SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30883/96 by Paola ESPOSITO 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 22 November 1995 and registered on 29 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 applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Italian national, born in 1968 and living in Livorno .

She is represented before the Court by Mr Massimo Cenerini , a lawyer practising in Livorno .

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 Livorno , which she had let to O.C.L.

On an unidentified date, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1991 and asked her to vacate the premises by that date.

In a writ served on the tenant on 16 July 1991 the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Livorno Magistrate.

By a decision of 29 July 1991, which was made enforceable on 17 September 1991, the Livorno Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992.

On 29 March 1993, the applicant served notice on the tenant requiring her to vacate the premises.

On 15 May 1993, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.

On 20 May 1993, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 17 June 1993.

Between 17 June 1993 and 4 June 1998 the bailiff made 8 attempts to recover possession, on 17 June 1993, 18 May 1994, 18 May 1995, 9 October 1995, 7 February 1996, 3 December 1996, 27 May 1997 and 4 June 1998.

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

Following the entry into force of Law No. 431 of 1998, on 27 July 1999, the tenant asked the Livorno District Court to set a fresh date for the enforcement of the order for possession.

The applicant asked the court to reject the tenant’s request.

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 her prolonged inability - through lack of police assistance - to recover possession of her apartment.

2. The applicant further complains under Article 6 § 1 of the Convention 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 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 many 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 further argues that the entry into force of Law No. 431 of 1998 did not help solving the problem of the great number of orders for possession to be enforced since the courts cannot set a fresh date for the evictions for lack of policemen who should assist the enforcement.

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