SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33252/96 by Giuseppe TONA against Italy

The European Court of Human Rights ( Second Section ), sitting on 4 May 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr A.B. Baka, Mr B. Conforti, Mr G. Bonello, Mrs V. Stráznická, Mrs M. Tsatsa-Nikolovska, 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 4 July 1996 and registered on 10 July 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 1942 and living 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 G.F.

In a registered letter of 6 June 1989, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 30 April 1992 and asked him to vacate the premises by that date.

In a writ served on the tenant on 27 September 1989 the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.

By a decision of 6 November 1989, which was made enforceable on 7 December 1989, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 April 1993.

On 28 March 1991, the applicant made a statutory declaration that he urgently required the premises as accommodation for his daughter.

On 14 May 1993, the applicant served notice on the tenant requiring him to vacate the premises.

On 18 June 1993, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 23 June 1993.

Between 26 June 1993 and 15 December 1998 the bailiff made 13 attempts to recover possession, on 26 June 1993, 6 October 1993, 10 February 1994, 28 September 1994, 11 May 1995, 10 November 1995, 27 March 1996, 10 October 1996, 17 March 1997, 9 October 1997, 24 February 1998, 16 July 1998 and 15 December 1998.

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

On 25 August 1999, the applicant served notice again on the tenant informing him that the order for possession would be enforced by a bailiff on 9 November 1999.

On 17 September 1999, the tenant asked the Florence District Court to set a fresh date for the enforcement of the order for possession pursuant to Section 6 of Law No. 431/98.

On 9 November 1999, the bailiff attempted to recover possession of the applicant’s apartment without success due to the lack of police assistance. He adjourned the enforcement proceedings to 23 March 2000.

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 prolonged inability – through lack of police assistance – 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. The relevant provision under Article 6 of the Convention 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 that 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 numbers of orders for possession were to be enforced simultaneously.

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 to 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 aim pursued by the eviction measures. This is particularly true in his case since he had made a statutory declaration that he needed the premises as accommodation for his daughter. He further argues that during the enforcement proceedings he was deprived of the right to a 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