FIRST SECTION
CASE OF DEL SOLE v. ITALY
(Application no. 36254/97)
JUDGMENT
STRASBOURG
17 July 2003
FINAL
17/10/2003
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Del Sole v. Italy,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
MrC.L. Rozakis, President,
MrP. Lorenzen,
MrG. Bonello,
MrsF. Tulkens,
MrsN. Vajić,
MrE. Levits, judges,
MrG. Raimondi, ad hoc judge,
and Mr S. Nielsen, Deputy Section Registrar,
Having deliberated in private on 26 June 2003,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 36254/97) against the Italian Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Francesco Del Sole (“the applicant”), on 18 March 1997.
2. The applicant was represented by Mr G. Tisci, a lawyer practising in Naples. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza, and by their co-Agent, Mr V. Esposito. Mr V. Zagrebelsky, the judge elected in respect of Italy, withdrew from sitting in the case (Rule 28). The Government appointed Mr G. Raimondi as ad hoc judge to sit in his place (Article 27 § 2 of the Convention and Rule 29 § 2).
3. On 22 May 2001 the Court declared the application admissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1947 and lives in Naples.
5. He is the owner of a flat in Naples, which he had let to C.E.
6. In a writ served on the tenant on 15 January 1987, the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Naples Magistrate.
7. By a decision of 13 December 1987, which was filed with the registry on 16 December 1987, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 31 December 1989.
8. On 30 November 1988, the tenant appealed to the Naples District Court.
9. By a decision of 26 October 1990, the court rejected the appeal and ordered that the premises be vacated by 30 June 1991.
10. On 27 December 1990, the applicant served notice of the judgment on the tenant.
11. On 5 July 1991, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 16 July 1991.
12. Between 16 July 1991 and 24 September 1992, the bailiff made five attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.
13. On 19 February 1993, the applicant made a statutory declaration that he urgently required the premises as accommodation for his father.
14. Between 25 February 1993 and 28 April 1998, the bailiff made eighteen 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.
15. On 3 July 1998, the applicant repossessed the flat with the assistance of the police.
II. RELEVANT DOMESTIC LAW
16. 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
17. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.
18. 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.
19. 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.
20. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.
B. Obligations of the tenant in the case of late restitution
21. 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”.
22. 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.
23. 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 that 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.
24. 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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 AND OF ARTICLE 6 § 1 OF THE CONVENTION
25. 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.”
26. 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...”
27. 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, §§ 46-66; Lunari v. Italy, no. 21463/93, 11 January 2001, §§ 34-46; Palumbo v. Italy, no. 15919/89, 30 November 2000, §§ 33-47).
28. 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 seven years 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
29. 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. Non-pecuniary damage
30. The applicant claimed ITL 70,000,000 [EUR 36,151.98] for the non-pecuniary damage.
31. The Government contested the claim.
32. The Court considers that the applicant must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 6,000 under this head.
B. Costs and expenses
33. The applicant sought reimbursement of his legal costs. He claimed ITL 6,000,000 Italian Lire (ITL) [3,098.74 euros (EUR)] for the costs of the enforcement proceedings and left the reimbursement of the costs and expenses before the Court to be assessed in an equitable manner.
34. 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.
35. 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 of the enforcement proceedings and EUR 2,000 for the costs and expenses before the Court.
C. Default interest
36. 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;
3. Holds
(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) 6,000 EUR (six thousand euros) for non-pecuniary damage;
(ii) 4,000 EUR (four thousand euros) for legal costs and expenses;
(iii) 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 17 July 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren NielsenChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy