Resolution of the ECHR of December 13, 2018 in the case of the Casa di Cura Valle Fiorita Sr.L. case (Casa di Cura Valle Fiorita S.r.l.) v. Italy (application No. 67944/13).
In 2013, the complainant was assisted in preparing an application. Subsequently, the application was communicated to Italy.
The case was successfully considered the application of the applicant about the impossibility of taking possession of his property in connection with the non-execution of the judicial act about the withdrawal of this property, motivated by the impossibility of evicting the persons holding the disputed property due to the lack of budget funds to provide these persons with other housing. The case has violated the requirements of Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicant company, the owner of the building, could not take possession of its property, about 150 people who had been illegally occupied since 2012, despite an order issued by the preliminary investigation judge in August 2013 for the urgent seizure of property. Failure to comply with the decision on the seizure of property was justified, in particular, by the impossibility of evicting the persons occupying the building, since the municipality did not have the financial means to provide them with other housing. In a memo from March 2016, the prefect invited the municipality to look for an opportunity to resettle the people who occupied the building in order to ensure its release.
QUESTIONS OF RIGHT
Regarding compliance with paragraph 1 of Article 6 of the Convention. The preliminary investigation judge issued in August 2013 for the urgent withdrawal of the building affected the civil law of the applicant company, namely the protection of its property rights. In addition, the decree, by its very nature, was urgent because it was intended to prevent the continuation of the offense in order to ensure the inviolability of the property of the injured party. Moreover, this ruling was final and enforceable. However, the order to seize the building remains unfulfilled, and the authorities have not made any attempts to execute it since the judge issued this decision.
The Italian authorities justify the delay in the execution of the decision by reasons related to public order and social considerations, mainly the lack of opportunities for resettlement of the people who occupied the building, in particular, because of the financial difficulties of the municipality. At the same time, the European Court is ready to admit that the authorities of the respondent state could also be guided by the desire to avoid a serious risk of public unrest in connection with the eviction of several dozen people, especially since the building was captured as part of an action widely reported in the press.
However, the Italian authorities did not provide any information about the measures taken by the administration to resolve the issue of resettlement since the seizure of the building or at least since the receipt of the prefect's office memo in March 2016. Accordingly, the complete and prolonged inaction of the authorities in the present case is unfounded. In addition, the lack of resources, as well as the lack of other housing, cannot by themselves serve as an acceptable excuse for non-enforcement of a court decision.
By refraining from taking any measures necessary for the execution of the final and enforceable court decision for more than five years, the Italian authorities in the present case deprived the provisions of Article 6 § 1 of the Convention of any beneficial effect and caused harm to the rule of law based on the rule of law and legal certainty.
The case was a violation of the requirements of paragraph 1 of Article 6 of the Convention (adopted unanimously).
Regarding compliance with Article 1 of Protocol No. 1 to the Convention. Similar to that established by the European Court of Justice in the Matthews v. France case (Matheus v. France) (March 31, 2005, complaint No. 62740/00), and in contrast to the position set forth in the Resolution of the Grand Chamber of The trial of Immobilier Saffi v. Italy (Immobiliare Saffi v. Italy) (dated July 28, 1999, complaint No. 22774/93), the refusal of the Italian authorities to release the applicant’s building is not considered as a control measure for using property within the meaning of Article 1 of Protocol No. 1 to the Convention. In the present case, despite the fact that the issue of relocation of persons occupying the building was taken into account, the refusal to evict these persons did not follow directly from the application of the law relating to socio-economic policy in this area, but was the result of the refusal of the competent authorities under specific circumstances and for several years to carry out the release of the property of the applicant company. In this regard, the failure to comply with the preliminary investigation judge’s decision in August 2013 should be considered in the light of the general rule contained in the first sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention, enshrining the right to respect for property.
For more than five years, the authorities remained inactive, despite the ruling that the preliminary investigating judge ordered the applicant’s building to be vacated. Social reasons and the need to ensure public order, which the Court does not underestimate, could in the present case justify the delay in the execution of the judgment. However, the duration of the non-execution of the decision to this day in the present case is unacceptable along with the complete lack of information regarding the measures taken or planned by the authorities in order to resolve the situation. In addition, in the meantime, the applicant company must pay for the electricity consumption of the occupants of the building. Taking into account the interests of the applicant company, the authorities had to, after a reasonable period spent on finding a satisfactory solution, take the necessary measures to execute the court order.
The case was a violation of Article 1 of Protocol No. 1 to the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded the applicant company EUR 20,000 in respect of non-pecuniary damage, the claim for pecuniary damage was rejected.