EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 23924/94
C.A.R. srl
against
Italy
REPORT OF THE COMMISSION
(adopted on 10 September 1997)
TABLE OF CONTENTS
Page
I.INTRODUCTION
(paras. 1-15)1
A.The application
(paras. 2-4)1
B.The proceedings
(paras. 5-10)1
C.The present Report
(paras. 11-15)2
II.ESTABLISHMENT OF THE FACTS
(paras. 16-38)3
III.OPINION OF THE COMMISSION
(paras. 39-53)5
A.Complaint declared admissible
(para. 39)5
B.Point at issue
(para. 40)5
C.As regards Article 1 of Protocol No. 1 to the Convention
(paras. 41-52)5
CONCLUSION
(para. 53)7
APPENDIX:DECISION OF THE COMMISSION AS TO
THE ADMISSIBILITY OF THE APPLICATION8
I.INTRODUCTION
1.The following is an outline of the case as submitted to the European
Commission of Human Rights, and of the procedure before the Commission.
A.The application
2.The applicant is an Italian building society having its registered office
in Rome and acting through its legal representative Mr Stefano Cecchi.
3.The application is directed against Italy. The respondent Government were
represented by Mr Umberto Leanza, Head of the Diplomatic Legal Service, Ministry
of Foreign Affairs.
4.The case concerns the impossibility for the applicant company to evict a
group of squatters from its property. The applicant company invokes Article 1 of
Protocol No. 1 to the Convention.
B.The proceedings
5.The application was introduced on 22 September 1993 and registered on 19
April 1994.
6.On 6 September 1995 the Commission (First Chamber) decided, pursuant to
Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application
to the respondent Government and to invite the parties to submit written
observations on its admissibility and merits.
7.The Government's observations were submitted on 8 November 1995. The
applicant company replied on 2 January 1996. Both parties submitted additional
observations on 1 April and 2 April 1996 respectively.
8.On 27 June 1996 the Commission declared admissible the applicant company's
complaint under Article 1 of Protocol No. 1 to the Convention. It declared
inadmissible the remainder of the application.
9.The text of the Commission's decision on admissibility was sent to the
parties on 9 July 1996 and they were invited to submit such further information
or observations on the merits as they wished.
10.After declaring the case admissible, the Commission, acting in accordance
with Article 28 para. 1 (b) of the Convention, also placed itself at the
disposal of the parties with a view to securing a friendly settlement. In the
light of the parties' reaction, the Commission now finds that there is no basis
on which such a settlement can be effected.
C.The present Report
11.The present Report has been drawn up by the Commission (First Chamber) in
pursuance of Article 31 of the Convention and after deliberations and votes, the
following members being present:
Mrs.J. LIDDY, President
MM.M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENI?
C. BÎRSAN
K. HERNDL
Mrs.M. HION
MrR. NICOLINI
12.The text of this Report was adopted on 10 September 1997 by the Commission
and is now transmitted to the Committee of Ministers of the Council of Europe,
in accordance with Article 31 para. 2 of the Convention.
13.The purpose of the Report, pursuant to Article 31 of the Convention, is:
(i)to establish the facts, and
(ii)to state an opinion as to whether the facts found disclose a breach
by the State concerned of its obligations under the Convention.
14.The Commission's decision on the admissibility of the application is
annexed hereto.
15.The full text of the parties' submissions, together with the documents
lodged as exhibits, are held in the archives of the Commission.
II.ESTABLISHMENT OF THE FACTS
16.By contract of 19 January 1989, the applicant company let 26 villas and 15
garages it owned in Aprilia (Latina) to the company "X". The latter allowed a
group of Somalis to settle in the buildings.
17.On 11 October 1990, an indefinite number of Somali refugees occupied the
applicant's buildings.
18.In November 1990, the company "X" ceased to pay the rent.
a)The eviction proceedings before the Rome Magistrate
19.On 27 November 1990, the applicant company brought an action before the
Rome magistrate in order to evict "X" on the grounds of non payment of rent; by
decision ("convalida di sfratto per morosità") of 9 January 1991, the magistrate
ordered the eviction of the tenant with the assistance of the police. The
eviction was fixed for 20 January 1991.
20.On 18 January 1991, the applicant served on the tenant the order
("precetto") to vacate the premises.
21.However, the Somali refugees occupying the applicant's property refused to
vacate the premises.
22.Despite numerous requests to the Latina Prefect, the applicant company was
not granted the assistance of the police, as the solution to its problem raised
issues of public order nature. Numerous attempts by a bailiff (15 April, 27 May,
17 October, 14 November 1991, 14 February, 18 May, 8 September, 8 October and 11
December 1992) to evict the Somali refugees were therefore unsuccessful.
b)The proceedings before the Latina Public Prosecutor
23.On 9 January 1993, the applicant filed a criminal complaint with the
Latina Public Prosecutor against the Somali refugees occupying its premises
without any legal title.
24.The Public Prosecutor carried out preliminary investigations on the
situation of the Somali refugees; in particular, he contacted the local
administrative authorities in order to find out what had been or was being done
to find an alternative suitable accommodation for the refugees and to help them
integrate with the local community.
25.On 22 May 1993, the Public Prosecutor requested that the preliminary
investigation against the Somali refugees be discontinued.
26.On 22 June 1993, the applicant opposed the Public Prosecutor's request to
drop the charges against the refugees.
27.By decree of 15 November 1993, the preliminary investigations against the
Somali refugees were discontinued; the Latina investigating judge held that the
refugees had not unlawfully occupied the applicant's buildings, but "had been
taken there in order to receive assistance" ("i somali vi venivano fatti
affluire onde ricevere assistenza"). He therefore considered that it was a civil
rather than a criminal matter, namely a case of eviction of tenants that had to
be settled by civil judges.
c)The proceedings before the Latina Magistrate
28.On 8 February 1993 the applicant applied to the Latina Magistrate,
pointing out that over 300 refugees were refusing to vacate its buildings
despite an enforceable decision, and that its property was deteriorating. It
therefore requested the assistance of the police in evicting the occupants from
its premises.
29.The Latina Magistrate contacted the Lazio administrative authorities that
were responsible for the presence of the Somali refugees in the region. The
local authorities committed themselves to finding a suitable alternative
accommodation for the refugees within a short period of time.
30.By decision of 25 February 1993, the Magistrate considered that the
solution to the applicant's problem was of general interest and raised issues of
public order, and therefore reserved any decision in this respect, awaiting the
intervention of the regional administrative authorities "provided that the
latter intervention takes place within a reasonable period of time".
31.On 11 March 1993, the Magistrate's decision was notified to the regional
administrative authorities.
32.On 4 June 1993, no action having been taken, the applicant once again
applied to the Latina Magistrate and renewed its request for the assistance of
the police.
33.By decision of 30 June 1993, the Latina Magistrate observed that the case
could either be considered as an eviction of tenants - in which case the
competent authority to grant the assistance of the police was the Latina Prefect
- or as an unlawful occupation of property by the Somali refugees - in which
case the competent authority to settle the matter was the Public Prosecutor. The
Magistrate therefore forwarded the applicant's request to both the Latina
Prefect and the Latina Public Prosecutor's Office.
34. Meanwhile, on 25 June 1992 the Aprilia town council paid the gas bill, the
water bill and the electricity bill for the refugees.
35.On 16 March 1993, the Lazio regional authorities paid the electricity bill
for the refugees.
36.On 22 October 1993, the applicant served on the company "X" a second order
to vacate the premises.
37.On 3 February 1994, the occupants vacated the buildings following the
intervention of the Lazio Councillorship of local Public Bodies and Immigration
("Assessorato agli enti locali e all'immigrazione della Regione Lazio"), which
moved them to certain buildings in Anzio.
38.On 12 February 1994, the applicant, with the assistance of a bailiff,
obtained the possession of its buildings.
III.OPINION OF THE COMMISSION
A.Complaint declared admissible
39. The Commission has declared admissible the applicant company's complaint
that, despite an enforceable judgment, it has been unable to evict the persons
illegally occupying its buildings for more than three years and has not received
any compensation from the administrative authorities for the significant
financial damages it suffered in terms of both unpaid rent and damage to the
property.
B.Point at issue
40. The only point at issue is whether the impossibility for the applicant
company to recover possession of its building for longer than three years,
coupled with the lack of any compensation for the financial prejudice suffered
in this connection, amounts to a breach of Article 1 of Protocol No. 1 (P1-1).
C.As regards Article 1 of Protocol No. 1 (P1-1) to the Convention
41. Article 1 of Protocol No. 1 (P1-1) to the Convention provides as follows:
"Every natural and 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".
42. The applicant company alleges a breach of this Article on account of the
inaction of the Italian authorities with respect to the prolonged occupation
sine titulo of its property by a group of Somali refugees and on account of the
lack of compensation for the financial prejudice it suffered in this connection.
43. The Government concede that there was an interference with the applicant
company's property rights.
44. The Commission recalls that Article 1 of Protocol No. 1 (P1-1) guarantees
in substance the right to property. It comprises three distinct rules. The
first, which is expressed in the first sentence of the first paragraph and is of
a general nature, lays down the principle of peaceful enjoyment of property. The
second rule, in the second sentence of the same paragraph, covers deprivation of
possessions and subjects it to certain conditions. The third, contained in the
second paragraph, recognises that Contracting States are entitled, amongst other
things, to control the use of property in accordance with the general interest.
The three rules are not "distinct" in the sense of being unconnected: the second
and third rules are concerned with particular instances of interference with the
right to peaceful enjoyment of property, and should therefore be construed in
the light of the general principle laid down in the first rule (see Eur. Court
HR, Pressos Compania Naviera SA and others v. Belgium judgment of 20 November
1995, Series A no. 332, para. 33 with further reference).
45. In the present case, the Commission observes that, even if the applicant
company's right to dispose of its property may have been affected by the
situation complained of, its property right, as such, remained intact. The
Commission therefore considers that the interference in question did not
constitute a deprivation of property within the meaning of the second sentence
of the first paragraph. Neither did it amount to control of the use of property,
as, unlike other cases involving the eviction of tenants (cf. Eur. Court HR,
Spadea and Scalabrino v. Italy and Scollo v. Italy judgments of 28 September
1995, Series A nos. 315-B and C), the non-eviction of the refugees in the
present case was not the result of any legislative measure within the meaning of
the second paragraph of Article 1 (Art. 1-2). The situation complained of
concerned the factual refusal by the competent administrative authorities to
lend their support to the enforcement of the eviction of a number of persons
occupying the applicant company's property without any title: it therefore falls
to be examined under the first sentence of the first paragraph of Article 1
(Art. 1-1). The Commission recalls in this respect that the Contracting States
must not only refrain from interfering with the rights under the Convention, but
also take positive steps to secure the enjoyment of these rights (cf. Eur. Court
HR, Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 17, para.
32).
46. The Commission must therefore determine whether a fair balance was struck
between the demands of the general interest of the community and the
requirements of the protection of the individual's fundamental rights (see,
inter alia, Eur. Court HR, Sporrong and Lönnroth v. Sweden judgment of 23
September 1982, Series A no. 52, p. 26, para. 69; Stran Greek Refineries v.
Greece judgment of 9 December 1994, Series A no. 301-B, p. 87, para. 69).
47. The Government submit that the decision not to grant the applicant company
the assistance of the police was justified in the light of the need of avoiding
the risk of any prejudice to public order. Moreover, the interference at issue
was not long enough to place an excessive burden on the applicant company.
48. The applicant company stresses the significant prejudice it has suffered
and considers that the interference with its property rights was
disproportionate, particularly in the light of the lack of any compensation by
the administrative authorities.
49. The Commission observes that the Prefect justified his refusal to grant
the applicant company police assistance in evicting the squatters by reference
to public order, as the solution to the problem of the Somali refugees was
clearly one of general interest. The eviction was thus postponed until the local
administrative authorities could find a suitable alternative accommodation for
the squatters. However, although the administrative authorities had committed
themselves to do so within a short period of time, in fact it took them more
than three years.
50. The Commission considers that the Prefect, in refusing to grant police
assistance by reference to public order, did not go beyond the margin of
appreciation allowed by Article 1 of Protocol No. 1 (P1-1) (cf. No. 19053/91,
Comm. Report 5.9.95, unpublished, para. 49). The public interest in preserving
public order undoubtedly weighed more in the scale than the applicant company's
wish to recover possession of its property, even if the latter was admittedly
deteriorating.
51. However, in order to ascertain whether the interference at issue was
proportionate to the legitimate aim that it sought to achieve, the Commission
must also take into account the fact that no compensation has been paid to the
applicant company by the State by way of reparation for the prejudice that the
latter had suffered in terms of both unpaid rent and damage to the property, in
connection with the occupation of its property by the Somali refugees over a
period of more than three years until the administrative authorities found them
an alternative accommodation (cf., a contrario, No. 19053/91, already cited,
para. 50).
52. In light of the preceding consideration, the Commission considers that the
necessary balance between the protection of the applicant company's right of
property and the requirements of public order was lacking: the burden that the
applicant company was made to bear was excessive.
CONCLUSION
53.The Commission concludes, unanimously, that in the present case there has
been a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention.
M.F. BUQUICCHIOJ. LIDDY
SecretaryPresident
to the First Chamberof the First Chamber
Full & Egal Universal Law Academy