Information Note on the Court’s case-law 8

July 1999

Immobiliare Saffi v. Italy [GC] - 22774/93

Judgment 28.7.1999 [GC]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Staggering of the granting of police assistance to enforce eviction order: violation

Article 6

Civil proceedings

Article 6-1

Access to court

Absence of possibility of court review of prefectoral d ecisions staggering the granting of police assistance in enforcement of eviction orders: violation

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Application to Constitutional Court: preliminary objection dismissed

Application to administrative courts in respect of decisions staggering the granting of police assistance for enforcement of eviction orders: preliminary objection dismissed

(Extract from press release)

Facts : The application was brought by Immobiliare Saffi, an Italian construction company. Following a corporate merger in 1988 Immobiliare Saffi became the owner of an apartment in Livorno that had been let. Although the tenancy had expired on 31 December 1983 and an order for possession had been made by the Livorno Magistrate, the tenant had refused to vacate. Despite numerous attempts, the bailiffs were unable to enforce the order, as, under the statutory provisions for the staggering or suspension of eviction s, the applicant company was not entitled to police assistance in enforcing the order for possession. It did not recover possession of the apartment until April 1996, after the death of the tenant.

The applicant company complained that its right to the pea ceful enjoyment of its possessions as guaranteed under Article 1 of Protocol No. 1 to the Convention had been infringed as it had been unable to recover possession of the apartment; it also complained of breaches of Article 6 § 1 in that it had been denied access to a court regarding the provision of police assistance and the enforcement proceedings had been unreasonably protracted.

Law : Government’s preliminary objections: The Government had maintained that the applicant company had not exhausted domestic remedies, as it had failed to issue proceedings in the administrative courts challenging the refusal of police assistance and to raise the constitutionality of the legislative provisions concerned. As regards the first limb of the objection, with regard to the period before 1 January 1990 the Court observed that, as the enforcement of orders for possession had been suspended by statute and Immobiliare Saffi did not satisfy the necessary conditions to escape suspension, an application to the administrative c ourts would have had no prospects of success. As to the period after 1 January 1990, the Court observed that requests for police assistance in enforcing orders for possession had to be dealt with in order of priority, as determined according to criteria wh ich the prefect had to establish. The administrative courts would only have had jurisdiction to set aside decisions of the prefect that failed to apply the criteria. In the case before the Court, Immobiliare Saffi’s complaint was not that the prefect’s dec isions had been arbitrary, but that the application of the criteria for determining priority had had a disproportionate impact on its right of property. Accordingly, an application to the administrative courts could not be regarded as having been an effect ive remedy. As to the second limb of the objection – the constitutionality issue –, the Court observed that in the Italian legal system an individual was not entitled to apply directly to the Constitutional Court for review of a law’s constitutionality. Ac cordingly, such an application could not be a remedy whose exhaustion was required under Article 35 of the Convention. The objection had to be dismissed.

Article 1 of Protocol No. 1 to the Convention

(a) The applicable rule

The Court held that the impleme ntation of the legislative measures had allowed the tenant to remain in the apartment and so undoubtedly amounted to control of the use of property, such that the second paragraph of Article 1 was applicable.

(b) Compliance with the conditions in the secon d paragraph

(i) Aim of the interference : The Court found the impugned legislation had a legitimate aim in the general interest as the simultaneous eviction of a large number of tenants would undoubtedly have led to considerable social tension and jeopardis ed public order.

(ii) Proportionality of the interference : The Court reiterated that an interference, particularly one falling to be considered under the second paragraph of Article 1 of Protocol No. 1, had to strike a “fair balance” between the demands of the general interest and the requirements of the protection of the individual's fundamental rights. In spheres such as housing, which played a central role in the welfare and economic policies of modern societies, the Court would respect the legislature's judgment as to what was in the general interest unless that judgment was manifestly without reasonable foundation. The Court observed that, in order to deal with the chronic housing shortage, the Italian Government had adopted a series of emergency measur es designed to control rent increases and to extend the validity of existing leases. In 1982 and 1983, when the last statutory extension had expired, the Italian State had considered it necessary to resort to emergency provisions to suspend the enforcement of non-urgent orders for possession. Those legislative measures could reasonably be regarded as having been appropriate to achieve the legitimate aim pursued. Subsequently, when the final period of suspension of evictions had ended, the Italian State had considered it appropriate for orders for possession to be enforced in cases to which the suspension rules did not apply, according to an order of priority established by the prefect after consulting the prefectoral committee. On the other hand, non-priorit y cases, such as the one before the Court, were to be enforced within a maximum period of four years starting on 1 January 1990. The Court considered that, in principle, a system of temporary suspension or staggering of the enforcement of court orders foll owed by the reinstatement of the landlord in his property was not in itself open to criticism, having regard in particular to the margin of appreciation permitted under the second paragraph of Article 1. However, the Court observed that the Italian system suffered from a degree of inflexibility:  by providing that cases in which the lease had been terminated on the ground that the landlord urgently needed to recover the apartment for himself or his family should always be given priority, it had automaticall y made the enforcement of non-urgent orders for possession dependent on there being no requests warranting priority treatment. It followed that, since there were always a large number of priority requests outstanding, non-urgent orders were in practice nev er enforced after January 1990. The provision of police assistance, which the prefect determined by reference to an order of priority, had therefore ended up depending almost entirely on the volume of prior-ranking requests for police assistance and the nu mber of police officers at the prefect’s disposal. For approximately eleven years Immobiliare Saffi had thus been left in a state of uncertainty as to when it would be able to repossess its apartment. It could not apply to either the judge dealing with the enforcement proceedings or the administrative court. It had had no means of compelling the Government to take into account any particular difficulties it might encounter as a result of the delay in the eviction and no prospect of obtaining compensation th rough the Italian courts for the protracted wait, one during which it had been unable to sell or let the apartment at market value. Nothing in the file suggested that the tenant occupying the applicant company's premises had deserved any special protection . In the light of the foregoing, the Court agreed with the Commission that the system of staggering the enforcement of orders for possession, coupled with what had already been a six-year wait because of the statutory suspension of the enforcement of such orders, had imposed an excessive burden on the applicant company and accordingly upset the balance that had to be struck between the protection of the right of property and the requirements of the general interest. Consequently, there had been a violation of Article 1 of Protocol No. 1.

Conclusion : violation (unanimously).

Article 6 § 1 of the Convention: The Court observed that the applicant company had originally relied on Article 6 in connection with its complaint regarding the length of the proceedings for possession. Like the Commission, the Court nonetheless considered that the case had firstly to be examined in connection with the more general right to a court.

(a) Whether Article 6 was applicable : The Court observed that the applicant company had iss ued proceedings before the Livorno Magistrate for an order confirming termination of the lease and requiring the tenant to vacate the premises. As the tenant did not contest termination, the only outstanding point had concerned the date of repossession. Fo r so long as that date was put back owing to the tenant’s refusal to leave voluntarily, which entailed a de facto extension to the lease and a subsequent restriction on the applicant company’s right of property, there had continued to be a “dispute” ( conte station ) for the purposes of Article 6. In any event, the Court reiterated that the right to a court would be illusory if a Contracting State's domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one p arty. Execution of a judgment given by any court had to be regarded as an integral part of the “trial” for the purposes of Article 6, which was therefore applicable.

(b) Compliance with Article 6 : The Court accepted that a stay of execution of a judicial d ecision for such period as was strictly necessary to enable a satisfactory solution to be found to public-order problems could be justified in exceptional circumstances. The case before the Court did not, however, concern an isolated refusal by the prefect to provide police assistance, owing to the risk of a serious disturbance of public order. The magistrate’s decision regarding the date by which the tenant was required to vacate the premises had been reopened by statutory intervention. The legislature had conferred a power, and possibly a duty, on prefects, as the authority responsible for maintaining public order, to intervene systematically in the enforcement of orders for possession, while at the same time defining the scope of that power. The postponem ent of the date by which the premises had to be vacated had rendered nugatory the Livorno Magistrate’s decision, which had been made on the basis of the very same factors. In addition, the Court observed that the assessment whether it was appropriate subse quently to stay enforcement of the order for possession and therefore de facto to extend the lease had not been subject to any effective review by the courts, since the scope of judicial review of the prefect’s decision had been limited to verifying whethe r he had complied with the criteria governing the order of priority. Legislative intervention should not prevent, invalidate or unduly delay execution of a decision, still less, undermine its substance. In the instant case, from the moment the prefect had become the authority responsible for determining when the order for possession would be enforced, and given that there could be no effective judicial review of his decisions, the applicant company had been deprived of its right under Article 6 § 1 of the C onvention to have its dispute ( contestation ) with its tenant decided by a court. That situation was incompatible with the principle of the rule of law. Consequently, there had been a violation of Article 6 § 1 of the Convention.

Conclusion : violation (unan imously).

As to the complaint concerning the length of the proceedings, the Court considered that it had to be regarded as having been absorbed by the preceding complaint.

Article 41 of the Convention:  The applicant company had claimed (a) 6,274,408 Itali an lire (ITL), for bailiffs’ and lawyers’ fees incurred in the enforcement proceedings; (b) ITL 37,200,000, for loss of rent; and (c) ITL 564,179,000, as it had not been able to realise the property. It had also sought ITL 20,000,000 for non-pecuniary dama ge. Under (a), the Court awarded the sum of ITL 2,832,150 only, being the amount of costs and expenses that were shown to have been actually and necessarily incurred and reasonable in amount. As to (b), the Court made an award up to the point when Immobili are Saffi recovered possession of its apartment (ITL 25,608,000). The Court dismissed the claim under (c) as there was no evidence that the applicant company had attempted, but had found itself unable, to sell the property. As regards non-pecuniary damage, the Court considered that it was unnecessary to examine whether a commercial company could allege that it had sustained non-pecuniary damage through anxiety as, having regard to the facts of the case, it had decided to make no award under that head. The C ourt awarded ITL 5,000,000 in respect of costs incurred before the Commission.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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