L.M. v. ITALY - 41610/98 [2003] ECHR 143 (3 April 2003)

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

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

1. The case originated in an application (no. 41610/98) against the Italian Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mrs L.M. (“the applicant”), on 12 March 1998. The President of the Chamber acceded to the applicant's request not to have her name disclosed (Rule 47 § 3 of the Rules of Court).

2. The applicant was represented by MM U. and F. Cefala, lawyers practising in Milan. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza, and by their successive co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli.

3. The applicant complained under Article 1 of Protocol No. 1 that she had been unable to recover possession of her flat within a reasonable time. Invoking Article 6 § 1 of the Convention, she further complained about the length of the eviction proceedings.

4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

5. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. Mr V. Zagrebelsky, the judge elected in respect of Italy, withdrew from sitting in the case (Rule 28). The Government appointed Mr L. Ferrari Bravo as ad hoc judge to sit in his place (Article 27 § 2 of the Convention and Rule 29 § 2).

7. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section.

9. The applicant is the owner of an apartment in Milan, which she had let to D.D'A.M.

10. In a registered letter of 3 October 1984, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1985 and asked her to vacate the premises by that date.

11. On 23 October 1985, she served a notice to quit on the tenant and summoned her to appear before the Milan Magistrate.

12. By a decision of 16 October 1986, which was made enforceable on 19 November 1986, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 June 1988.

13. On 30 June 1988 and on 2 May 1989, the applicant served notice on the tenant requiring her to vacate the premises.

14. On 1 June 1989, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 27 June 1989.

15. Between 27 June 1989 and 25 November 1997, the bailiff made thirty-one attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the suspension for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.

16. On 27 December 1997, the applicant recovered possession of the apartment, because the tenant spontaneously vacated the premises.

17. The relevant domestic law is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.

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

18. The applicant complained that she had been unable to recover possession of her flat within a reasonable time owing to the lack of police assistance. She alleged a violation of 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.”

19. The applicant 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...”

20. The Court has on several previous occasions decided cases raising similar issues as 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, §§ 46-66; Lunari v. Italy, no. 21463/93, 11 January 2001, §§ 34-46; Palumbo v. Italy, no. 15919/89, 30 November 2000, §§ 33-47).

21. 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 case. The Court refers to its detailed reasons in the judgments cited above and notes that in this case the applicant has had to wait eight years and six months after the first attempt of the bailiff before repossessing the flat.

22. 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.

“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.”

24. The applicant sought reparation for the pecuniary damage she had sustained, which she put at 51,000,000 Italian lire (ITL), [EUR 26,339.30] being the loss of rent for the period from 27 June 1989 to 27 December 1997, and ITL 4,412,550 [EUR 2,278.89] for the costs of executing the possession order.

25. The Government challenged the criteria that had been used for calculating the loss of profits and contested also the period calculated by the applicant.

As regards the costs incurred in the domestic proceedings, the Government argued that the costs of the proceedings on the merits were not related to the alleged violations and that the costs incurred during the enforcement stage were due only for the period that was regarded as being a disproportionate interference with the applicant's right of property.

26. The Court considers that the applicant must be awarded compensation for the pecuniary damage resulting from the loss of rent (see Immobiliare Saffi, cited above, § 79). Having regard to the means of calculation proposed by the applicant, the Court, in the light of the evidence before it and the period concerned, decides to award her on an equitable basis 13,500 euros (EUR) under this head.

As regards the costs of the enforcement proceedings, the Court considers that they must be reimbursed in part (see the Scollo v. Italy judgment of 28 September 1995, Series A no. 315-C, p. 56, § 50). It considers the means of calculation proposed by the applicant to be a reasonable starting point. However, in the light of the evidence before it and the period concerned, and ruling on an equitable basis, it awards her 2,000 euros (EUR) under this head

27. The applicant claimed ITL 50,000,000 [EUR 25,822.84] for the non-pecuniary damage.

28. The Government submitted that a finding of a violation would in itself constitute sufficient just satisfaction. It submitted that in any event the amount claimed was excessive. The Government stressed that the applicant had failed to adduce evidence of non-pecuniary damage sustained as a result of the alleged violation.

29. The Court considers that the applicant must have sustained some non-pecuniary damage which the mere finding of a violation cannot adequately compensate. Therefore, the Court decides, on an equitable basis, to award EUR 3,000 under this head.

30. The applicant sought reimbursement of her costs and expenses before the Commission and the Court, which she put at ITL 10,446,000 [EUR 5,394.91].

31. According to the Court's case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum. In the present case, on the basis of the information in its possession and the above-mentioned criteria, the Court considers that EUR 2,000 is a reasonable sum and awards the applicant that amount.

32. 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.

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

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

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

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You are here: BAILII >> Databases >> European Court of Human Rights >> L.M. v. ITALY - 41610/98 [2003] ECHR 143 (3 April 2003) URL: http://www.bailii.org/eu/cases/ECHR/2003/143.html Cite as: [2003] ECHR 143