CASE OF SORRENTINO PROTA v. ITALY
No violation of P1-1 with regard to one set of proceedings;No violation of Art. 6-1 with regard to one set of proceedings;Violation of P1-1 with regard to other proceedings;Violation of Art. 6-1 with regard to other proceedings;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
Christos Rozakis
5. The applicant was born in 1953 and lives in Positano. 6. She is the owner of five flats in Castellammare di Stabia (Naples), that she had let to different tenants. 7. In a registered letter of 24 May 1991, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1991 and asked him to vacate the premises by that date. 8. In a writ served on the tenant on 14 May 1992, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Naples Magistrate. 9. By a decision of 20 May 1992, which was made enforceable on 27 May 1992, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 20 May 1993. 10. On 11 September 1995, the applicant served notice on the tenant requiring him to vacate the premises. 11. On 23 October 1995, she informed the tenant that the order for possession would be enforced by a bailiff on 4 November 1995. 12. Between 4 November 1995 and 3 December 1998, the bailiff made seven attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. 13. On an unspecified date in 1999, the applicant recovered possession of the flat. 14. In a registered letter of 24 June 1991, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1991 and asked him to vacate the premises by that date. 15. In a writ served on the tenant on 17 April 1992, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Naples Magistrate. 16. By a decision of 22 June 1992, which was made enforceable on 17 July 1992, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 22 June 1993. 17. On 11 September 1995, the applicant served notice on the tenant requiring him to vacate the premises. 18. On 23 October 1995, she informed the tenant that the order for possession would be enforced by a bailiff on 4 November 1995. 19. Between 4 November 1995 and 28 October 1997, the bailiff made five attempts to recover possession. Each attempt proved unsuccessful, as the applicant the applicant was not entitled to police assistance in enforcing the order for possession. 20. Following the entry into force of Law 431/98, the enforcement of the evictions proceedings was suspended until 31 January 2000. 21. In March 2000, the tenant entered into a new lease. 22. In a writ served on the tenant on 11 May 1992, the applicant informed the tenant of her intention to terminate the lease on expiry of the term on 8 December 1992 and summoned him to appear before the Naples Magistrate. 23. By a decision of 20 May 1992, which was made enforceable on 25 September 1992, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 20 May 1993. 24. On 11 September 1995, the applicant served notice on the tenant requiring him to vacate the premises. 25. On 23 October 1995, she informed the tenant that the order for possession would be enforced by a bailiff on 4 November 1995. 26. Between 4 November 1995 and 25 November 1999, the bailiff made twelve attempts to recover possession. Each attempt proved unsuccessful as the applicant was not entitled to police assistance in enforcing the order for possession. 27. On 24 March 2000, the applicant recovered possession of the flat. 28. In a registered letter of 24 May 1991, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1991 and asked him to vacate the premises by that date. 29. In a writ served on the tenant on 7 May 1992, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Naples Magistrate. 30. By a decision of 20 May 1992, which was made enforceable on 27 May 1992, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 20 May 1993. 31. On 1 October 1992, I.R. died, F.E. succeeded in the lease. 32. On 23 October 1995, the applicant served notice on the tenant requiring him to vacate the premises. 33. On 10 October 1995, she informed the tenant that the order for possession would be enforced by a bailiff on 2 December 1995. 34. Between 2 December 1995 and 27 October 1997, the bailiff made five attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. 35. Following the entry into force of Law 431/98, the enforcement of the evictions proceedings was suspended until 31 January 2000. 36. On 24 March 2000, the applicant recovered possession of the flat. 37. In a registered letter of 24 May 1991, the applicant informed the tenants that she intended to terminate the lease on expiry of the term on 8 February 1992 and asked them to vacate the premises by that date. 38. In a writ served on the tenants on 8 May 1992, the applicant reiterated her intention to terminate the lease and summoned the tenants to appear before the Naples Magistrate. 39. By a decision of 20 May 1992, which was made enforceable on 27 May 1992, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 20 March 1993. On 23 October 1995, the applicant served notice on the tenants requiring them to vacate the premises. 40. On 10 November 1995, she informed the tenants that the order for possession would be enforced by a bailiff on 2 December 1995. 41. Between 2 December 1995 and 28 October 1997, the bailiff made five attempts to recover possession. Each attempt proved unsuccessful as, the applicant was not entitled to police assistance in enforcing the order for possession. Following the entry into force of Law 431/98, the enforcement of the evictions proceedings was suspended until 31 January 2000. 42. On 17 March 2000, the applicant recovered possession of the flat. 43. 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. Lastly, for some cases, a suspension of the enforcement of the orders for possession until 30 June 2004 was introduced by Legislative Decree no. 147 of 24 June 2003, which became Law no. 200 of 1 August 2003. 44. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows. 45. 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. 46. 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. 47. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents. 48. 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”. 49. 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. 50. 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. 51. 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.