SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31525/96 by Luigi PEZZA 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 9 November 1995 and registered on 20 May 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 1924 and living in Florence.

He is represented before the Court by Mr Marco Coruzzo , 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 he had let to M.G.L.

In a registered letter of 5 February 1982, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 30 June 1983 or at the latest by 31 December 1983 and asked her to vacate the premises by that date.

In a writ served on the tenant on 29 March 1984, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.

By a decision of 16 April 1984, which was made enforceable on 25 June 1984, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 15 May 1987.

On 24 March 1988 and again on 21 January 1989, the applicant served notice on the tenant requiring her to vacate the premises.

On 1 April 1989, the applicant made a statutory declaration that he urgently required the premises as accommodation for his daughter.

On 12 September 1989, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 31 October 1989.

Between 31 October 1989 and 18 February 1998 the bailiff made 19 attempts to recover possession, on 31 October 1989, 4 April 1990, 7 September 1990, 27 November 1990, 16 January 1991, 15 May 1991, 2 October 1991, 29 January 1992, 21 May 1992, 29 September 1992, 28 January 1993, 20 May 1993, 10 September 1993, 10 March 1994, 14 March 1995, 27 September 1995, 14 March 1996, 26 September 1996 and 18 February 1998.

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

On 4 June 1998, the applicant repossessed the apartment 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.

COMPLAINTS

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

2. The applicant further complains about the duration of the eviction proceedings.

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 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. He 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 his apartment during many years from the issue of the order for possession, despite the fact that he had made a statutory declaration that he urgently required the premises as accommodation for his daughter, amounts to a violation of his right under Article 1 of Protocol No. 1. He further argues that the tenant’s good economic conditions did not justify the delay in 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 delay in the enforcement of the order issued by the Florence Magistrate is not proportionate to the legitimate aim pursued by public authorities in their housing policy.

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