SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32589/96 by D.V. 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 19 June 1996 and registered on 9 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 1956 and living in Florence.

She is represented before the Court by Mr Giovanni Viligiardi , a lawyer practising in Florence.

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 Florence, which she had let to P.R. and A.R.Z.

In a registered letter of 7 June 1989, the applicant informed the tenants that she intended to terminate the lease on expiry of the term on 15 December 1989 and asked them to vacate the premises by that date.

On 8 June 1989, she served a notice to quit on the tenants, but they refused to leave.

In a writ served on the tenants on 21 October 1989, the applicant reiterated her intention to terminate the lease and summoned the tenants to appear before the Florence Magistrate.

By a decision of 20 November 1989, which was made enforceable on 27 November 1989, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 15 December 1990.

On 18 December 1990, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.

On 28 December 1990, the applicant served notice on the tenants requiring them to vacate the premises.

On 22 January 1991, she served notice on the tenants informing them that the order for possession would be enforced by a bailiff on 6 February 1991.

Between 6 February 1991 and 7 May 1999 the bailiff made 18 attempts to recover possession, on 6 February 1991, 20 September 1991, 12 February 1992, 12 May 1992, 26 November 1992, 8 June 1993, 15 December 1993, 16 June 1994, 15 December 1994, 18 May 1995, 23 November 1995, 9 May 1996, 18 October 1996, 11 April 1997, 13 March 1998, 3 July 1998, 10 December 1998 and 7 May 1999.

Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police 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

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 impossibility to repossess her apartment during almost eleven years from the issue of the order for possession amounts to a violation of her right under Article 1 of Protocol No. 1. She further alleges that she had to pay a higher tax on the property of the apartment since she did not use it as her own residence.

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 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.)