SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33602/96 by Ferdinando PARIS 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 B. Conforti, Mr G. Bonello, Mrs V. Strážnická, Mr M. Fischbach, Mrs M. Tsatsa-Nikolovska, Mr E. Levits, judges ,

and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 31 January 1996 and registered on 30 October 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 1923 and living in Rome.

He is represented before the Court by Mr Carlo Marzioni , a lawyer practising in Rome.

A. The circumstances of the case

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

The applicant is the owner of an apartment in Rome, which he had let to C.M.

In a writ served on the tenant on 10 February 1987, the applicant informed the tenant that he intended to terminate the lease expiring on 31 December 1987 and summoned the tenant to appear before the Rome Magistrate.

By a decision of 12 March 1987, which was made enforceable on 19 June 1987, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 31 December 1988.

On 27 November 1989, the applicant served notice on the tenant requiring him to vacate the premises.

On 22 December 1989, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 23 February 1990.

On 16 February 1991, the applicant made a statutory declaration that he urgently required the premises as accommodation for his daughter.

Between 23 February 1990 and 28 January 1991, the bailiff made 7 attempts to recover possession, on 23 February 1990, 4 April 1990, 15 May 1990, 19 July 1990, 4 October 1990, 22 November 1990 and 28 January 1991.

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

Between 1 March 1991 and 1 September 1995, the bailiff made 22 attempts to recover possession, on 1 March 1991, 19 April 1991, 29 May 1991, 28 November 1991, 28 January 1992, 5 March 1992, 17 April 1992, 26 May 1992, 15 July 1992, 16 September 1992, 28 October 1992, 10 December 1992, 29 January 1993, 2 March 1993, 8 April 1993, 6 July 1993, 7 September 1993, 9 December 1993, 8 March 1994, 1 September 1994, 1 March 1995 and 1 September 1995.

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

On an unspecified day of February 1996, the tenant spontaneously vacated 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 applicant contests the Government’s arguments. He argues that the prefectoral committee’s decisions were completely arbitrary and consequently very difficult to contest before the administrative jurisdiction. He further argues 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 applicant contests the Government’s arguments. He argues that Article 6 of the Convention applies to the administrative phase of the enforcement of the order for possession, since this phase cannot be separated from the rest of the proceedings.

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 enforce the great number of orders for possession issued by the magistrates is due to the incapacity of the public authorities to find a valid solution to the housing problem.

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 prolonged impossibility to enforce the order for possession of the Rome Magistrate, due to the active intervention of public authorities in suspending and staggering the eviction, constitutes a violation of Article 6 § 1 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