CEDH · CASELAW;REPORTS;ENG — 10 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial } .s23A41E03 { width:36pt; display:inline-block } .s8828C2CA { width:31.28pt; display:inline-block } .s41A29154 { width:6.84pt; display:inline-block } .s9A9585A5 { width:23.34pt; display:inline-block } .s28DAEA75 { width:27.97pt; display:inline-block } .s3BF17DD1 { width:28.07pt; display:inline-block } .s932E7F2A { width:27.5pt; display:inline-block } .s9B2C2C0D { width:18.61pt; display:inline-block } .s79535B21 { width:28.92pt; display:inline-block } .s49A78FE0 { width:26.55pt; display:inline-block } .s7742A756 { width:35.15pt; display:inline-block } .s1DA17C1C { width:26.65pt; display:inline-block } .sADED1319 { width:7.61pt; display:inline-block } .s490C142E { width:28.91pt; display:inline-block } .sECC8F45 { width:24.18pt; display:inline-block } .s44B3A84A { width:19.48pt; display:inline-block } .s2201579D { width:26.09pt; display:inline-block } .sC54A673A { width:28.45pt; display:inline-block } .s50014358 { width:26.56pt; display:inline-block } .s6F71A326 { width:28.44pt; display:inline-block } .s80F1F894 { width:21.82pt; display:inline-block } .s6B20963A { width:34.33pt; display:inline-block } .s9683AE69 { width:28.54pt; display:inline-block } .s5B2D21E2 { width:23.44pt; display:inline-block }        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. BÎRSAN       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