L.B. v. ITALY - 32542/96 [2002] ECHR 752 (15 November 2002)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

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

1. The case originated in an application (no. 32542/96) 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, Mrs L.B. (“the applicant”), on 6 May 1996.

2. The applicant was represented by Mrs N. Gagliano, a lawyer practising in Florence. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza, and by their co-Agent, Mr V. Esposito.

3. The applicant complained under Article 1 of Protocol No. 1 that she had been unable to recover possession of her flat within a reasonable time. Invoking Article 6 § 1 of the Convention, she 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 First 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 Mr G. Raimondi as ad hoc judge to sit in his place (Article 27 § 2 of the Convention and Rule 29 § 2).

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.

9. Mr and Mrs B. were the owners of an apartment in Florence, which they had let to M.C.B.

10. In a registered letter of 21 February 1987, they informed the tenant that they intended to terminate the lease on expiry of the term on 31 December 1987 and asked her to vacate the premises by that date.

11. In a writ served on the tenant on 24 April 1987, they reiterated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.

12. By a decision of 11 June 1987, which was made enforceable on 23 June 1987, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1988.

14. On 11 January 1989, the applicant served notice on the tenant requiring her to vacate the premises.

15. On 9 May 1989, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.

16. On 18 May 1989, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 11 July 1989.

17. Between 11 July 1989 and 21 May 1998, the bailiff made twenty 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.

18. On 3 July 1998, the tenant vacated the premises and the applicant recovered possession of the flat.

19. 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.

20. The applicant complained that she had been unable to recover possession of her flat within a reasonable time owing to the lack of police assistance. She 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.”

21. In accordance with its case-law, the Court considers that the interference with the applicant’s right to peaceful enjoyment of her possessions amounted to control of the use of property and falls to be examined under the second paragraph of Article 1 (see Immobiliare Saffi, cited above, § 46).

22. The Court has previously expressed the view that the impugned legislation had a legitimate aim in the general interest, as required by the second paragraph of Article 1 (see Immobiliare Saffi, cited above, § 48).

23. The Court reiterates that for the purposes of the second paragraph of Article 1 of Protocol No. 1 an interference must strike a “fair balance” between the demands of the general interest and the requirements of the protection of the individual’s fundamental rights. There must be a reasonable relationship of proportionality between the means employed and the aim pursued. In determining whether this requirement is met, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question. In spheres such as housing, which plays a central role in the welfare and economic policies of modern societies, the Court will respect the legislature’s judgement as to what is in the general interest unless that judgement is manifestly without reasonable foundation (see Immobiliare Saffi, cited above, § 49).

24. The applicant contended that the interference was disproportionate in view of its length and of the financial burden that resulted from not being able to increase the rent. The interference had caused particular hardship in her case, as she had made a statutory declaration that she urgently required the premises as accommodation for her own use.

25. The Government pointed out that the interference with the applicant’s right to the peaceful enjoyment of her property was proportionate to the legitimate aim pursued. They concluded that, taking into consideration the interests of both the landlord and the tenant, the burden imposed on the applicant had not been excessive. The Government pointed out that the statutory measures had been taken in the general interest to protect tenants, regard being had to the inner-city housing crisis and the difficulty in providing adequate housing for low-income tenants who have been evicted.

26. The Court considers that, in principle, the Italian system of staggering the enforcement of court orders is not in itself open to criticism, having regard in particular to the margin of appreciation permitted under the second paragraph of Article 1. However, such a system carries with it the risk of imposing on landlords an excessive burden in terms of their ability to dispose of their property and must accordingly provide certain procedural safeguards so as to ensure that the operation of the system and its impact on a landlord’s property rights are neither arbitrary nor unforeseeable (see, mutatis mutandis, Immobiliare Saffi, cited above, § 54). The Court must thus ascertain whether, in the instant case, the applicant was afforded sufficient guarantees as to be safeguarded against uncertainty and arbitrariness.

27. The Court observes that the owners obtained an order for possession, which became enforceable on 23 June 1987, indicating that the tenant should quit the flat on 31 December 1988. The applicant became the owner of the flat on 6 August 1987. The first attempt by a bailiff to enforce the order for possession took place on 11 July 1989. On account partly of the legislation providing for the staggering of evictions and partly of the lack of police assistance, the applicant only recovered possession of her flat on 3 July 1998, even though she had made a statutory declaration on 9 May 1989 confirming that she urgently needed the flat for her own use.

28. For approximately nine years from the first attempt of the bailiff to enforce the order for possession, the applicant was thus left in a state of uncertainty as to when she would be able to repossess her flat. Although the order for possession was enforceable and the applicant had made a statutory declaration entitling her to priority in the grant of police assistance, she had no means of expediting the process, which depended almost entirely on the availability of police officers. The relevant authorities do not seem to have taken any action whatsoever in response to the statutory declaration by the applicant on 9 May 1989 that she needed the premises for her own use.

29. For approximately nine years after the first access of the bailiff, the applicant was thus left in a state of uncertainty as to when she would be able to repossess her flat.

30. In the light of the foregoing, the Court considers that, in the particular circumstances of this case, an excessive burden was imposed on the applicant; accordingly the balance that must be struck between the protection of the right of property and the requirements of the general interest was upset to the applicant’s detriment.

31. 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...”

32. The applicant complained that she had had to wait nine years and six months to recover possession of her flat after the magistrate’s order was issued. Furthermore, she argued that despite the fact that she had made a statutory declaration that she urgently required the premises as accommodation for her own use, she had had to wait approximately nine years and two months from the date the declaration was made before recovering possession.

33. The Government contested this point. As to the length of the enforcement proceedings, the Government maintain that the delay in providing the assistance of the police is justified by the protection of the public interest.

34. The Court observes that the applicant had originally relied on Article 6 in connection with the complaint regarding the length of the proceedings for possession. The Court nonetheless considers that the instant case must be examined in connection with the more general right to a court.

35. The Court reiterates that the right to a court as guaranteed by Article 6 also protects the implementation of final, binding judicial decisions, which, in States that accept the rule of law, cannot remain inoperative to the detriment of one party (see Immobiliare Saffi, cited above, § 66). Accordingly, the execution of a judicial decision cannot be unduly delayed.

36. In the instant case, the former owners obtained an order for possession on 11 June 1987, which became enforceable on 23 June 1987.

37. Even after she had made the statutory declaration, the applicant was not granted the police assistance. Indeed, the applicant recovered her flat only nine years after the first attempt of the bailiff.

38. The Court considers that a delay of that length in the execution of a final court decision deprives Article 6 § 1 of the Convention of any practical effect.

39. In these circumstances, the Court holds that there has been a violation of the right to a court, as guaranteed by Article 6 § 1 of the Convention.

“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.”

41. The applicant sought reparation for the pecuniary damage she had sustained, which she put at 27,360,000 Italian lire (ITL) [14,130.26 euros (EUR)], being the loss of rent for the period from 11 January 1989 to 3 July 1998, ITL 30,000,000 [EUR 15,493.71] for renovation works in the flat after possession was recovered, ITL 3,001,727 [EUR 1,550.26] for the costs of executing the possession order and ITL 3,934,074 [EUR 2,031.78] for the costs she had incurred when she was evicted of the flat she rented.

42. The Government conceded that the applicant should be awarded the damage, which she had incurred for loss of rent for the excessive length of the proceedings but contested the period calculated by the applicant.

As regards the costs for renovation works in the flat after possession was recovered, the Court agrees with the Government that there is no direct link with the violation that have been found and dismisses that claim.

As regards the costs incurred in the domestic proceedings, the Government argued that the costs of the proceedings on the merits were not related to the alleged violations and that the costs incurred during the enforcement stage were due only for the period that was regarded as being a disproportionate interference with the applicant’s right of property.

43. As regards the costs of proceedings, the Court decides to award the applicant the sum of EUR 1,500.

As to the costs of proceedings the applicant had incurred when she was evicted of the flat she rent, the Court agrees with the Government that there is no direct causal link with the violations that have been found and dismisses that claim.

The Court considers that the applicant must be awarded compensation for the pecuniary damage on the basis of the reimbursement of the rents the applicant had to pay for the flat where she was forced to live in. Having regard to the means of calculation proposed by the applicant, the Court, in the light of the evidence before it and the period concerned, decides to award her on an equitable basis EUR 9,000 under this head.

44. The applicant claimed ITL 20,000,000 [EUR 10,329.14] for non-pecuniary damage.

46. The Court considers that the applicant must have sustained some non-pecuniary damage, which the mere finding of a violation cannot adequately compensate. Therefore, the Court decides to award the applicant, on an equitable basis, EUR 8,000 under this head.

47. The applicant sought reimbursement of her legal costs, which she put at ITL 11,938,699 [EUR 6,165.82] for her costs and expenses before the Court.

48. The Government argued that the costs of the proceedings were not related to the alleged violations and therefore not reimbursable.

49. 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 applicant and are reasonable as to quantum (see the case Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR 1999-V). 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 is a reasonable sum and awards the applicant that amount.

50. 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.

1. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

(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:

(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;

Done in English, and notified in writing on 15 November 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> L.B. v. ITALY - 32542/96 [2002] ECHR 752 (15 November 2002) URL: http://www.bailii.org/eu/cases/ECHR/2002/752.html Cite as: [2002] ECHR 752