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You are here: BAILII >> Databases >> European Court of Human Rights >> MARIGLIANO v. ITALY - 60388/00 [2003] ECHR 429 (31 July 2003) URL: http://www.bailii.org/eu/cases/ECHR/2003/429.html Cite as: [2003] ECHR 429

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FIRST SECTION

CASE OF MARIGLIANO v. ITALY

(Application no. 60388/00)

JUDGMENT

STRASBOURG

31 July 2003

FINAL

31/10/2003

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 Marigliano v. Italy,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Mr C.L. ROZAKIS, President,

Mr P. LORENZEN,

Mr G. BONELLO,

Mrs N. VAJIć,

Mrs S. BOTOUCHAROVA,

Mr V. ZAGREBELSKY,

Mrs E. STEINER, judges,

and Mr S. NIELSEN, Deputy Section Registrar,

Having deliberated in private on 8 July 2003,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 60388/00) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mrs Anna Felicia Marigliano (“the applicant”), on 18 August 2000.

2. The applicant is represented before the Court by Mr R. Fiorillo, a lawyer practising in Salerno. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza and by their successive co-agents, respectively, Mr V. Esposito and Mr F. Crisafulli.

3.  On 7 March 2002 the Court declared the application admissible.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1946 and lives in Rome.

5.  She is the owner of a flat in Coperchia (Salerno), which she had let to F.T.

6.  In a registered letter of 12 June 1993, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 30 August 1994 and asked him to vacate the premises by that date.

7.  In a writ served on the tenant on 28 June 1993, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Salerno Magistrate. The tenant told the applicant that he would not leave the premises.

8.  By a decision of 6 July 1993, which was made enforceable on 22 February 1995, the Salerno Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 28 February 1995.

9.  On 4 March 1995, the applicant served notice on the tenant requiring him to vacate the premises.

10.  On 24 March 1995, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 3 April 1995.

11.  On 3 April 1995, the bailiff made one attempt to recover possession, which proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.

12.  On 2 January 1996, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.

13.  On 8 January 1997, the applicant asked the Salerno Magistrate to be granted the assistance of the police in enforcing the order for possession.

14.  On 8 May 1998, the Salerno Magistrate decided to grant the assistance of the police.

15.  Between 16 July 1998 and 27 January 1999, the bailiff made 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.

16.  Pursuant to law no. 431/98, the enforcement proceedings were suspended.

17.  On 20 February 2000, the applicant recovered possession of the flat.

II.  RELEVANT DOMESTIC LAW

18.  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

19.  As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.

20.  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.

21.  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.

22.  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

23.  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”.

24.  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.

25.  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.

26.  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

27.  The applicant complained of her prolonged inability to recover possession of her flat, owing to the lack of police assistance. She alleged a violation of her 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.”

28.  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...”

29.  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).

30.  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 four years and ten 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

31.  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

32.  The applicant sought reimbursement of the non-pecuniary damage. She submitted that the sum of 25,000 euros (EUR) claimed in the application form would not be sufficient and requested a sum not lower than the pecuniary damage she would have suffered in the case she wanted to let the flat at market value price.

33.  The Government contested the claim.

34.  The Court considers that the applicant must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 5,000 under this head.

B.  Costs and expenses

35.  The applicant also claimed reimbursement of her legal costs and expenses as follows:

- EUR 1,229.90 for the costs of the enforcement proceedings;

- EUR 4,532.39 for the costs and expenses before the Court.

36.  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.

37.  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 amount claimed in full (EUR 1,229.90) for her costs for the enforcement proceedings and EUR 2,000 for the costs and expenses before the Court.

38.  The Court awards a total sum of EUR 3,229.90 for legal costs and expenses.

C.  Default interest

39.  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)  EUR 5,000 (five thousand euros) for non-pecuniary damage;

(ii) EUR 3,229.90 (three thousand two hundred twenty-nine euros

and ninety cents) 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 31 July 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NIELSEN Christos ROZAKIS

Deputy Registrar President