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Cite as: [2003] ECHR 434

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FIRST SECTION

CASE OF TEMPESTI CHIESI AND CHIESI v. ITALY

(Application no. 62000/00)

JUDGMENT

STRASBOURG

31 July 2003

FINAL

31/10/2003

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

In the case of Tempesti Chiesi and Chiesi v. Italy,

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

Mr C.L. ROZAKIS, President,

Mr P. LORENZEN,

Mr G. BONELLO,

Mrs N. VAJIć,

Mrs S. BOTOUCHAROVA,

Mr V. ZAGREBELSKY,

Mrs E. STEINER, judges,

and Mr S. NIELSEN, Deputy Section Registrar,

Having deliberated in private on 8 July 2003,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 62000/00) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Italian nationals, Mrs Gabriella Tempesti Chiesi and Mr Renato Chiesi (“the applicants”), on 12 October 2000.

2. The applicants are represented by Mr I. Donati, a lawyer practising in Florence. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza and their successive co-agents, respectively Mr V. Esposito and Mr F. Crisafulli.

3. On 30 May 2002 the Court declared the application admissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants were both born in 1940 and live in Florence.

5. They are the owners of a flat in Florence, which they had let to A.Q.

6. In a writ served on the tenant on 14 September 1984, the applicants informed him of their intention to terminate the lease on expiry of the term on 31 December 1987 and summoned him to appear before the Florence Magistrate.

7. By a decision of 14 November 1984, which was made enforceable on the same day, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1988.

8. In the meanwhile the tenant died and his wife refused to leave the premises.

9. On 25 September 1989, the applicants made a statutory declaration that they urgently required the premises as accommodation for their son.

10. On 16 November 1989, the applicants served notice on the tenant requiring her to vacate the premises.

11. On 6 December 1989, they served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 31 January 1990.

12. Between 31 January 1990 and 8 February 2001, the bailiff made twenty-one attempts to recover possession. Each attempt proved unsuccessful, as the applicants were never granted the assistance of the police in enforcing the order for possession.

13. In the meanwhile, on 1 December 1998, the applicants made a second statutory declaration that they urgently required the premises as accommodation for their son.

14. Pursuant to section 6 of Law no. 431/98, on 9 July 1999, the tenant asked for a suspension of the enforcement proceedings. The Florence Magistrate suspended the proceedings until 8 February 2001.

15. On 9 March 2001, the applicants recovered possession of the flat.

II. RELEVANT DOMESTIC LAW

16. 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

17. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.

18. 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.

19. 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.

20. Lastly, Law no. 431 of 9December 1998 reformed the tenancies and liberalised the rents.

B. Obligations of the tenant in the case of late restitution

21. 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”.

22. 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.

23. 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.

24. 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.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 AND OF ARTICLE 6 § 1 OF THE CONVENTION

25. The applicants complained of their prolonged inability to recover possession of their flat, owing to the lack of police assistance. They alleged a violation of their right of property, as guaranteed by 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.”

26. The applicants 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...”

27. The Court has previously examined a number of cases raising issues similar to those in the present case and found a violation of Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention (see Immobiliare Saffi, cited above, §§ 46-75; Lunari v. Italy, no. 21463/93, 11 January 2001, §§ 34-46; Palumbo v. Italy, no. 15919/89, 30 November 2000, §§ 33-48).

28. The Court has examined the present case and finds that there are no facts or arguments from the Government which would lead to any different conclusion in this instance. It notes that the applicants had to wait approximately eleven years and one month after the first attempt of the bailiff before being able to repossess the flat.

Consequently, there has been a violation of Article 1 of Protocol No. 1 and of Article 6 § 1 of the Convention in the present case.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

29. Article 41 of the Convention provides:

“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.”

A. Pecuniary damage

30. The applicants sought reparation for the pecuniary damage they had sustained, which they calculated as follows: 50,000,000 Italian lire (ITL) [25,822.85 euros (EUR)], the sum being the loss of rent for the period from August 1992 (when the legislation relaxing on rent restrictions entered into force) to March 2001 (when the applicants recovered possession of their flat).

31. The Government contested the claim.

32. The Court recalls that the applicants made two statutory declarations that they urgently required the flat as accommodation for their son. In such circumstances, they cannot claim any entitlement to reimbursement of loss of rent but they can only claim the reimbursement of such costs and expenses incurred to rent another flat which go beyond the rent received from the tenant. However, they have not made such a claim. Therefore, the Court rejects the claim.

B. Non-pecuniary damage

33. The applicants claimed ITL 30,000,000 [EUR 15,493.70] for the non-pecuniary damage.

34. The Government contested the claim.

35. The Court considers that the applicants must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards them the amount claimed in full (EUR 7,746.85 for each applicant).

C. Costs and expenses

36. The applicants also claimed reimbursement of their legal costs as follows:

- ITL 7,413,000 [EUR 3,828.50] for the costs of the enforcement proceedings;

- EUR 7,250 for their costs and expenses before the Court.

37. As regards the costs of the enforcement proceedings, the Government contested the claim. As regards the costs and expenses before the Court, the Government did not make any submissions.

38. On the basis of the information in its possession and the Court’s case-law, the Court considers it reasonable to award the applicants the sum of EUR 2,000 for the costs of the enforcement proceedings and EUR 2,000 for the costs and expenses before the Court.

39. The Court awards a total sum of EUR 4,000 (EUR 2,000 for each applicant) for legal costs and expenses.

D. Default interest

40. 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.

FOR THESE REASONS, THE COURT UNANIMOUSLY

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

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay each of the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:

(i) EUR 7,746.85 (seven thousand seven hundred forty-six euros and eighty-five cents) for non-pecuniary damage;

(ii) EUR 2,000 (two thousand euros) for legal costs and expenses;

(iii) any tax that may be chargeable on the above 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;

4. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 31 July 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NIELSEN Christos ROZAKIS

Deputy Registrar President