SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31129/96 by Giancarlo MERICO 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 ,

and Mr E. Fribergh, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 25 October 1995 and registered on 23 April 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 1945 and living 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 he had let to S.P.

In a registered letter of 28 June 1988, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 1 July 1988 and asked her to vacate the premises by that date.

In a writ served on the tenant on 20 February 1991, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.

By a decision of 14 March 1991, which was made enforceable on 27 March 1991, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992.

On 30 November 1992, the applicant served notice on the tenant requiring her to vacate the premises.

On an unidentified date, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 19 February 1993.

On 3 December 1993, the applicant made a statutory declaration that he urgently required the premises as accommodation for his mother.

Between 19 February 1993 and 12 May 1997 the bailiff made 20 attempts to recover possession, on 19 February 1993, 24 April 1993, 13 July 1993, 19 October 1993, 13 January 1994, 31 March 1994, 9 June 1994, 29 September 1994, 15 December 1994, 30 March 1995, 19 June 1995, 25 September 1995, 13 December 1995, 14 March 1996, 19 June 1996, 10 September 1996, 31 October 1996, 12 December 1996, 27 February 1997 and 12 May 1997.

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

On 31 August 1997, the applicant repossessed the apartment.

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.

COMPLAINT

The applicant complains about his prolonged inability - through lack of police assistance - to recover possession of his apartment.

THE LAW

The applicant complains that his inability to recover possession of his apartment amounted to a violation of his 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 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 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.

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 prolonged impossibility to repossess his apartment, despite the fact that he had made a statutory declaration that he urgently required the premises as accommodation for his mother, constitutes a violation of his right of property. He further argues that the economic conditions of tenants, often better than those of landlords, were not included among the criteria followed by the Prefect in granting 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