SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31740/96 by A.G. and G.M. against Italy

The European Court of Human Rights (Second Section) , sitting on 15 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 11 May 1996 and registered on 5 June 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 in 1951 and 1953, living in Florence.

They are represented before the Court by Mr Stefano Ceni , a lawyer practising in Florence.

A. The circumstances of the case

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

Mrs B.P. was the owner of an apartment in Florence, which she had let to M.D.S.

In a writ served on the tenant on 21 November 1985, she informed him of her intention to terminate the lease expiring on 31 May 1986 and summoned him to appear before the Florence Magistrate.

By a decision of 9 December 1985, which was made enforceable on 11October 1988, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1988.

On 17 December 1986, the applicants became the owners of the apartment.

On 8 November 1989, the applicants served notice on the tenant requiring him to vacate the premises.

On 27 December 1989, they served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 23 January 1990.

On 2 June 1990, the applicants made a statutory declaration that they urgently required the premises as accommodation for themselves.

Between 23 January 1990 and 17 June 1996, the bailiff made 14 attempts to recover possession, on 23 January 1990, 30 November 1990, 30 May 1991, 26 November 1991, 27 May 1992, 11 November 1992, 4 February 1993, 22 September 1993, 3 February 1994, 28 September 1994, 11 May 1995, 12 October 1995, 20 March 1996, and 17 June 1996

Each attempt proved unsuccessful, as the applicants were never granted the assistance of the police in enforcing the order for possession.

On 4 September 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.

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 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.

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 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.)