Responsabilità della Pubblica Amministrazione per mancato sgombero di immobili abusivamente occupati (commento a cass. Civ., Sez. Iii, 13 luglio 2018 – 4 ottobre 2018, n. 24198)

di Filomena Sara De Rosa

In the analysed statement, the Italian Supreme Civil Court had to decide over a case in which the applicant company has been unable to recover possession of a building that it owns and that has been unlawfully occupied since 2012 by homeless people, despite an order made by the investigating judge in August 2013 for the provisional seizure of the property. The main reason cited for the failure to enforce the seizure order was the concern that the evacuation could have caused turmoil.

The investigating judge’s decision ordering the provisional seizure of the property concerned a civil right on the part of the applicant company, namely the protection of its property rights. By its very nature, that decision had been urgent since it was designed to prevent the continuation of an offence in order to preserve the integrity of the injured party’s property. It had also been final and enforceable. However, the seizure order remained unenforced to date and the authorities had made no attempt to enforce it since its issuance by the judge.

The Government justified the delay in enforcement by citing reasons of public order and social considerations. 

Nevertheless, The Court evaluated that there was no justification in the present case for the authorities’ complete and prolonged failure to take action, since the concern of causing turmoil could not in itself amount to an acceptable reason for failing to enforce a judicial decision, representing an unlawful occupation  itself an offence to public order.

In failing for over five years to take any of the measures needed to comply with a final and enforceable judicial decision, the national authorities had also deprived the provisions of ECHR’s Article 6 § 1 of all useful effect in the present case and had breached the principle of a law-based State, founded on the rule of law and the principle of legal certainty.