CASE OF POLLIFRONE v. ITALY
Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Christos Rozakis
4. The applicant was born in 1962 and lives in Livorno. 5. Her grandmother was the owner of a flat in Livorno, which she had let to I.B.C. 6. In a registered letter of 6 May 1987, the applicant's grandmother informed the tenant that she intended to terminate the lease on expiry of the term on 1 January 1988 and asked her to vacate the premises by that date. 7. The tenant told the applicant's grandmother that she would not leave the premises and she fell in rent arrears. 8. In a writ served on the tenant on 11 July 1989, the applicant's grandmother reiterated her intention to terminate the lease and summoned the tenant to appear before the Livorno Magistrate. 9. By a decision of 31 July 1989, which was made enforceable on the same day, the Livorno Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 1 January 1991. 10. On 9 August 1991, the applicant's grandmother died and the applicant inherited the apartment. 11. On 6 November 1991, the applicant served notice on the tenant requiring her to vacate the premises. 12. On 22 January 1992, she informed the tenant that the order for possession would be enforced by a bailiff on 19 February 1992. 13. On 12 November 1992, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself. 14. Between 19 February 1992 and 3 October 2000, the bailiff made fourteen 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. 15. In the meanwhile, on 10 July 1997, the applicant made a second statutory declaration that she urgently required the premises as accommodation for herself. 16. On an unspecified date of June 2001, the applicant recovered possession of the flat. 17. 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. 18. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows. 19. 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. 20. 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. 21. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents. 22. 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.” 23. 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 no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat. 24. 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. 25. 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.