CASE OF SPADEA AND SCALABRINO v. ITALY
Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of P1-1;No violation of Art. 14+P1-1
C. Russo
8. Mr Spadea, a lawyer, and Mrs Scalabrino, a university teacher, live in Milan. 9. In April 1982 they bought two adjacent flats with the aim of making their home there. The former owner of the flats had let them to a Mrs B. and a Mrs Z., who paid a rent subject to public-authority control. 10. In a writ served on 13 October 1982 the applicants gave the tenants of the flats notice to quit when the leases expired, on 31 December 1983, and summoned them to appear before the Milan magistrate (pretore). 11. On 22 December 1982 and 13 January 1983 the magistrate formally confirmed the notices to quit, and fixed the date of eviction at 31 December 1984. The orders were made enforceable on 22 December 1982 and 19 January 1983. 12. Pursuant to Legislative Decree no. 12 of 7 February 1985, which became Law no. 118 of 5 April 1985 ("Law no. 118"), the magistrate suspended enforcement of the evictions until 30 January 1986. 13. On 14 March 1986, Mr Spadea and Mrs Scalabrino began proceedings to enforce the orders for possession, as the tenants had still not complied with them. However, on each of three occasions when the bailiff responsible for enforcement went to the flats - 9 June, 9 September and 10 October 1986 - Mrs B. and Mrs Z. refused to leave. They were elderly ladies of modest means and had asked Milan City Council to allocate them low-rent flats. 14. Legislative Decree no. 708 of 29 October 1986, which became Law no. 899 of 23 December 1986, suspended the enforcement of evictions until 31 March 1987. From that date until 31 March 1988, only the Prefect (prefetto) was empowered, in certain cases, to grant police assistance to enforce evictions. 15. On 14 May, 15 June, 22 September, 9 November, 10 December 1987 and 14 January 1988 the bailiff made unsuccessful attempts to enforce the orders for possession. 16. From 8 February 1988 enforcement of evictions was again suspended, initially until 31 December 1988, by Legislative Decree no. 26 of 8 February 1988, which became Law no. 108 of 8 April 1988, and then until 30 April 1989, by Legislative Decree no. 551 of 30 December 1988, which became Law no. 61 of 21 February 1989. 17. In August 1988 Mrs Z. died and the applicants regained possession of one of the flats. Mrs B. left the other in February 1989. In the meantime, on 22 February 1988, Mr Spadea and Mrs Scalabrino had been obliged to buy another flat. 18. On the basis of the Commission's report, Italian legislation on residential property leases may be summarised as follows. 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 evictions. The last statutory extension of all current leases, with the exception of certain cases specifically prescribed by the Law, was introduced by Law no. 392 of 27 July 1978 and remained in force until 31 December 1982, 30 June 1983 or 31 December 1983, depending on the dates on which the leases were signed. It should, however, be noted that, as regards buildings used for purposes other than housing, the statutory extension of current leases prescribed by section 1 (9 bis) of Law no. 118 of 5 April 1985 was declared unconstitutional in a decision (no. 108) handed down by the Constitutional Court on 23 April 1986. In its decision the court held that the statutory restrictions imposed on property rights under Article 42 of the Constitution, with a view to ensuring social justice, made it possible to regard controls imposing restrictions as legitimate, provided that such controls were of an exceptional and temporary nature, but that perpetuating such restrictions was incompatible with the protection of property rights embodied in Article 42 of the Constitution. In its decision the Constitutional Court also pointed out that the statutory six-month extension of leases prescribed by Law no. 118 should not be considered in isolation but within the context of tenancy provisions as a whole. The court drew particular attention to the fact that this extension succeeded other statutory extensions and could mark the beginning of new restrictions on freedom of contract in this field. Moreover, the statutory extension of leases had the effect of prolonging contracts in which the rent, notwithstanding the increases allowed in accordance with rises in the cost of living, were not even approximately in line with current socio-economic conditions. Further, the Law concerned did not give the lessor the possibility of regaining possession of the property except in cases of absolute necessity. The Constitutional Court also held that Law no. 118, inasmuch as it provided for a blanket extension of current leases without taking into consideration the particular economic circumstances of lessors and lessees - as would have been necessary to ensure social justice -, infringed the principle of the equality of citizens before the law embodied in Article 3 of the Constitution. Numerous provisions have established rules for the postponement, suspension or staggering of the enforcement of judicial decisions ordering tenants to vacate the premises they occupy (ordinanze di sfratto). A first suspension was introduced by Legislative Decree no. 795 of 1 December 1984. The provisions set forth therein were incorporated in Legislative Decree no. 12 of 7 February 1985, which became Law no. 118 of 5 April 1985. It covered the period from 1 December 1984 to 30 June 1985. This legislation also provided for the staggered resumption of forcible evictions on 1 July 1985, 30 September 1985, 30 November 1985 or 31 January 1986, depending on the date on which the judgment recording the end of the lease had become enforceable. Section 1 (3) of Law no. 118 stipulated that such suspensions were not applicable if repossession of the premises had been ordered because arrears of rent were owed. Similarly, no suspension could be ordered in the following cases: (a) where, after conclusion of the contract, the lessor required the property for his own use or for that of his spouse or his children or grandchildren, for residential, commercial or professional purposes, or where a lessor who intended to use the premises for one of the above-mentioned purposes (a) offered the tenant similar accommodation at a rent which he could afford and which was not more than 20% higher than the previous rent and (b) undertook to pay the costs of the tenant's removal (Article 59, first subsection, paragraphs 1, 2, 7 and 8, of Law no. 392 of 27 July 1978 ("Law no. 392")); and (b) where, inter alia, a lessor urgently needed to regain possession of his flat as accommodation for himself, his children or his ascendants (Article 3, first paragraph, sub-paragraphs 1, 2, 4 and 5, of Legislative Decree no. 629 of 15 December 1979, which became Law no. 25 of 15 February 1980 ("Law no. 25")). A second suspension was introduced by Legislative Decree no. 708 of 29 October 1986, which became Law no. 899 of 23 December 1986. It covered the period from 29 October 1986 to 31 March 1987 and in sections 2 and 3 provided for the same exceptions as the provisions in the preceding legislation. Law no. 899 of 23 December 1986 also established that the Prefect was competent to determine the criteria for authorising police assistance in evicting recalcitrant tenants, after consulting a committee including representatives of both tenants and landlords. Section 3 (5 bis) of Law no. 899 of 23 December 1986 also provided for the automatic suspension until 31 December 1987 of forcible evictions of tenants entitled to subsidised housing. A third suspension was introduced by Legislative Decree no. 26 of 8 February 1988, which became Law no. 108 of 8 April 1988. It first covered the period from 8 February 1988 to 30 September 1988 and was subsequently extended from the latter date to 31 December 1988. A fourth suspension was introduced by Legislative Decree no. 551 of 30 December 1988, which became Law no. 61 of 21 February 1989, and covered the period up to 30 April 1989. In regions suffering from natural disasters the suspension remained in force until 31 December 1989. With the exception of urgent cases, this Law also provided that police assistance in enforcing evictions would only be authorised in gradual stages over a period of forty-eight months from 1 January 1990 and set up a prefectoral committee responsible for deciding which cases required police intervention most urgently. All the aforementioned laws and decrees also contained provisions relating to the financing of subsidised housing and to housing benefits.