SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32388/96 by Maria Civita PAVESE 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 27 May 1995 and registered on 23 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 applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Italian national, born in 1919 and living in Rome.

She is represented before the Court by Mr Luigi Sabatini , 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 U.F.

In a registered letter of 23 December 1982, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 30 June 1983 and asked him to vacate the premises by that date.

In a writ served on the tenant on 4 February 1983, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.

By a decision of 8 March 1983, 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 30 June 1984.

On 26 November 1984 and again on 12 April 1985, the applicant served notice on the tenant requiring him to vacate the premises.

On 28 June 1985, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 9 July 1985.

Between 9 July 1985 and 10 May 1994, the bailiff made 39 attempts to recover possession, on 9 July 1985, 13 December 1985, 27 January 1986, 28 February 1986, 8 April 1986, 12 May 1986, 19 June 1986, 28 July 1986, 7 October 1986, 13 November 1986, 9 April 1987, 29 May 1987, 22 October 1987, 21 December 1987, 23 February 1988, 19 October 1988, 15 February 1989, 8 June 1989, 25 July 1989, 28 November 1989, 23 February 1990, 18 May 1990, 7 September 1990, 4 November 1990, 6 March 1991, 23 April 1991, 2 July 1991, 11 October 1991, 10 December 1991, 26 February 1992, 24 April 1992, 2 July 1992, 13 October 1992, 19 January 1993, 27 April 1993, 12 July 1993, 17 November 1993, 22 February 1994 and 10 May 1994.

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 10 November 1995, 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.

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 twelve 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 in the enforcement of the order issued by the Rome Magistrate has violated her right under article 6 § 1 of the Convention.

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.)