SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33115/96 by Alberto FABBRINI 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 12 June 1996 and registered on 23 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 1954 and living in Florence.

He is represented before the Court by Mr Giovanni Viligiardi and Mrs Donatella Viligiardi , lawyers 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 A.B.

In a registered letter of 26 March 1984, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 30 June 1986 and asked him to vacate the premises by that date.

On 8 April 1986, he served a notice to quit on the tenant, but he refused to leave.

In a writ served on the tenant on 22 April 1986, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.

By a decision of 2 May 1986, which was made enforceable on 7 July 1986, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 June 1988.

On 13 July 1988 and again on 13 May 1989, the applicant served notice on the tenant requiring him to vacate the premises.

On 2 May 1989 the applicant made a statutory declaration that he urgently required the premises as accommodation for himself.

On 17 June 1989 he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 7 August 1989.

Between 7 August 1989 and 15 October 1996, the bailiff made 15 attempts to recover possession, on 7 August 1989, 26 April 1990, 17 October 1990, 28 February 1991, 17 October 1991, 27 March 1992, 28 October 1992, 18 March 1993, 20 October 1993, 9 March 1994, 4 November 1994, 30 June 1995, 31 January 1996, 12 February 1996 and 15 October 1996.

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

On 7 April 1997, the applicant repossessed the premises.

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 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 eleven years from the issue of the order for possession obliged him to rent another apartment for himself and to pay more than the rent perceived.

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.)