FIRST SECTION
CASE OF MARINI v. ITALY
(Application no. 35088/97)
JUDGMENT
STRASBOURG
9 January 2003
FINAL
09/04/2003
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 Marini v. Italy,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
MrC.L. Rozakis, President,
MrG. Bonello,
MrP. Lorenzen,
MrsN. Vajić,
MrsS. Botoucharova,
MrsE. Steiner, judges,
MrsM. Del Tufo, ad hoc judge,
and Mr S. Nielsen, Deputy Section Registrar,
Having deliberated in private on 12 December 2002,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 35088/97) 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 Mr Emanuele Marini, Mr Carlo Marini, Mrs Anna Maria Marini, Mrs Rosanna Marini and Mr Silvano Marini (“the applicants”), Italian nationals, on 3 January 1997.
2. The applicants were represented by Mr F. Abbate and Mr A. Fantera, lawyers practising in Orte. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza, and by their co-Agent, Mr F. Crisafulli.
3. The applicants complained under Article 1 of Protocol No. 1 that they had been unable to recover possession of their flat within a reasonable time. Invoking Article 6 § 1 of the Convention, they further complained about the length of the eviction proceedings.
4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).
5. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. Mr V. Zagrebelsky, the judge elected in respect of Italy, withdrew from sitting in the case (Rule 28). The Government appointed Ms M. Del Tufo as ad hoc judge to sit in his place (Article 27 § 2 of the Convention and Rule 29 § 2).
6. On 4 October 2001 the Court declared the application admissible.
7. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. The applicants are the owners of a flat in Riano, which they had let to F.M.
9. In a writ served on the tenant on 31 July 1986, the applicants communicated their intention to terminate the lease and summoned the tenant to appear before the Castelnuovo di Porto Magistrate.
10. By a decision of 3 November 1987, which was made enforceable on the same day, the Castelnuovo di Porto Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 30 April 1989.
11. On 17 May 1989, the applicants served notice on the tenant requiring him to vacate the premises.
12. On 1 August 1989, they served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 11 August 1989.
13. Between 11 August 1989 and 27 May 1996, the bailiff made thirty-seven attempts to recover possession. Each attempt proved unsuccessful, as under the statutory provisions providing for the suspension or the staggering of evictions, the applicants were not entitled to police assistance in enforcing the order for possession.
14. Pursuant to Section 6 of Law no. 431/1998, the enforcement proceedings were suspended for nine months.
15. The applicant decided, therefore, not to pursue the enforcement proceedings given the lack of prospects of obtaining the assistance of the police.
16. According to the latest information provided by the applicants in their letter of 18 February 2002, they have not recovered possession of the flat.
II. RELEVANT DOMESTIC LAW
17. The relevant domestic law is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 AND OF ARTICLE 6 § 1 OF THE CONVENTION
18. The applicants complained that they have been unable to recover possession of their flat within a reasonable time owing to the lack of police assistance. They alleged a violation of 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.”
19. The applicants 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...”
20. The Court has on several previous occasions decided cases raising similar issues as 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).
21. 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 case. The Court refers to its detailed reasons in the judgments cited above and notes that in this case the applicants, in February 2002, had been waiting for twelve years and six months after the first attempt of the bailiff without repossessing the flat.
22. 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
23. 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. Damages
24. The applicants sought reparation for the damages they had sustained, which they put at 60,000,000 Italian lire (ITL) [30,987.41 euros (EUR)] (ITL 12,000,000 - EUR 6,197.48 to each applicant). They also leave the matter to be assessed by the Court in an equitable manner.
25. The Government stressed that the applicants had failed to adduce evidence of damage sustained as a result of the alleged violation and that in any event the amount claimed was excessive.
26. The Court considers that the applicants must be awarded compensation (see Immobiliare Saffi, cited above, § 79).
As for the pecuniary damage, having regard to the means of calculation proposed by the applicants, the Court, in the light of the evidence before it and the period concerned, decides to award on an equitable basis EUR 4,000 to each applicant under this head.
As for the non-pecuniary damage, the Court decides, on an equitable basis, to award EUR 3,000 to each applicant.
B. Costs and expenses
27. The applicants sought reimbursement of their legal costs, which they put at ITL 20,942,640 [EUR 10,815.97] for their costs and expenses before the Court.
28. According to the Court's case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicants and are reasonable as to quantum (see, for example, Bottazzi v. Italy [GC], no. 34884/97, ECHR 1999-V, § 30). In the present case, on the basis of the information in its possession and the above-mentioned criteria, the Court considers that EUR 1,500 (EUR 300 to each applicant) is a reasonable sum and awards the applicants that amount.
C. Default interest
29. 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 each of the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:
(i) 4,000 EUR (four thousand euros) for pecuniary damage;
(ii) 3,000 EUR (three thousand euros) for non-pecuniary damage;
(iii) 300 EUR (three hundred euros) for legal costs and expenses;
(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 applicants' claim for just satisfaction.
Done in English, and notified in writing on 9 January 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren NielsenChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy