SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32766/96 by IMMOBILIARE SOLE s.r.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 17 January 1996 and registered on 23 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 company,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Italian company having its registered seat in Milan.

It is represented before the Court by Mr Tomasoni , 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.

Mrs C. was the owner of an apartment in Milan, which she had let to D.S.

In a registered letter of 20 January 1987, she 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 heirs of the tenant, who had died in the meantime, on 25 February 1988, Mrs C. reiterated her intention to terminate the lease and summoned them to appear before the Milan Magistrate.

By a decision of 24 March 1988, which was made enforceable on 29 March 1988, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 24 March 1989.

On 25 July 1989, the applicant became the owner of the apartment.

On 17 July 1990, the applicant served notice on the heirs, now tenants, requiring them to vacate the premises.

On 5 October 1990, it served notice on the tenants informing them that the order for possession would be enforced by a bailiff on 15 October 1990.

Between 15 October 1990 and 15 October 1996, the bailiff made 21 attempts to recover possession, on 15 October 1990, 18 December 1990, 27 February 1991, 21 May 1991, 20 September 1991, 14 January 1992, 17 March 1992, 12 February 1993, 22 April 1993, 14 July 1993, 10 November 1993, 15 February 1994, 21 June 1994, 20 October 1994, 14 February 1995, 17 May 1995, 17 October 1995, 19 January 1996, 18 April 1996, 11 July 1996 and 15 October 1996.

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

At the beginning of January 1997, the applicant repossessed the apartment as the tenants had spontaneously 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 under Article 1 of Protocol No. 1 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 it does not contest the Prefect’s decisions, but that the staggering of evictions violated its right under Article 1 of Protocol No. 1.

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 civil proceeding is a part of the judicial process. Therefore, Article 6 applies to the enforcement proceeding.

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 eight years from the issue of the order for possession 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 applicant argues that the delay of six years in the enforcement of the order issued by the Milan Magistrate is violates Article 6 of the Convention. Moreover, it argues that it repossessed the apartment without the assistance of the police.

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.)