Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 23924/94

C.A.R. srl

against

Italy

REPORT OF THE COMMISSION

(adopted on 10 September 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-38) 3

III. OPINION OF THE COMMISSION

(paras. 39-53) 5

A. Complaint declared admissible

(para. 39) 5

B. Point at issue

(para. 40) 5

C. As regards Article 1 of Protocol No. 1 to the Convention

(paras. 41-52) 5

CONCLUSION

(para. 53) 7

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION 8

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European

Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is an Italian building society having its registered office

in Rome and acting through its legal representative Mr Stefano Cecchi.

3. The application is directed against Italy. The respondent Government were

represented by Mr Umberto Leanza, Head of the Diplomatic Legal Service, Ministry

of Foreign Affairs.

4. The case concerns the impossibility for the applicant company to evict a

group of squatters from its property. The applicant company invokes Article 1 of

Protocol No. 1 to the Convention.

B. The proceedings

5. The application was introduced on 22 September 1993 and registered on 19

April 1994.

6. On 6 September 1995 the Commission (First Chamber) decided, pursuant to

Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application

to the respondent Government and to invite the parties to submit written

observations on its admissibility and merits.

7. The Government's observations were submitted on 8 November 1995. The

applicant company replied on 2 January 1996. Both parties submitted additional

observations on 1 April and 2 April 1996 respectively.

8. On 27 June 1996 the Commission declared admissible the applicant company's

complaint under Article 1 of Protocol No. 1 to the Convention. It declared

inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent to the

parties on 9 July 1996 and they were invited to submit such further information

or observations on the merits as they wished.

10. After declaring the case admissible, the Commission, acting in accordance

with Article 28 para. 1 (b) of the Convention, also placed itself at the

disposal of the parties with a view to securing a friendly settlement. In the

light of the parties' reaction, the Commission now finds that there is no basis

on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First Chamber) in

pursuance of Article 31 of the Convention and after deliberations and votes, the

following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENI?

C. BÃŽRSAN

K. HERNDL

Mrs. M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 10 September 1997 by the Commission

and is now transmitted to the Committee of Ministers of the Council of Europe,

in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach

by the State concerned of its obligations under the Convention.

14. The Commission's decision on the admissibility of the application is

annexed hereto.

15. The full text of the parties' submissions, together with the documents

lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

16. By contract of 19 January 1989, the applicant company let 26 villas and 15

garages it owned in Aprilia (Latina) to the company "X". The latter allowed a

group of Somalis to settle in the buildings.

17. On 11 October 1990, an indefinite number of Somali refugees occupied the

applicant's buildings.

18. In November 1990, the company "X" ceased to pay the rent.

a) The eviction proceedings before the Rome Magistrate

19. On 27 November 1990, the applicant company brought an action before the

Rome magistrate in order to evict "X" on the grounds of non payment of rent; by

decision ("convalida di sfratto per morosità") of 9 January 1991, the magistrate

ordered the eviction of the tenant with the assistance of the police. The

eviction was fixed for 20 January 1991.

20. On 18 January 1991, the applicant served on the tenant the order

("precetto") to vacate the premises.

21. However, the Somali refugees occupying the applicant's property refused to

vacate the premises.

22. Despite numerous requests to the Latina Prefect, the applicant company was

not granted the assistance of the police, as the solution to its problem raised

issues of public order nature. Numerous attempts by a bailiff (15 April, 27 May,

17 October, 14 November 1991, 14 February, 18 May, 8 September, 8 October and 11

December 1992) to evict the Somali refugees were therefore unsuccessful.

b) The proceedings before the Latina Public Prosecutor

23. On 9 January 1993, the applicant filed a criminal complaint with the

Latina Public Prosecutor against the Somali refugees occupying its premises

without any legal title.

24. The Public Prosecutor carried out preliminary investigations on the

situation of the Somali refugees; in particular, he contacted the local

administrative authorities in order to find out what had been or was being done

to find an alternative suitable accommodation for the refugees and to help them

integrate with the local community.

25. On 22 May 1993, the Public Prosecutor requested that the preliminary

investigation against the Somali refugees be discontinued.

26. On 22 June 1993, the applicant opposed the Public Prosecutor's request to

drop the charges against the refugees.

27. By decree of 15 November 1993, the preliminary investigations against the

Somali refugees were discontinued; the Latina investigating judge held that the

refugees had not unlawfully occupied the applicant's buildings, but "had been

taken there in order to receive assistance" ("i somali vi venivano fatti

affluire onde ricevere assistenza"). He therefore considered that it was a civil

rather than a criminal matter, namely a case of eviction of tenants that had to

be settled by civil judges.

c) The proceedings before the Latina Magistrate

28. On 8 February 1993 the applicant applied to the Latina Magistrate,

pointing out that over 300 refugees were refusing to vacate its buildings

despite an enforceable decision, and that its property was deteriorating. It

therefore requested the assistance of the police in evicting the occupants from

its premises.

29. The Latina Magistrate contacted the Lazio administrative authorities that

were responsible for the presence of the Somali refugees in the region. The

local authorities committed themselves to finding a suitable alternative

accommodation for the refugees within a short period of time.

30. By decision of 25 February 1993, the Magistrate considered that the

solution to the applicant's problem was of general interest and raised issues of

public order, and therefore reserved any decision in this respect, awaiting the

intervention of the regional administrative authorities "provided that the

latter intervention takes place within a reasonable period of time".

31. On 11 March 1993, the Magistrate's decision was notified to the regional

administrative authorities.

32. On 4 June 1993, no action having been taken, the applicant once again

applied to the Latina Magistrate and renewed its request for the assistance of

the police.

33. By decision of 30 June 1993, the Latina Magistrate observed that the case

could either be considered as an eviction of tenants - in which case the

competent authority to grant the assistance of the police was the Latina Prefect

- or as an unlawful occupation of property by the Somali refugees - in which

case the competent authority to settle the matter was the Public Prosecutor. The

Magistrate therefore forwarded the applicant's request to both the Latina

Prefect and the Latina Public Prosecutor's Office.

34. Meanwhile, on 25 June 1992 the Aprilia town council paid the gas bill, the

water bill and the electricity bill for the refugees.

35. On 16 March 1993, the Lazio regional authorities paid the electricity bill

for the refugees.

36. On 22 October 1993, the applicant served on the company "X" a second order

to vacate the premises.

37. On 3 February 1994, the occupants vacated the buildings following the

intervention of the Lazio Councillorship of local Public Bodies and Immigration

("Assessorato agli enti locali e all'immigrazione della Regione Lazio"), which

moved them to certain buildings in Anzio.

38. On 12 February 1994, the applicant, with the assistance of a bailiff,

obtained the possession of its buildings.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

39. The Commission has declared admissible the applicant company's complaint

that, despite an enforceable judgment, it has been unable to evict the persons

illegally occupying its buildings for more than three years and has not received

any compensation from the administrative authorities for the significant

financial damages it suffered in terms of both unpaid rent and damage to the

property.

B. Point at issue

40. The only point at issue is whether the impossibility for the applicant

company to recover possession of its building for longer than three years,

coupled with the lack of any compensation for the financial prejudice suffered

in this connection, amounts to a breach of Article 1 of Protocol No. 1 (P1-1).

C. As regards Article 1 of Protocol No. 1 (P1-1) to the Convention

41. Article 1 of Protocol No. 1 (P1-1) to the Convention provides as follows:

"Every natural and 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".

42. The applicant company alleges a breach of this Article on account of the

inaction of the Italian authorities with respect to the prolonged occupation

sine titulo of its property by a group of Somali refugees and on account of the

lack of compensation for the financial prejudice it suffered in this connection.

43. The Government concede that there was an interference with the applicant

company's property rights.

44. The Commission recalls that Article 1 of Protocol No. 1 (P1-1) guarantees

in substance the right to property. It comprises three distinct rules. The

first, which is expressed in the first sentence of the first paragraph and is of

a general nature, lays down the principle of peaceful enjoyment of property. The

second rule, in the second sentence of the same paragraph, covers deprivation of

possessions and subjects it to certain conditions. The third, contained in the

second paragraph, recognises that Contracting States are entitled, amongst other

things, to control the use of property in accordance with the general interest.

The three rules are not "distinct" in the sense of being unconnected: the second

and third rules are concerned with particular instances of interference with the

right to peaceful enjoyment of property, and should therefore be construed in

the light of the general principle laid down in the first rule (see Eur. Court

HR, Pressos Compania Naviera SA and others v. Belgium judgment of 20 November

1995, Series A no. 332, para. 33 with further reference).

45. In the present case, the Commission observes that, even if the applicant

company's right to dispose of its property may have been affected by the

situation complained of, its property right, as such, remained intact. The

Commission therefore considers that the interference in question did not

constitute a deprivation of property within the meaning of the second sentence

of the first paragraph. Neither did it amount to control of the use of property,

as, unlike other cases involving the eviction of tenants (cf. Eur. Court HR,

Spadea and Scalabrino v. Italy and Scollo v. Italy judgments of 28 September

1995, Series A nos. 315-B and C), the non-eviction of the refugees in the

present case was not the result of any legislative measure within the meaning of

the second paragraph of Article 1 (Art. 1-2). The situation complained of

concerned the factual refusal by the competent administrative authorities to

lend their support to the enforcement of the eviction of a number of persons

occupying the applicant company's property without any title: it therefore falls

to be examined under the first sentence of the first paragraph of Article 1

(Art. 1-1). The Commission recalls in this respect that the Contracting States

must not only refrain from interfering with the rights under the Convention, but

also take positive steps to secure the enjoyment of these rights (cf. Eur. Court

HR, Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 17, para.

32).

46. The Commission must therefore determine whether a fair balance was struck

between the demands of the general interest of the community and the

requirements of the protection of the individual's fundamental rights (see,

inter alia, Eur. Court HR, Sporrong and Lönnroth v. Sweden judgment of 23

September 1982, Series A no. 52, p. 26, para. 69; Stran Greek Refineries v.

Greece judgment of 9 December 1994, Series A no. 301-B, p. 87, para. 69).

47. The Government submit that the decision not to grant the applicant company

the assistance of the police was justified in the light of the need of avoiding

the risk of any prejudice to public order. Moreover, the interference at issue

was not long enough to place an excessive burden on the applicant company.

48. The applicant company stresses the significant prejudice it has suffered

and considers that the interference with its property rights was

disproportionate, particularly in the light of the lack of any compensation by

the administrative authorities.

49. The Commission observes that the Prefect justified his refusal to grant

the applicant company police assistance in evicting the squatters by reference

to public order, as the solution to the problem of the Somali refugees was

clearly one of general interest. The eviction was thus postponed until the local

administrative authorities could find a suitable alternative accommodation for

the squatters. However, although the administrative authorities had committed

themselves to do so within a short period of time, in fact it took them more

than three years.

50. The Commission considers that the Prefect, in refusing to grant police

assistance by reference to public order, did not go beyond the margin of

appreciation allowed by Article 1 of Protocol No. 1 (P1-1) (cf. No. 19053/91,

Comm. Report 5.9.95, unpublished, para. 49). The public interest in preserving

public order undoubtedly weighed more in the scale than the applicant company's

wish to recover possession of its property, even if the latter was admittedly

deteriorating.

51. However, in order to ascertain whether the interference at issue was

proportionate to the legitimate aim that it sought to achieve, the Commission

must also take into account the fact that no compensation has been paid to the

applicant company by the State by way of reparation for the prejudice that the

latter had suffered in terms of both unpaid rent and damage to the property, in

connection with the occupation of its property by the Somali refugees over a

period of more than three years until the administrative authorities found them

an alternative accommodation (cf., a contrario, No. 19053/91, already cited,

para. 50).

52. In light of the preceding consideration, the Commission considers that the

necessary balance between the protection of the applicant company's right of

property and the requirements of public order was lacking: the burden that the

applicant company was made to bear was excessive.

CONCLUSION

53. The Commission concludes, unanimously, that in the present case there has

been a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

Menu

C.A.R. srl v. ITALY

C.A.R. srl v. ITALY

LEXI