SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32403/96 by R.M. against Italy

The European Court of Human Rights (Second Section) , sitting on 30 May 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr B. Conforti, Mr G. Bonello, Mrs V. Strážnická, Mr M. Fischbach, Mrs M. Tsatsa-Nikolovska, Mr E. Levits , judges , [Note1]

and Mr E. Fribergh, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 19 June 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 applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Italian national, born in 1938 and living in Lodi.

She is represented before the Court by Mrs Donatella Rossi, 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 A.B.

In a registered letter of 4 May 1990, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 29 March 1991 and asked him to vacate the premises by that date.

In a writ served on the tenant on 1 June 1990, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.

By a decision of 29 June 1990, which was made enforceable on 11 January 1991, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 September 1991.

On 20 September 1991, the applicant made a statutory declaration that she urgently required the premises as accommodation for her daughter.

On 10 October 1991, the applicant served notice on the tenant requiring him to vacate the premises.

On 14 November 1991, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 29 November 1991.

Between 29 November 1991 and 18 March 1996, the bailiff made 21 attempts to recover possession, on 29 November 1991, 29 November 1991, 30 January 1992, 25 March 1992, 21 May 1992, 28 July 1992, 19 October 1992, 26 January 1993, 15 April 1993, 28 June 1993, 18 October 1993, 24 January 1994, 14 April 1994, 11 July 1994, 21 November 1994, 17 February 1995, 23 May 1995, 11 September 1995, 27 November 1995, 22 February 1996 and 18 March 1996.

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

On 20 May 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 applicant complains about her prolonged inability - through lack of police assistance - to recover possession of her apartment.

2. The applicant further 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 her right of property, as embodied in 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 he 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. She argues that the administrative courts would only have had jurisdiction to set aside decisions of the prefect that failed to apply the criteria governing priority. She does not argue that the prefect’s decisions were arbitrary, but that the application of the criteria for determining priority had a disproportionate impact on her right of property.

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 her right of property has been limited by the impossibility to repossess her apartment during many years from the issue of the order for possession. She further argues that the tenant’s economic conditions did not justify his protection.

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 is due to the incapacity of the Italian State to find a valid solution to housing problems.

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.)