SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33204/96 by Elda TOSI 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 4 April 1996 and registered on 26 September 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 1931 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 she had let to M.A.H on 1 March 1987.

In a writ served on the tenant on 13 February 1991 the applicant informed the tenant that she intended to terminate the lease and summoned the tenant to appear before the Milan Magistrate.

By a decision of 15 March 1991, which was made enforceable on 19 March 1991, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 30 September 1991.

On 10 July 1991, the applicant served notice on the tenant requiring him to vacate the premises.

On 18 November 1991 she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 29 November 1991.

Between 29 November 1991 and 22 January 1999 the bailiff made 24 attempts to recover possession, on 29 November 1991, 18 February 1992, 7 April 1992, 19 May 1992, 21 July 1992, 20 October 1992, 19 February 1993, 26 March 1993, 8 June 1993, 27 September 1993, 22 July 1994, 28 October 1994, 28 February 1995, 19 May 1995, 14 December 1995, 29 March 1996, 10 July 1996, 6 November 1996, 13 February 1997, 28 November 1997, 6 March 1998, 23 July 1998, 8 October 1998 and 22 January 1999.

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 November 1999, the applicant repossessed the premises with the assistance of the police.

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

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 Court has also examined whether the applicant’s right to a court was respected. 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 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 staggering of evictions constitutes a de facto expropriation, since the landlords cannot dispose of their property. She further argues that tenant’s income, which is often higher than the landlord’s, is not included among the criteria taken into consideration in evaluating the priority to be given to the enforcement of the order for possession.

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 length of the enforcement proceedings is due to the incapacity of public authorities to apply the relevant 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.)