The second extension (from 1 January to 30 June 2021) of the suspension of all activities in executions involving the debtor’s main residence is illegitimate. This was established by the Council, deeming the balance between the judicial protection of the creditor and that of the debtor no longer proportionate, given that civil judgments (and therefore also those of execution), after the initial generalized suspension, are gradually resumed in a manner compatible with the pandemic. Instead, the suspension of these executions remained unchanged in the same conditions and extended from January 1 for another 6 months.
The rejection of the extension of the stop to foreclosures it is contained in sentence 128 filed today by the Constitutional Court (editor the judge Giovanni Amoroso). The issues of legitimacy were raised by the courts of Barcellona Pozzo di Gotto (Messina) and of Rovigo with respect to article 13, paragraph 14, of the decree-law of 31 December 2020, n. 183 (so-called “milleproroghe”).
In confirming that the right to housing has the nature of “social right”, the Council highlighted that the sacrifice required of creditors should have been dimensioned with respect to the real protection needs of the debtors, with the indication of adequate selection criteria. In the second extension of the suspension of the executive proceedings concerning the main residence, however, no selective criteria were identified aimed at justifying the further prolongation of the paralysis of the executive action. The Court also specified that the possibility of adopting the most appropriate measures to achieve a different balance, reasonable and proportionate, between the debtor’s right to housing remains with the legislator, where the evolution of the epidemiological emergency so requires. and the judicial protection of creditors in enforcement.
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