, the bailiff made 26 attempts to recover possession, on 10 November 1989, 25 January 1990, 27 March 1990, 24 May 1990, 12 October 1990, 10 January 1991, 23 May 1991, 12 July 1991, 19 November 1991, 4 February 1992, 3 March 1992, 4 May 1992, 13 July 1992, 19 October 1992, 18 December 1992, 8 March 1993, 27 May 1993, 4 October 1993, 4 February 1994, 6 May 1994, 30 September 1994, 23 January 1995, 9 June 1995, 20 October 1995, 6 February 1996 and 18 June 1996.

Each attempt 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.

On 26 June 1996, the tenant vacated the premises.

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 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 nine years from the issue of the order for possession amounts to a violation of her right under Article 1 of Protocol No. 1. She further stresses that she could repossess her apartment only because the tenant spontaneously vacated it.

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 in the enforcement of the order issued by the Milan Magistrate amounts to a violation of her right 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,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Erik Fribergh Christos Rozakis Registrar President