The authorities’ complete and prolonged failure to act following the occupation of a building by housing activists, without any legal title, breached the Convention

JUDGMENT

Casa di Cura Valle Fiorita S.r.l. v. Italy 13.12.2018 (no. 67944/13)

see here  

SUMMARY 

The case concerned the applicant company being unable to recover possession of a building in Rome
that had been occupied since 2012, without any legal title, by a group of housing activists
(movimento lotta per la casa).

A final and enforceable judicial decision was given on 9 August 2013 ordering the eviction of the
occupants. It remains unenforced to this day owing to social considerations (a failure to find
alternative accommodation for the occupants because of a lack of resources) and fears of
public-order disturbances.

The Court acknowledged that social considerations and fears of public-order disturbances could
justify difficulties with enforcement and a delay in evacuating the premises. Nevertheless, it saw no
justification for the Italian authorities’ complete and prolonged failure to take action, reiterating that
a lack of resources could not in itself constitute an acceptable reason for failing to enforce a judicial
decision. It therefore found that the national authorities, in failing to take any steps to comply with
the decision of 9 August 2013, had deprived the provisions of Article 6 § 1 of the Convention of all
useful effect and had breached the principle of a law-based State, founded on the rule of law and
the principle of legal certainty.

The Court also found that the authorities, given the individual interests of the applicant company
and after a reasonable period of time had been spent in attempting to find a satisfactory solution,
should have taken the necessary measures to comply with the judge’s decision of 9 August 2013.

PROVISIONS 

Article 6 par. 1

Article 1 of the First Additional Protocol

PRINCIPAL FACTS 

The applicant, Casa di Cura Valle Fiorita S.r.l., is an Italian limited liability company with its registered
office in Rome.

On 6 December 2012 a group of around 100 persons forced their way into a building of about 8,000
sq. m in Rome owned by the applicant company, and occupied the premises. The applicant company
lodged a criminal complaint with the public prosecutor, alleging a breach of its property rights and
requesting the evacuation of the premises. It reiterated its complaint on 11 occasions between 2012
and 2013.

On 9 August 2013 the Rome investigating judge ordered the seizure and evacuation of the building,
noting that it was occupied by around 150 people who had started to make alterations to the premises, in particular by putting up fencing to restrict access. In March 2015 the applicant company applied unsuccessfully to the administrative authorities for enforcement of the decision of 9 August 2013. It then applied to the Administrative Court, complaining about the authorities’ lack of response. During the proceedings the Prefect of Rome replied that it was necessary to obtain prior guarantees from the municipality of Rome that the persons concerned would be rehoused; in the absence of such guarantees he could not order their eviction. On 30 March 2016 the Prefect
requested the municipality to find alternative housing for the occupants so that the building could
be evacuated.

In the meantime, the Rome District Court served an order on the applicant company for the
payment of approximately 30,000 euros in electricity bills for 2013 and 2014. The applicant company
also continues to be liable for property tax. In addition, its request for access to the data of the
persons involved in occupying the building, with a view to bringing a court action against them, was
refused by the public prosecutor’s office.

THE DECISION OF THE COURT 

Article 6 § 1 (right of access to a court)

The Court noted that the decision of the Rome investigating judge of 9 August 2013, which had been
final and enforceable, concerned a civil right on the part of the applicant company (namely the
protection of its property rights) and that it had been urgent, since it was designed to prevent the
continuation of an offence (punishable under Article 633 of the Criminal Code) in order to preserve
the integrity of the property. However, that decision had remained unenforced to date, in spite of
the numerous steps taken on a regular basis by the applicant company.

The reasons advanced by the authorities to justify this non-enforcement related primarily to the lack
of alternative accommodation for the occupants, stemming in particular from the municipality’s
financial difficulties, and to the risk of public-order disturbances. However, the Government did not
provide any details of the action allegedly taken to find alternative accommodation since the
occupation had begun or, at least, since the official memorandum sent by the Prefect to the Rome
municipality on 30 March 2016.

The Court acknowledged that social considerations and fears of public-order disturbances could
justify difficulties with enforcement and a delay in evacuating the premises. Nevertheless, it saw no
justification for the Italian authorities’ complete and prolonged failure to take action. It reiterated
that a lack of resources could not in itself amount to an acceptable reason for failing to enforce a
judicial decision. Consequently, it found that the national authorities, in failing for over five years to
take any steps to comply with a final and enforceable judicial decision, had deprived the provisions
of Article 6 § 1 of the Convention of all useful effect and had breached the principle of a law-based
State, founded on the rule of law and the principle of legal certainty. There had therefore been a
violation of Article 6 § 1.

Article 1 of Protocol No. 1 (protection of property)

The authorities had failed for over five years to act on the decision of the investigating judge
ordering the evacuation of the building. While social considerations and the requirements of public
order might have justified a delay in enforcement, the Court regarded as unacceptable the period of
non-enforcement, which persisted to this day, coupled with the complete lack of information
concerning the steps taken or under consideration by the authorities to put an end to the situation.
The Court was also mindful of the fact that the applicant company was still liable for the energy
costs incurred by the building’s occupants. In view of the individual interests of the applicant
company, the Court considered that the authorities, after a reasonable period of time had been
spent in attempting to find a satisfactory solution, should have taken the necessary measures to
comply with the judicial decision. There had therefore been a violation of Article 1 of Protocol No. 1
to the Convention.

Article 41 (just satisfaction)

The Court held that Italy was to pay the applicant company 20,000 euros (EUR) in respect of
non-pecuniary damage(echrcaselaw.com editing). 


ECHRCaseLaw

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