CASE OF MARIGLIANO v. ITALY
Violation of P1-1;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Christos Rozakis
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. 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. 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.