SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32577/96 by Ada FOLLI CARE’ 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 ,

and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 17 May 1996 and registered on 8 August 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 1914 and living in Inzago ( Milano ).

She is represented before the Court by Mr Elio Lavore , a lawyer practising in Cassano d’Adda ( Milano ).

A. The circumstances of the case

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

The applicant is usufructuary of an apartment owned by her husband A.C. , which had been let to G.P.

In a registered letter of 28 February 1985, the applicant’s husband informed the tenant that he intended to terminate the lease on expiry of the term on 30 April 1986 and asked him to vacate the premises by that date.

In a writ served on the tenant on 15 April 1986, the applicant’s husband reiterated his intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.

By a decision of 26 April 1986, which was made enforceable on 14 May 1986, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 April 1987.

On 20 May 1987, the applicant’s husband served notice on the tenant requiring him to vacate the premises.

On 9 June 1987, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 10 July 1987.

Between 10 July 1987 and 17 February 1988, the bailiff made 4 attempts to recover possession, on 10 July 1987, 27 October 1987, 16 December 1987 and 17 February 1988.

Each attempt proved unsuccessful, as, under the statutory provisions providing for the suspension, the applicant’s husband was not entitled to police assistance in enforcing the order for possession.

On 4 august 1988, the applicant’s husband died and the applicant inherited the usufruct of the apartment.

Between 30 June 1989 and 10 December 1998, the bailiff made 30 attempts to recover possession, on 30 June 1989, 18 October 1989, 10 January 1990, 16 May 1990, 19 September 1990, 24 January 1991, 17 July 1991, 27 November 1991, 26 February 1992, 27 May 1992, 30 September 1992, 20 January 1993, 7 June 1993, 15 December 1993, 14 April 1994, 18 July 1994, 19 December 1994, 30 May 1995, 10 October 1995, 23 January 1996, 29 April 1996, 15 July 1996, 21 November 1996, 23 May 1997, 24 October 1997, 13 January 1998, 24 March 1998, 15 June 1998, 21 September 1998 and 10 December 1998.

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

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 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 contested measures are not proportional to the aim pursued by the public authorities. She further argues that she has been deprived of the exercise of her right of property since she cannot sell the apartment for its market value as long as it is occupied by a recalcitrant tenant.

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 a delay of thirteen years in the enforcement of the order issued by the Milan Magistrate violates Article 6 of the Convention.

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