CONCURRING OPINION OF JUDGE SPIELMANN JOINED BY JUDGE LOUCAIDES

(Translation)

1. I n point 5 of the operative provisions of the judgment the Court quite rightly dismissed the claim for just satisfaction in respect of the alleged pecuniary damage.

2. It should be noted at the outset that , if the State had been able to enforce the eviction order, the applicants would normally have been able to recover possession of their flat and would not have incurred any additional expenses in finding alternative accommodation (contrast Bertuccelli v. Italy , no. 37110/97, § 30, 4 December 2003 ). On 17 November 1994 one of the applicants made a statutory declaration to the effect that she urgently needed to recover the flat for her own accommodation.

3. The applicants were not therefore entitled to claim the reimbursement of lost rent. They could only seek the reimbursement of the expenses incurred for the rental of alternative accommodation in so far as those expenses exceeded the amount of the rent paid by the tenant (see, among other authorities, Scamaccia v. Italy , no. 61282/00, § 31, 4 December 2003).

4. Whilst the applicants did make such a claim, they were unable to submit itemised particulars or the necessary supporting documents, as required by Rule 60 of the Rules of Court. That claim therefore had to be dismissed (see, among other authorities , Fabbri v. Italy , no. 58413/00, § 29, 4 December 2003 ).

5. The applicants likewise failed to submit an y figures , supporting documents or itemised particulars in respect of the expenses allegedly incurred for the refurbishment of the ir flat.

6. Those claims also had to be dismissed , as the State ' s obligation under the Convention was to ensure that the eviction order was executed and not to supervise the tenant ' s private conduct. The Court has always dismissed claims by applicants seeking to obtain the reimbursement of any expenses that may have been incurred in repairing damage caused to the flat by a tenant or in respect of unpaid service charges or rent. I n such cases the liability lies with the tenant and applicants have to bring proceedings in domestic courts under the appropriate internal law (see, among other authorities, Auditore v. Italy , no. 35550/97, § 24, 19 December 2002 ).

7. The applicants ' failure to submit figures , supporting documents or itemised particulars of their claims also concerns the expenses they allegedly incurred in moving into their flat. Those claims were th erefore rightly dismissed.

8. For all these reasons, though they are not the ones given by the Court in this judgment, I agree with the dismissal of the claim for just satisfaction in respect of pecuniary damage.

9. However, I do not agree with the reasons given in the judgment for the dismissal of that claim in respect of such damage ( see paragraphs 67-69 of the judgment).

10. The Court ' s reasoning, which on this precise point follows that of the Mascolo v. Italy judgment (no. 68792/01, § 55, 16 December 2004) , raises a serious question affecting the interpretation of Article 41 of the Convention, which would have been sufficient in itself to justify the relinquishment of jurisdiction in favour of the Grand Chamber. It would have been necessary to do so, in any event, if the Chamber had adopted an approach that differed from that of the T hird S ection in Mascolo .

11. Saving an objection by one of the parties to the case, relinquishment in favour of the Grand Chamber would thus have been necessary and, moreover, it would have been preferable if the Court had departed from its approach in Mascolo .

12. It should be borne in mind that, in all cases before the Court, it is the international responsibility of the State that counts. Governments are accountable under the Convention for the acts of their authorities or of any other public body to which a breach of the Convention may be imputed in the domestic system (see, mutatis mutandis , Foti and Others v. Italy , judgment of 10 December 1982, Series A no. 56, p. 21, § 63).

13. Accordingly, a State only becomes responsible under the Convention when an alleged violation can be imputed to it (see, mutatis mutandis , Assanidz e v. Georgia [GC], no. 71503/01, § 137, ECHR 2004- II).

14. The principle underlying just satisfaction awards is well-established: the applicant should , as far as possible, be put in the position he would have enjoyed had the proceedings complied with the Convention ' s requirements. The Court will award financial compensation under Article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found , as a State cannot be required to pay damages in respect of losses for which it is not responsible (see, mutatis mutandis , Kingsley v. the United Kingdom [GC], no. 35605/97, § 40, ECHR 2002- IV).

15. In its reasoning in the present case, the Court stated in substance that the applicants we re entitled to bring proceedings in the civil courts by lodging a claim for compensation against their former tenant (Article 1591 of the Civil Code), as the breach of the applicants ' right to the peaceful enjoyment of their property was mainly the consequence of the tenant ' s unlawful conduct ( see paragraphs 67 - 68 of the judgment).

16. I do not agree with th at approach.

17. In asserting that the violation of the applicants ' right to peaceful enjoyment of their property was mainly the consequence of the tenant ' s unlawful conduct, the Court itself acknowledg ed that the violation in question was not exclusively the consequence of that conduct.

18. In the instant case, as the violations (see paragraphs 51-55 of the judgment) were constituted by the protracted failure to execute the eviction order, it should be accepted that the responsibility of the State was incurred (see, among other authorities, Scollo v. Italy , judgment of 28 September 1995 , Series A no. 315- C, p. 55, § 44).

19. If the breach of the applicants ' right to the peaceful enjoyment of their property is not exclusively the consequence of the tenant ' s conduct, but also stems from the protracted failure to execute the eviction order – something for which the State is responsible – there is nothing in principle to preclude an award of just satisfaction , provided , among other requirements , that the claim under Article 41 of the Convention also satisfies the conditions of Rule 60.

20. In paragraph 68 of the judgment, the Court state s that the violation by the State of Article 6 of the Convention wa s procedural in nature and s ubsequent to the tenant ' s own conduct.

21. I do not share th at view.

22. To be precise, I am of the opinion that it was the protracted failure to execute the eviction order that enabled the tenant to remain in the flat. The tenant ' s conduct was thus subsequent to , or at least concurrent with , the State ' s inactivity, and such inactivity conveyed a suggestion of impunity, verging on encouragement not to comply with a judicial decision. Far from simply being subsequent to the tenant ' s conduct, the violation of Article 6 of the Convention can be regarded, at least in part, as having occurred prior to or concurrently with that conduct. Far from simply being procedural, the violation wa s one of the causes of the damage. There is clearly a well-established causal link between the violation and at least part of the damage sustained by the applicants.

23. Consequently, the State and the tenant are jointly and severally liable for the damage caused.

24. This joint liability necessarily implies that the applicants had a choice between claiming compensation from the State, under Article 41 of the Convention, and bringing an action against their former tenant under Article 1591 of the Civil Code.

25. Moreover, since execution of a judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention (see, among other authorities, Hornsby v. Greece , judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, pp. 510- 11, § 40), the implementation of a judicial decision cannot be regarded as a secondary obligation, but, on the contrary, as a principal obligation of the State, regardless of its nature [1] .

26. Under these circumstances , I consider that Article 1591 of the Civil Code is not a legal instrument liable to prevent the Court from examining or ruling on the merits of the applicants ' claims. To maintain the contrary would imply, firstly, that the State ' s inactivity can have absolutely no repercussions, and, secondly, that the applicants have no guarantee of obtaining redress for their loss, bearing in mind that the tenant may, in the meantime, have disappeared or become insolvent. It should also be noted that Article 1591 of the Civil Code provides for ordinary proceedings which can extend over three levels of jurisdiction. The Court has, on many occasions, identified a practice incompatible with the Convention in Italy because of an accumulation of failures to comply with the “reasonable time” requirement (see, for example, Bottazzi v. Italy [GC] , no. 34884/97, § 22, ECHR 1999- V). Accordingly, there is also a significant risk that the applicants would have to wait a long time for the outcome of any proceedings under Article 1591 of the Italian Civil Code.

27. This principle concerning the interpretation of Article 41 (formerly Article 50) of the Convention has been established by the Court in a number of precedents , and in particular in De Wilde , Ooms and Versyp v. Belgium ( (Article 50), Series A no. 14, judgment of 10 March 1972 , pp. 8-9, § 16 ) , in which it ruled as follows:

“16. In support of its plea of inadmissibility, the Government put forward a second argument based on Article 50: as they had not exhausted domestic remedies, the applicants had not established, according to the Government, that Belgian internal law ' allows only partial reparation to be made for the consequences ' of the violation found by the judgment of 18 June 1971; it followed that their claims for damages were inadmissible.

In the Court ' s opinion, the part of the sentence just quoted states mere ly a rule going to the merits. If the draftsmen of the Convention had meant to make the admissibility of claims for ' just satisfaction ' subordinate to the prior exercise of domestic remedies they would have taken care to specify this in Article 50 as they did in Article 26 , combined with Article 27 (3), in respect of petitio ns addressed to the Commission. In the absence of such an explicit indication of their intention, the Court cannot take the view that Article 50 enunciates in substance the same rule as Article 26.

Moreover, Article 50 has its origin in certain clauses which appear i n treaties of a classical type – such as, Article 10 of the German Swiss Treaty on Arbitration and Conciliation, 1921, and Article 32 of the Geneva General Act for the Pacific Settlement of International Disputes, 1928 – and have no connection with the rule of exhaustion of domestic remedies.

In addition, if the victim, after exhausting in vain the domestic remedies before complaining at Strasbourg of a violation of his rights, were obliged to do so a second time before being able to obtain from the Court just satisfaction, the total length of the procedure instituted by the Convention would scarcely be in keeping with the idea of the effecti ve protection of Human Rights. Such a requirement would lead to a situation incompatible with the aim and object of the Convention.” [2]

28. In the above-cited judgment of 10 March 1972 in the De Wilde , Ooms and Versyp case, the Court also stated as follows in paragraph 20:

“ ...

The mere fact that the applicants could have brought and could still bring their claims for damages before a Belgian court does not therefore require the Court to dismiss those claims as being ill-founded any more than it raises an obstacle to their admis sibility ... ” [3]

29. Moreover, concerning the failure to use the remedy provided for under Article 1591 of the Civil Code, the Third Section of the Court, in its admissibility decision in Coggiola and Alba v. Italy ( ( dec.), no. 28513/02, 24 February 2005), dismissed the objection of non-exhaustion of domestic remedies in the following terms:

“ B. Failure to use the remedy under Article 1591 of the Civil Code

The Government further submitted that domestic remedies had not been exhausted, as the applicants had failed to use the remedy provided for under Article 1591 of the Civil Code.

The applicants observed that they were unable, under Article 1591 of the Civil Code, to obtain compensation for the non-pecuniary damage they had suffered. In any event, they argue d that in view of the limit on the compensation that could be claimed for pecuniary damage, they would have been awarded an insignificant sum in relation to the loss actually sustained.

With regard to the second objection, the Court considers that an action under Article 1591 of the Civil Code – a provision requiring an individual to fulfil an obligation towards another individual – is not an effective way of ensuring that the State acknowledges the alleged breach and awards compensation. In this connection, the Court reiterates that it is only where the national authorities acknowledge a violation of the Convention on the part of the State , and grant reparation , that an applicant will lose his or her standing as a ' victim ' (see, mutatis mutandis , Huart v. France , no. 55829/00, 25 November 2003). Consequently, the Government ' s objection must be dismissed.” [4]

30. I find it inconsistent to dismiss the objection of non-exhaustion of domestic remedies whilst accepting, as in the present case, that Article 1591 of the Civil Code provides an adequate remedy in terms of just satisfaction.

31. It may be added that, in the present case, proceedings under Article 1591 of the Civil Code would normally result in no more than a token award of compensation, being limited, during the periods of statutory suspension of enforcement, to 20% of the rent, which in turn is already limited in most cases as it is fixed by law (see paragraphs 20 and 24 of the judgment). Any possible action under domestic law must therefore be assessed in the light of those conditions . I would point out that, in accordance with the Court ' s case-law, the effectiveness of an action may also depend on the level of compensation (see, among other authorities, Paulino Tom á s v. Portugal (dec .), no. 58698/00, ECHR 2003- VIII , and Gouveia Da Silva Torrado v. Portugal (dec.), no. 65305/01, 27 March 2003 ).

32. In addition, in the present case, the Government failed to produce any precedents to show that landlords have been successful in such proceedings.

33. Concerning the risk of double compensation , it should be noted that, in principle , the existence of Article 1591 of the Civil Code would not lead to two awards, one by domestic courts and another potentially by this Court, in respect of the same damage. Even though the damage may be the same , liability is borne on two distinct levels, that of the State and that of the tenant.

34. In practice, too, d ouble compensation can be avoided.

35. I f the applicants had already received compensation prior to th is Court ' s judgment, the Court would have been informed of the reimbursement that they had succeeded in obtain ing through the domestic courts.

36. Similarly, the domestic courts, in examining a hypothetical case referred to them after an award of just satisfaction by this Court in respect of pecuniary damage, could take account of any sum that the Court m ight have awarded to the applicants (see, mutatis mutandis , Terazzi S.r.l. v. Italy (friendly settlement), no. 27265/95, 26 October 2004).

37. That is why I disagree with the reasons given in the judgment for the dismissal of the claim for just satisfaction in respect of pecuniary damage. That reasoning, even though it is consistent with that of the Mascolo judgment, is nevertheless at odds with the Court ' s traditional approach, which is well illustrated in the De Wilde , Ooms and Versyp judgment cited above and has since been confirmed in many other judgments.

38. It would thus have been preferable for the Chamber to have relinquished jurisdiction in favour of the Grand Chamber, provided there was no objection by one of the parties.

[1] 1. It is appropriate in this connection to point out that on 9 September 2003 the Committee of Ministers adopted a r ecommendation ( Rec(2003)17 ) concerning the enforcement of judicial decisions. It a cknowledg es that the rule of law is a principle that can only be a reality if citizens can, in practice, assert their legal rig hts and challenge unlawful acts. It calls for greater efficiency and fairness in the enforcement of judgments in civil cases , to strike a positive balance between the rights and interests of the parties to the enforcement process . Failing that, “ other forms of ‘ private justice ’ may flourish and have adverse consequences on the public’s confidence in the legal system and its credibility ”.

[2] 1. See, to the same effect , Ringeisen v. Austria (Article 50), judgment of 22 June 1972, Series A no. 15, p. 9, § 22; König v. Germany (Article 50), judgment of 10 March 1980, Series A no. 36, pp. 14-15, § 15; Artico v. Italy , judgment of 13 May 1980, Series A no. 37, p p. 20-21, § 44; Guzzardi v. Italy , judgment of 6 November 1980, Series A no. 39, pp. 41-42, § 113; Eckle v. Germany (Article 50), judgment of 21 June 19 83, Series A no. 65, p. 7, § 13; Bozano v. France , judgment of 18 December 1986, Series A no. 111, pp. 28-29, § 66; Barberà , Messegué and Jabardo v. Spain (Article 50), judgment of 13 June 1994, Series A no. 285- C, p. 57, § 17; and OÄŸur v. Turkey [GC] , no. 21594/93, § 98, ECHR 1999- III.

[3] 2. See, to the same effect , König v. Germany (Article 50), judgment of 10 March 1980, Series A no. 36, pp. 14-15, § 15; Artico v. Italy , judgment of 13 May 1980, Series A no. 37, p p. 20-21, § 44; and Eckle v. Germany (Article 50), judgment of 21 June 19 83, Series A no. 65, p. 7, § 13.

[4] 1. See also, to the same effect , Scorzolini v. Italy (dec.), no. 15483/02, 24 February 2005 ; Comellini v. Ital y (d e c.), no. 15491/02, 24 February 2005 ; and Cuccaro Granatelli v . Ital y (d e c.), n o. 19830/03, 24 February 2005 .