{"id":20740,"date":"2023-04-06T09:03:30","date_gmt":"2023-04-06T09:03:30","guid":{"rendered":"https:\/\/laweuro.com\/?p=20740"},"modified":"2023-04-06T09:03:30","modified_gmt":"2023-04-06T09:03:30","slug":"case-of-ferrara-and-others-v-italy-54592-07-and-3-others","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=20740","title":{"rendered":"CASE OF FERRARA AND OTHERS v. ITALY – 54592\/07 and 3 others"},"content":{"rendered":"

FIRST SECTION
\nCASE OF FERRARA AND OTHERS v. ITALY<\/strong>
\n(Applications nos. 54592\/07 and 3 others see appendix)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n6 April 2023<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Ferrara and Others v. Italy,<\/strong><\/p>\n

The European Court of Human Rights (First Section), sitting as a Committee composed of:
\nP\u00e9ter Paczolay, President,
\nGilberto Felici,
\nRaffaele Sabato, judges,
\nand Liv Tigerstedt, Deputy Section Registrar,<\/p>\n

Having regard to:<\/p>\n

the applications against the Italian Republic lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by the applicants listed in the appended table (\u201cthe applicants\u201d), on the various dates and with the various representatives indicated therein;<\/p>\n

the decision to give notice of the applications to the Italian Government
\n(\u201cthe Government\u201d), represented by their Agent, Mr L. D\u2019Ascia;<\/p>\n

the parties\u2019 observations;<\/p>\n

the decision to reject the Government\u2019s objection to the examination of the applications by a Committee.<\/p>\n

Having deliberated in private on 14 March 2023,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

SUBJECT MATTER OF THE CASE<\/strong><\/p>\n

1. The case concerns the applicants\u2019 complaints that they were deprived of their land through the application by the domestic courts of the constructive-expropriation rule (accessione invertita or occupazione acquisitiva).<\/p>\n

2. The applicants were the owners of plots of land in different municipalities (see the appended table for details).<\/p>\n

3. The national authorities issued orders authorising the urgent occupation of the applicants\u2019 various plots of land with a view to their subsequent expropriation. Shortly thereafter, they took physical possession of the land. By the time the authorisations expired the land had been irreversibly altered by construction works, but the authorities had not issued formal expropriation orders.<\/p>\n

4. The applicants brought actions for damages in the national courts, arguing that the occupation of the land had been unlawful and seeking compensation.<\/p>\n

5. The domestic courts upheld the applicants\u2019 complaints and found that the occupation of the applicants\u2019 land, which had initially been legally authorised, had subsequently become unlawful, but that the land had been irreversibly altered following the completion of the public works. As a consequence, pursuant to the constructive-expropriation rule, the applicants were no longer the owners of the land.<\/p>\n

6. The domestic courts further accepted that the applicants were entitled to damages for the loss of their property, and ordered independent expert valuations of the land. They did not award compensation reflecting the market value of the expropriated land, but instead proceeded to make awards based on the criteria contained in section 5\u00a0bis of Legislative Decree no.\u00a0333 of 11\u00a0July 1992, as amended by Law no.\u00a0662 of 1996.<\/p>\n

7. Additionally, in applications nos. 22915\/09, 43955\/09 and 43275\/12, the national courts awarded a sum as compensation for the unavailability of the land during the period of lawful occupation (indennit\u00e0 di occupazione).<\/p>\n

8. Further information on each application can be found in the appended table.<\/p>\n

9. The applicants complained that they had been unlawfully deprived of their land on account of the application by the domestic courts of the constructive-expropriation rule, in breach of their rights under Article\u00a01 of Protocol No.\u00a01 to the Convention.<\/p>\n

10. They also complained, under Article 6 \u00a7 1 of the Convention, of the retrospective application of section 5\u00a0bis\u00a0of Legislative Decree no.\u00a0333 of 11\u00a0July 1992, as amended by Law no.\u00a0662 of 1996. In their submission, this amounted to legislative interference with pending proceedings.<\/p>\n

THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n

I. JOINDER OF THE APPLICATIONS<\/strong><\/p>\n

11. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.<\/p>\n

II. PRELIMINARY ISSUE<\/strong><\/p>\n

12. The Court takes note of the information regarding the death of the applicant Nicol\u00f2 Bresciano (application no. 22915\/09) and the wish of his heir, Giovanna Bresciano, to continue the proceedings in his stead, as well as of the absence of any objection to that wish on the Government\u2019s part. Therefore, the Court considers that Giovanna Bresciano, who was already a party to the present proceedings before the Court, has standing to continue the proceedings also on behalf of the deceased.<\/p>\n

III. ALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1 to THE CONVENTION<\/strong><\/p>\n

13. The relevant domestic law and practice concerning constructive expropriation is to be found in Guiso-Gallisay v.\u00a0Italy ((just satisfaction) [GC], no.\u00a058858\/00, \u00a7\u00a7 18-48, 22 December 2009).<\/p>\n

A. Admissibility<\/strong><\/p>\n

14. The Government objected to the admissibility of the applications on the grounds of non-exhaustion of domestic remedies, either because the applicants had not made use of available avenues for obtaining redress or because national proceedings were still pending.<\/p>\n

15. In particular, with regard to application no. 54592\/07, the Government claimed that the applicant had failed to lodge an appeal against the first-instance judgment and had not contested the determination of damages made by the court-appointed expert. In this connection the Court notes that it has previously rejected similar submissions (see Ucci v. Italy, no.\u00a0213\/04, \u00a7\u00a7\u00a083-\u00a086, 22 June 2006) and there is no reason to do otherwise in the present case.<\/p>\n

16. With regard to application no. 22915\/09, the Government argued that the applicants should have requested the restitution of the land at the national level. The Court considers that, as stated by the applicants, at the time national proceedings were instituted in 1988 there was no possibility of requesting the restitution of the land (see Guiso-Gallisay, cited above, \u00a7\u00a7 23-34).<\/p>\n

17. Finally, with regard to applications nos. 22915\/09, 43955\/09 and 43275\/12, the Government claimed that national proceedings were still pending at the time the applications were lodged. As to application no.\u00a043955\/09, the Government have not submitted any evidence of pending proceedings. As to applications nos. 22915\/09 and 43275\/12, the proceedings that were still ongoing concerned the enforcement of domestic decisions and were thus unrelated to the violations complained of in the present applications.<\/p>\n

18. It follows that none of the remedies indicated by the Government can be considered effective for the purposes of the Convention.<\/p>\n

19. The Government further contended that the applicants were no longer victims of the alleged violation as they had obtained reparation at the national level. In this connection the Court observes that the domestic courts did not award sums corresponding to the full market value of the expropriated plots of land (see paragraph 6 above). It follows that the applicants have not lost their victim status (see, conversely, Armando Iannelli v. Italy, no.\u00a024818\/03, \u00a7\u00a7\u00a035-37, 12 February 2013).<\/p>\n

20. Additionally, with regard to application no. 43275\/12, the Government contended that the applicant had declared that he had received all payments due and had waived any further claims. The Court notes, as pointed out by the applicant, that the waiver referred to by the Government was made in the context of two sets of proceedings, one relating to the enforcement of a judgment issued by the Catania Court of Appeal on 26\u00a0November 2009 and the other concerning a separate expropriation order. As also noted by the applicant, those proceedings, as well as the waiver, exclusively concerned compensation for the expropriation of plots of land that are different from the one in question in the present proceedings. As a consequence, the Court does not see how such a declaration could be interpreted as a waiver of rights relating to the case at hand. The Court therefore dismisses the Government\u2019s objections in this connection also.<\/p>\n

21. As the complaints are not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention or inadmissible on any other grounds, they must be declared admissible.<\/p>\n

B. Merits<\/strong><\/p>\n

22. The Court notes that the applicants were deprived of their property by means of indirect or \u201cconstructive\u201d expropriation, an interference with the right to the peaceful enjoyment of possessions which the Court has previously considered, in a large number of cases, to be incompatible with the principle of lawfulness, leading to findings of a violation of Article 1 of Protocol No.\u00a01 (see, among many other authorities, Carbonara and Ventura v.\u00a0Italy, no.\u00a024638\/94, \u00a7\u00a7 63-73, ECHR 2000\u2011VI, and, as a more recent authority, Messana v. Italy, no.\u00a026128\/04, \u00a7\u00a7 38-43, 9 February 2017).<\/p>\n

23. In the present case, having examined all the material submitted to it and the Government\u2019s submissions, the Court has not found any fact or argument capable of persuading it to reach a different conclusion.<\/p>\n

24. It follows that there has been a violation of Article\u00a01 of Protocol No.\u00a01 to the Convention.<\/p>\n

IV. OTHER COMPLAINTS<\/strong><\/p>\n

25. As to the complaint raised under Article 6 \u00a7 1 of the Convention (see paragraph 10 above), having regard to the facts of the case, the submissions of the parties and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the remaining complaint (see Centre for Legal Resources on behalf of Valentin C\u00e2mpeanu v.\u00a0Romania [GC], no.\u00a047848\/08, \u00a7\u00a0156, ECHR 2014).<\/p>\n

APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n

26. The applicants claimed the amounts indicated in the appended table in respect of pecuniary and non-pecuniary damage and in respect of costs and expenses.<\/p>\n

27. The Government did not submit any observations regarding the applicants\u2019 just satisfaction claims.<\/p>\n

28. The Court has found a violation of Article 1 of Protocol No.\u00a01 on account of a breach of the principle of lawfulness (see paragraphs\u00a022 and 23\u00a0above). The relevant criteria for the calculation of pecuniary damage in constructive expropriation cases have been set forth in Guiso-Gallisay (cited above, \u00a7\u00a7\u00a0105-07). In particular, the Court relied on the market value of the property at the time of the expropriation as stated in the court-ordered expert reports drawn up during the domestic proceedings.<\/p>\n

29. With regard to applications nos. 22915\/09 and 43955\/09, the Court notes that two different expert reports were ordered during the course of the domestic proceedings. Nevertheless, as the applicants relied on the expert report drawn up in the course of the appeal proceedings and the Government did not object, the Court will base its assessment on the latter.<\/p>\n

30. Additionally, with regard to application no. 22915\/09, the Court notes that the applicants had obtained payment of the full market value of the land on the basis of the first-instance judgment, which was subsequently quashed by the Court of Appeal. As a consequence, by a judgment of 23\u00a0June 2014, the Savona District Court ordered the applicants to return the sum received in excess (see the appended table). No information about the enforcement of that judgment has been provided by the parties. As the Court will base its pecuniary damage calculation on the amounts awarded to the applicants by the Court of Appeal, it points out that the present judgment does not affect the possibility for the Government to obtain the enforcement of the judgment of the Savona District Court of 23 June 2014.<\/p>\n

31. Having regard to the applicants\u2019 claims, and taking into account the principle non ultra petita, the Court awards the sums indicated in the appended table and dismisses the remainder of the claims.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Decides to join the applications;<\/p>\n

2. Declares that Giovanna Bresciano has standing to continue the present proceedings also in Nicol\u00f2 Bresciano\u2019s stead;<\/p>\n

3. Declares the complaint under Article 1 of Protocol No. 1 to the Convention admissible;<\/p>\n

4. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;<\/p>\n

5. Holds that there is no need to examine the admissibility and merits of the complaint under Article\u00a06 of the Convention;<\/p>\n

6. Holds<\/p>\n

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table in respect of pecuniary and non-pecuniary damage and in respect of costs and expenses;<\/p>\n

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n

7. Dismisses the remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n

Done in English, and notified in writing on 6 April 2023, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Liv Tigerstedt \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0P\u00e9ter Paczolay
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n

__________<\/p>\n

APPENDIX<\/strong><\/p>\n\n\n\n\n\n\n\n
No.<\/strong><\/td>\nApplication no.
\nCase name
\nLodged on<\/strong>\u00a0<\/strong><\/td>\n		Applicant\u2019s name
\nYear of birth
\nPlace of residence
\nNationality<\/strong><\/td>\n		Representative\u2019s name
\nLocation<\/strong><\/td>\n		Factual information<\/strong><\/td>\nAmounts awarded by national courts in Italian lira (ITL)<\/strong><\/td>\nMarket value of the land in Italian lira (ITL)<\/strong><\/td>\nObservations of the parties<\/strong><\/td>\nAward under Article\u00a041 of the Convention per application<\/strong><\/td>\n<\/tr>\n
1.<\/td>\n54592\/07
\nFerrara v.\u00a0Italy
\n01\/12\/2007 <\/td>\n		Luciano FERRARA<\/strong>
\n1922
\nLusciano
\nItalian<\/td>\n		Silvano TOZZI
\nNaples<\/td>\n		Land<\/u>: Trentola Ducenta municipality, recorded in the land register as folio no. 5, parcel no.\u00a091<\/p>\n

Urgent occupation order:<\/u> 21\/11\/1987<\/p>\n

Physical occupation<\/u>: 27\/06\/1988<\/p>\n

National decisions<\/u>: Santa Maria Capua Vetere District Court, 02\/04\/2006, declaring the occupation unlawful ab initio <\/em>and awarding damages based on Law no. 662\/1996<\/td>\n

ITL 106,943,980 plus inflation adjustment and statutory interest from 21\/11\/1987<\/td>\nITL 194,320,000 (in 1988, according to expert valuation)<\/td>\nGovernment<\/u>:
\n(1) non-exhaustion: the applicant did not contest the determination of damages in the first-instance proceedings or lodge an appeal against the first-instance judgment;
\n(2) loss of victim status: the applicant received a fair amount;
\n(3) merits: interference proportionate to the public interest pursued <\/p>\n

Applicant:<\/u>
\n(1) national remedies were ineffective;
\n(2) compensation did not reflect the property\u2019s market value;<\/p>\n

(3) just satisfaction claims:<\/p>\n

(a) loss of property:<\/p>\n

EUR 158,212.54<\/p>\n

(b) non-pecuniary damage:<\/p>\n

EUR 15,800<\/p>\n

(c) costs and expenses:<\/p>\n

EUR 17,100 plus taxes<\/td>\n

Pecuniary damage (loss of property): EUR<\/strong> 158,212.54<\/strong>, plus any tax that may be chargeable<\/p>\n

Non-pecuniary damage:<\/p>\n

EUR 5,000<\/strong>, plus any tax that may be chargeable<\/p>\n

Costs and expenses: EUR 5,000<\/strong>, plus any tax that may be chargeable to the applicant<\/p>\n

 <\/td>\n<\/tr>\n

2.<\/td>\n22915\/09
\nBresciano and Others v. Italy
\n28\/04\/2009<\/td>\n		Nicol\u00f2 BRESCIANO<\/strong>
\n1938
\nDeceased in 2010
\nImperia
\nItalian\u00a0<\/u><\/p>\n

Heir<\/u>:<\/p>\n

Giovanna BRESCIANO
\n1943<\/p>\n

Giovanna BRESCIANO<\/strong>
\n1943
\nGenova
\nItalian<\/p>\n

Anna Maria DE LUCIA<\/strong>
\n1936
\nAlassio
\nItalian<\/td>\n

Maurizio DE STEFANO
\nRome<\/td>\n		Land<\/u>: 50% ownership of land located in the Albenga municipality, recorded in the land register as no. 7441, folio no. 13, parcels nos. 316, 320 and 764<\/p>\n

Urgent occupation order<\/u>: 10\/02\/1979<\/p>\n

Physical occupation<\/u>: 12\/03\/1979<\/p>\n

National decisions<\/u>: Savona District Court, 27\/02\/1997, declaring the occupation unlawful since 12\/03\/1984 and awarding damages and occupation compensation based on the market value of the assets;
\nGenoa Court of Appeal, 01\/10\/2003, awarding damages based on Law no. 662\/1996;
\nCourt of Cassation, 20\/02\/2009, rejecting all appeals;<\/p>\n

Savona District Court, 23\/06\/2014, ordering the applicants to return the amounts in excess of damages based on Law no. 662\/1996 that they had received on the basis of the first-instance judgment.<\/td>\n

50% of ITL 533,396,050 as damages relating to land and ITL 67,500,000 as occupation compensation, plus inflation adjustment and statutory interest from 12\/03\/1984 (Court of Appeal judgment of 01\/10\/2003, see previous column)<\/td>\n50% of ITL 675,000,000 (in 1984, according to first-instance expert valuation)<\/p>\n

50% of ITL 966,150,000 (in 1984, according to appeal expert valuation, excluding value of the buildings)<\/td>\n

Government<\/u>:
\n(1) non-exhaustion: the applicants did not request the restitution of the land and proceedings for the enforcement of the appeal judgment were still pending;(2) loss of victim status: the applicants received a fair amount;<\/p>\n

(3) merits: interference proportionate to the public interest pursued<\/p>\n

\u00a0<\/u><\/p>\n

Applicants:<\/u>
\n(1) national remedies were ineffective;<\/p>\n

(2) compensation did not reflect the market value;<\/p>\n

(3) just satisfaction claims:<\/p>\n

(a) loss of property:<\/p>\n

EUR 109,373<\/p>\n

(b) loss of opportunity:<\/p>\n

EUR 295,080.33<\/p>\n

(c) non-pecuniary damage:<\/p>\n

EUR 40,000<\/p>\n

(d) costs and expenses before national courts: EUR 75,807.87<\/p>\n

(e) costs and expenses before the Court: EUR 38,137.02<\/td>\n

Pecuniary damage:<\/p>\n

– loss of property: EUR<\/strong> 109,373<\/strong> plus any tax that may be chargeable<\/p>\n

– loss of opportunity: EUR<\/strong> 14,700<\/strong>, plus any tax that may be chargeable<\/p>\n

Non-pecuniary damage: EUR<\/strong> 5,000<\/strong>, plus any tax that may be chargeable<\/p>\n

Costs and expenses: EUR<\/strong> 7,000<\/strong>, plus any tax that may be chargeable to the applicants<\/td>\n<\/tr>\n

3.<\/td>\n43955\/09
\nGrana v.\u00a0Italy
\n31\/07\/2009 <\/td>\n		Maria Rosa GRANA<\/strong>
\n1933
\nAlbenga
\nItalianMaria Giovanna GRANA<\/strong>
\n1941
\nAlbenga
\nItalian<\/td>\n		Maria Margherita VIALE
\nNice<\/td>\n		Land<\/u>: 50% ownership of land located in the Albenga municipality, recorded in the land register as no. 7441, folio no. 13, parcels nos. 316, 320 and 764<\/p>\n

Urgent occupation order<\/u>: 10\/02\/1979<\/p>\n

Physical occupation<\/u>: 12\/03\/1979<\/p>\n

National decisions<\/u>: Savona District Court, 27\/02\/1997, declaring the occupation unlawful since 12\/03\/1984 and awarding damages and occupation compensation based on the market value of the assets;
\nGenoa Court of Appeal, 01\/10\/2003, awarding damages based on Law no. 662\/1996;
\nCourt of Cassation, 20\/02\/2009, rejecting all appeals.<\/td>\n

50% of ITL 533,396,050 as damages relating to land and ITL 67,500,000 as occupation compensation, plus inflation adjustment and statutory interest from 12\/03\/1984<\/p>\n

 <\/p>\n

 <\/td>\n

50% of ITL 675,000,000 (in 1984, according to first-instance expert valuation)<\/p>\n

50% of ITL 966,150,000 (in 1984, according to appeal expert valuation, excluding value of the buildings)<\/td>\n

Government<\/u>:
\n(1) non-exhaustion: proceedings for the enforcement of the appeal judgment were still pending;(2) loss of victim status: the applicants received a fair amount;<\/p>\n

(3) merits: interference proportionate to the public interest pursued<\/p>\n

 <\/p>\n

Applicants:<\/u>
\n(1) no proceedings pending at the time the application was lodged;<\/p>\n

(2) compensation did not reflect the market value;<\/p>\n

(3) just satisfaction claims:<\/p>\n

(a) loss of property: EUR 609,904.61<\/p>\n

(b) non-pecuniary damage:<\/p>\n

EUR 60,000<\/p>\n

(c) costs and expenses before the Court: EUR 32,500<\/td>\n

Pecuniary damage:<\/p>\n

-loss of property: EUR<\/strong> 609,904.61<\/strong>, plus any tax that may be chargeable<\/p>\n

Non-pecuniary damage: EUR 5,000<\/strong>, plus any tax that may be chargeable<\/p>\n

Costs and expenses: EUR 5,000<\/strong>, plus any tax that may be chargeable to the applicants<\/td>\n<\/tr>\n

4.<\/td>\n43275\/12
\nContarino v.\u00a0Italy
\n04\/07\/2012 <\/td>\n		Corsaro Francesco CONTARINO<\/strong>
\n1925
\nAcireale
\nItalian<\/td>\n		Santi PAPPALARDO
\nCatania<\/td>\n		Land<\/u>: municipality of Acireale, recorded in land register as folio no. 49, parcel no. 408<\/p>\n

Urgent occupation order<\/u>: 20\/05\/1985<\/p>\n

Physical occupation<\/u>: 01\/08\/1985<\/p>\n

National decisions<\/u>: Catania District Court, 12\/01\/2000, declaring the occupation unlawful since 20\/05\/1994 and awarding damages based on Law no. 662\/1996;
\nCatania Court of Appeal, 26\/11\/2009, upholding previous decision;
\nCourt of Cassation, 15\/02\/2012, upholding previous decision<\/td>\n

ITL 1,282,255,000 plus inflation adjustment and statutory interest since 20\/05\/1994 as damages and ITL 657,466,800 as occupation compensation<\/td>\nITL 2,330,880,000 (in May 1994, according to expert valuation)<\/td>\nGovernment<\/u>:
\n(1) non-exhaustion: proceedings for the enforcement of the appeal judgment were still pending;(2) loss of victim status: the applicant waived his right to further claims;<\/p>\n

(3) merits: interference proportionate to the public interest pursued<\/p>\n

 <\/p>\n

Applicant:<\/u>
\n(1) pending proceedings did not concern the alleged violation;<\/p>\n

(2) the waiver concerned different expropriation proceedings;<\/p>\n

(3) the compensation for loss of property was insufficient;<\/p>\n

(4) just satisfaction claims:<\/p>\n

(a) loss of property and loss of opportunity: EUR 2,056,895<\/p>\n

(b) costs and expenses before the Court: EUR 30,000<\/td>\n

Pecuniary damage:<\/p>\n

– loss of property: EUR 1,472,900<\/strong>, plus any tax that may be chargeable<\/p>\n

– <\/strong>loss of opportunity: EUR 292,400<\/strong>, plus any tax that may be chargeable<\/p>\n

Costs and expenses: EUR 5,000<\/strong>, plus any tax that may be chargeable to the applicant<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n