SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31223/96 by T.C.U. against Italy

The European Court of Human Rights ( Second Section ), sitting on 25 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 , [Note1]

and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 14 November 1995 and registered on 30 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 1912 and living in Milan.

She is represented before the Court by Mr Daniele Portinaro, 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 L.D.Z.

In a registered letter of 6 June 1984, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 29 December 1984 and asked her to vacate the premises by that date.

On 11 February 1985, she served a notice to quit on the tenant, but she refused to leave.

In a writ served on the tenant on 19 February 1985, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.

By a decision of 27 February 1985, which was made enforceable on 14 March 1985, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 27 February 1986.

On 23 January 1986, the applicant served notice on the tenant requiring him to vacate the premises.

On 7 March 1986, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 18 April 1986.

Between 18 April 1986 and 18 June 1992 the bailiff made 23 attempts to recover possession, on 18 April 1986, 27 June 1986, 26 September 1986, 14 May 1987, 16 June 1987, 22 September 1987, 27 October 1987, 24 July 1989, 13 October 1989, 22 December 1989, 20 February 1990, 6 April 1990, 25 May 1990, 13 July 1990, 12 October 1990, 30 January 1991, 16 March 1991, 24 May 1991, 8 October 1991, 15 November 1991, 17 December 1991, 14 April 1992 and 18 June 1992.

Each attempt proved unsuccessful, as, under the statutory provisions providing for the suspension or the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.

Thereafter, the applicant decided not to pursue the enforcement proceedings, in order to avoid useless costs, given the lack of prospects of obtaining the assistance of the police.

On 13 April 1996 the applicant repossessed the apartment, which the tenant vacated in pursuance of an agreement reached with the applicant.

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 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 prefectoral committee never adopted a formal decision refusing police assistance and that, at any event, the proceedings in the administrative courts would not have been effective, given the length of these proceedings before Italian courts.

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 the impossibility to repossess her apartment during eleven 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 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 apply its legislation.

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.)