Dieci anni per uno sfratto. La Corte Europea dei diritti dell’ uomo condanna nuovamente l’ Italia per l’ eccessiva durata del procedimento Council of Europe European Court of Human Rights – First section President Rosakis Case of L
Dieci anni per uno sfratto. La Corte Europea dei diritti dell’uomo condanna nuovamente l’Italia per l’eccessiva durata del procedimento
Council of Europe
European Court of Human Rights – First section
Case of La Paglia v. Italy – (Application no. 62020/00)
Strasbourg 31 July 2003
I. The circumstances of the case
1. The applicant was born in 1949 and live in Rome.
2. He is the owner of a flat in Rome, which he had let to L.E.
3. In a registered letter of 23 June 1983, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1983 and asked her to vacate the premises by that date.
4. The tenant told the applicant that she would not leave the premises.
5. In a writ served on the tenant on 5 February 1986, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.
6. By a decision of 4 April 1986, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 August 1986.
7. On 21 July 1986, invoking articles 10 and 11 of Law No. 84/82, the tenant asked for a postponement of the eviction proceedings and then the Rome Magistrate ordered that the premises be vacated by 15 May 1987.
8. On 3 July 1987, the applicant served notice on the tenant requiring her to vacate the premises.
9. On 22 July 1987, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 18 September 1987.
10. Between 18 September 1987 and 9 March 2000, the bailiff made fifty-five attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
11. In the meanwhile, on 27 February 1991, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself.
12. On 9 July 1999, pursuant to article 6 of Law No. 431/98, the tenant asked the Rome Magistrate to suspend the eviction proceedings. Consequently, the Rome Magistrate suspended the proceedings until 15 January 2000.
13. On 22 March 2000, the applicant sold the flat to the tenant.
II. Relevant domestic law
14. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
A. The system of control of the rents
15. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.
16. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.
17. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.
18. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.
Obligations of the tenant in the case of late restitution
19. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:
“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages”.
20. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law n. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.
21. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.
22. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.
I. Alleged violation of article 1 of protocol no. 1 and of article 6 § 1 of the convention
23. The applicant complained of his prolonged inability to recover possession of his flat, owing to the lack of police assistance. He alleged a violation of his right of property, as guaranteed by Article 1 of Protocol No. 1 to the Convention, 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.”
24. The applicant also alleged a breach of Article 6 § 1 of the Convention, the relevant part of which provides:
“In the determination of his civil rights and obligations …, everyone is entitled to a … hearing within a reasonable time by [a] … tribunal…”
25. The Court has previously examined a number of cases raising issues similar to those in the present case and found a violation of Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention (see Immobiliare Saffi, cited above, §§ 46-75; Lunari v. Italy, no. 21463/93, 11 January 2001, §§ 34-46; Palumbo v. Italy, no. 15919/89, 30 November 2000, §§ 33-48).
26. The Court has examined the present case and finds that there are no facts or arguments from the Government which would lead to any different conclusion in this instance. It notes that the applicant had to wait approximately twelve years and six months after the first attempt of the bailiff before being able to repossess the flat.
Consequently, there has been a violation of Article 1 of Protocol No. 1 and of Article 6 § 1 of the Convention in the present case.
II. Application of article 41 of the convention
27. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Pecuniary damage
28. The applicant sought reparation for the pecuniary damage he had sustained, which he calculated as follows: 60,000,000 Italian lire (ITL) [30,987.41 euros (EUR)], the sum being the loss of rent for the period from August 1986 (the term ordered by the Rome Magistrate for the tenant to vacate the premises) to March 2000 (when the applicant sold the flat to the tenant). However, the applicant left the matter to be assessed by the Court in an equitable manner, given the impossibility for him to exactly assess the loss of rent.
29. The Government contested the claim.
30. The Court recalls that the applicant made a statutory declaration that he urgently required the flat as accommodation for himself. In such circumstances, he cannot claim any entitlement to reimbursement of loss of rent but he can only claim the reimbursement of such costs and expenses incurred to rent another flat which go beyond the rent received from the tenant. However, he has not made such a claim. Therefore, the Court rejects the claim.
B. Non-pecuniary damage
31. The applicant claimed ITL 18,000,000 [EUR 9,296.22] for the non-pecuniary damage.
32. The Government contested the claim.
33. The Court considers that the applicant must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards him the amount claimed in full.
C. Costs and expenses
34. The applicant also claimed reimbursement of his legal costs and expenses as follows:
– ITL 9,000,000 [EUR 4,468.11] for the costs of the enforcement proceedings;
– EUR 2,300 for the costs and expenses before the Court.
35. As regards the costs of the enforcement proceedings, the Government contested the claim. As regards the costs and expenses before the Court, the Government did not make any submissions.
36. On the basis of the information in its possession and the Court’s case-law, the Court considers it reasonable to award the applicant the sum of EUR 2,000 for the costs and expenses incurred in the domestic proceedings and EUR 2,000 for the costs and expenses before the Court.
D. Default interest
37. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points.
For these reasons, the court unanimously
1. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:
(i) EUR 9,296.22 (nine thousand two hundred ninety-six euros and twenty-two cents) for non-pecuniary damage;
EUR 4,000 (four thousand euros) for legal costs and expenses;
any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 31 July 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.