CONSTITUTIONAL COURT JUDGMENT n.213 of November 11, 2021 – excerpt
The state of emergency and the limitations of constitutionally protected rights may not be further extended in time beyond December 30, 2021.
(english version by auto-translation, sorry)
11.3 – In this exceptional situation of health emergency, the legislator’s discretion in designing measures to counteract the pandemic, balancing the protection of the interests and rights at stake, is wider than in ordinary conditions. In the light of this broader discretion, a measure such as the suspension of the execution of orders of release of property, even for non-residential use, appears at least not manifestly unreasonable. This Court has affirmed, with reference precisely to executive procedures (those referred to in art. 54-ter of d.l. no. 18 of 2020), that, in this situation of health emergency, “[t]he duty of social solidarity, in its horizontal dimension, can also lead, in particular circumstances, to the temporary sacrifice of some – the creditors proceeding in executivis – for the benefit of others more exposed, initially selected on the basis of a wide-mesh criterion”; and added that “the legislature wished to avoid that both the execution of the release of property and the executive procedures having as their object the principal residence could constitute a cause of aggravation of economic difficulties and a source of further concern for the debtors enforced” (judgment no. 128 of 2021).
11.4.- However, the sacrifice for landlords could only be temporary.
The emergency can justify, only in the presence of exceptional circumstances and for limited periods of time, the prevalence of the needs of the tenant to continue to dispose of the property, for residential purposes or for the exercise of a business, over those of the landlord. In the past, this Court, in assessing the constitutional legitimacy of provisions that had suspended the execution of evictions, even if only for certain categories of tenants, has pointed out that the legitimacy of such measures is linked to compliance with the dual condition of their exceptionality and temporariness (judgments no. 155 of 2004 and no. 310 of 2003).
15. – Finally, it is important to note that, if the exceptional nature of the epidemic caused by COVID-19 justifies, in the immediate future and for a limited period of time, the suspension of the execution of the measures for the release of property (also because, in particular, there has been, on the part of the legislator, a progressive adjustment of the balance of interests and rights at stake, on the other hand, however, this emergency measure is scheduled until December 31, 2021 and must be considered without possibility of further extension, having the compression of the right of property reached the maximum limit of tolerability, while considering its social function (art. 42, second paragraph, of the Italian Constitution).
The above judgment, while rejecting the exceptions of constitutional illegitimacy raised by the judge in question, the Court of Savona, with regard to Art. 103, paragraph 6, of Decree-Law no. 18 of 17/03/2020, converted, with amendments, into Law no. 27 of 24/04/2020; Art. 17 bis of Decree-Law no. 34 of 19/05/2020, converted, with amendments, into Law no. 77 of 17/07/2020 ; art. 13, paragraph 13, of Decree Law no. 183 of 31/12/2020, converted, with amendments, into Law no. 21 of 02/26/2021; and art. 40 quater of Decree Law no. 41 of 03/22/2021, converted, with amendments, into Law no. 69 of 05/21/2021, justifying the compression of the right to use the services provided by the company. 69, justifying the compression of the fundamental right of property by the presence of an exceptional situation of health emergency, which expanded “the discretion of the legislator in designing measures to counter the pandemic, balancing the protection of interests and rights at stake, is broader than under ordinary conditions”
And reiterating that that “duty of social solidarity, in its horizontal dimension, can also lead, in particular circumstances, to the temporary sacrifice of some – creditors proceeding in executivis – for the benefit of others more exposed, initially selected on the basis of a wide-mesh criterion”;
However, it has stressed that the limitation of the landlord’s right, whether commercial or private, is justifiable only if it is temporary.
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The Judges of the Constitutional Court have in fact referred to principles of law consolidated in many pronouncements of the Court itself, including n. 155 of 2004 and n. 310 of 2003.
The motivating part of the judgement contains the reaffirmation of the principle according to which the right to property, and likewise all constitutionally protected rights, cannot be frustrated indefinitely.
The Court affirms in fact that the state of emergency itself cannot be further extended beyond 30 December 2021.
The consequences of this statement unfold their effects on all constitutionally protected rights that have been limited to such an extent as to be almost cancelled, such as: the right to work art.4 Cost; the right to study art. 33 Cost; the right to self-determination art. 32 Cost; the right to free expression of thought art. 21 Cost; the right of free movement in the Italian territory art.16 Cost.
The heart of this sentence has a heart that beats for freedom.
Avv. Frida Chialastri
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