SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30877/96 by Enrica and Carlo CASTIGLIONI 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 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 8 March 1996 and registered on 28 March 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 both Italian nationals, born respectively in 1953 and 1951 and living in Mesero (Milan).

They are represented before the Court by Mrs Rosa Bertoglio , a lawyer practising in Legnano (Milan).

A. The circumstances of the case

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

The applicants are the owners of an apartment in Milan, which they had let to V.V.

In a registered letter of 13 December 1989, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 30 June 1990 and asked her to vacate the premises by that date.

In a writ served on the tenant on 25 January 1990, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.

By a decision of 8 March 1990, which was made enforceable on 14 March 1990, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 April 1991.

On 10 May 1991, the applicants served notice on the tenant requiring her to vacate the premises.

On 6 June 1991, they served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 29 June 1991.

Between 29 June 1991 and 8 February 1994, the bailiff made 11 attempts to recover possession, on 29 June 1991, 10 September 1991, 31 October 1991, 17 February 1992, 9 April 1992, 15 June 1992, 15 October 1992, 23 April 1993, 13 July 1993, 9 November 1993 and 8 February 1994.

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 15 April 1994, the applicants made a statutory declaration that they urgently required the premises as accommodation for their ascendants.

Between 29 April 1994 and 9 October 1997, the bailiff made 11 attempts to recover possession on 29 April 1994, 20 September 1994, 16 December 1994, 28 April 1995, 12 October 1995, 12 March 1996, 9 July 1996, 15 January 1997, 18 April 1997, 8 July 1997 and 9 October 1997.

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

In a registered letter of 26 November 1997, the tenant informed the applicants that she had 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 their 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 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 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 applicants argue that the impossibility to repossess their apartment during 6 years and 6 months, despite the fact that they had made a statutory declaration that they urgently required the premises as accommodation for their ascendants, amounts to a violation of their 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 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