Information Note on the Court’s case-law 70
December 2004
Mascolo v. Italy - 68792/01
Judgment 16.12.2004 [Section III]
Article 41
Just satisfaction
Legislation suspending expulsion of tenants, resulting in delay in recovery of possession
The application concerned the fact that a property-owner had been unable to recover possession of his flat for a long period on account of a lack of police assistance. The applicant had been obliged to wait about seven years and seven months from the date of a bailiff’s first eviction attempt before he could recover possession. The Court concluded that there had been a violation of Article 1 of Protocol No. 1 to the Convention and of Article 6 § 1 [reasonable time] of the Convention (see, in particular, the judgments in Immobiliare Saffi v. Italy, of 28 July 1999, ECHR 1999-V; Edoardo Palumbo v. Italy, of 30 November 2000), after rejecting, for estoppel, the preliminary objection on non-exhaustion of domestic remedies, which relied on Article 1591 of the Civil Code.
With regard to the application of Article 41 of the Convention, the Government considered that they could not be held responsible before the Court for the financial consequences suffered by the applicant on account of the violation that had been found, since the applicant would have been able to recover the losses sustained on account of the late recovery of his flat on the basis of Article 1591 of the Civil Code. Under that provision, tenants were subject to a general obligation to compensate landlords for any loss caused by late return of housing.
Extract (pecuniary damage): “…The Court notes that the applicant was able to apply to the civil courts within the meaning of Article 1591 of the Civil Code, by applying for compensation from his former tenant, with a view to obtaining reimbursement of losses caused by the latter through the failure to restore the property in good time. In the instant case, those losses resulted from the unlawful behaviour of the tenant, who, quite apart from the question of the State’s cooperation in enforcing the eviction notice, had a duty to restore the flat to its owner. The violation of the applicant’s right to peaceful enjoyment of his possessions is primarily the result of the tenant’s unlawful behaviour. The State’s violation of Article 6 of the Convention, as found by the Court, is procedural in nature and occurred subsequent to the tenant’s behaviour. Consequently, the Court notes that Italian domestic legislation contains provisions for making good the financial consequences of the violation, and considers that it appropriate to dismiss the request for just satisfaction in so far as it concerns pecuniary damage…”
The Court considered that the applicant had sustained certain non-pecuniary damage and, ruling on an equitable basis, made him an award under that head.
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This summary by the Registry does not bind the Court.
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