GRAND CHAMBER
CASE OF GUISO-GALLISAY v. ITALY
(Application no. 58858/00)
JUDGMENT
(Just satisfaction)
STRASBOURG
22 December 2009
This judgment is final but may be subject to editorial revision.
In the case of Guiso-Gallisay v. Italy,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Jean-Paul Costa, President,
Josep Casadevall,
Corneliu Bîrsan,
Karel Jungwiert,
Vladimiro Zagrebelsky,
Elisabeth Steiner,
Lech Garlicki,
Elisabet Fura,
Khanlar Hajiyev,
Dean Spielmann,
Dragoljub Popović,
Isabelle Berro-Lefèvre,
Päivi Hirvelä,
George Nicolaou,
Luis López Guerra,
Mirjana Lazarova Trajkovska,
Nona Tsotsoria, judges,
and Vincent Berger, Jurisconsult,
Having deliberated in private on 17 June 2009 and 2 December 2009,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 58858/00) against the Italian Republic lodged with the Court under Article 34 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Italian nationals, Mr Stefano Guiso-Gallisay, Mr Gian Francesco Guiso-Gallisay and Ms Antonella Guiso-Gallisay (“the applicants”), on 7 April 2000.
2. By a judgment of 8 December 2005 (“the principal judgment”) the Court held that the interference in the applicants' right to the peaceful enjoyment of their possessions had not been compatible with the principle of lawfulness and that, consequently, there had been a violation of Article 1 of Protocol No. 1 (Guiso-Gallisay v. Italy, no. 58858/00, §§ 96-97 of the judgment and point 2 of the operative provisions, 8 December 2005).
3. Relying on Article 41 of the Convention, the applicants claimed a sum corresponding to the value of the land in issue, less the compensation received at national level, plus the value of the buildings erected on their land. They also claimed an amount in reimbursement of the tax, deducted at source, payable on the sums awarded by the Nuoro District Court on 14 July 1997. They also requested compensation for non-pecuniary damage. Finally, they requested reimbursement of the costs incurred before the national courts and before the European Court.
4. As the question of the application of Article 41 of the Convention was not ready for decision, the Chamber reserved it and invited the Government and the applicants to submit, within three months of the judgment becoming final, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (ibid., § 108 and point 3 of the operative provisions).
5. The time-limit fixed to enable the parties to reach agreement passed without the conclusion of such an agreement. The applicants filed observations, which were transmitted to the Government.
6. On 9 October 2006 the President of the Chamber to which the subsequent proceedings had been assigned (point 3 (c) of the operative provisions of the principal judgment) decided to ask each party to appoint an expert to assess the pecuniary damage and to submit an expert report by 4 January 2007.
7. Those reports were submitted within the prescribed time-limit.
8. On 22 January 2008 the Chamber gave notice to the parties of its intention to relinquish jurisdiction in favour of the Grand Chamber (Rule 72 § 2 of the Rules of Court and Article 30 of the Convention).
9. On 28 February 2008 the applicants objected to relinquishment. The Government did not raise any objection.
10. On 27 May 2008, considering that the applicants' objection met the conditions set out in Rule 72 § 2 of the Rules of Court, the Chamber decided not to relinquish jurisdiction.
11. On 21 October 2008 the Chamber adopted a judgment on just satisfaction.
12. On 30 October 2008 the applicants requested that the case be referred to the Grand Chamber under Article 43 of the Convention and Rule 73. A panel of the Grand Chamber accepted this request on 26 January 2009.
13. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.
14. The applicants and the Government each filed a memorial on the application of Article 41. Third-party comments were also received from the Unione forense per la tutela dei diritti dell'Uomo, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2).
15. A hearing took place in public in the Human Rights Building, Strasbourg, on 17 June 2009 (Rule 59 § 3).
There appeared:
–for the respondent Government
MrNicola Lettieri, co-Agent,
MrGiuseppe Albenzio, Avvocato dello Stato;
– for the applicants
MrNicolò Paoletti, Counsel,
MsAlessandra Mari, Adviser,
MsGinevra Paoletti, Assistant.
The Court heard addresses by Mr Lettieri, Mr Albenzio, Mr Paoletti and Ms A. Mari and their replies to judges' questions.
I. RELEVANT DOMESTIC LAW AND PRACTICE
A. Expedited possession of land
16. Under Italian law, the expedited expropriation procedure enables the authorities to occupy a plot of land and to build on it prior to the official expropriation. Once a project has been declared to be in the public interest and the plans adopted, the authorities may issue an expedited possession order, for a limited period not exceeding five years, in respect of the land to be expropriated (section 20 of Law no. 865 of 1971). The order will lapse if physical possession of the land does not occur within three months of its adoption. A formal expropriation order must be made before the end of the authorised period of occupation.
17. The authorised occupation of land creates an entitlement to compensation for occupation. In judgment no. 470 of 1990 the Constitutional Court recognised an immediate right of access to a court for the purpose of claiming compensation for occupation as soon as physical possession of the land occurs, without having to wait for a compensation offer from the authorities.
B. The constructive-expropriation rule (“occupazione acquisitiva” or “accessione invertita”)
18. During the 1970s a number of local authorities took possession of land using the expedited procedure but failed subsequently to issue an expropriation order. The Italian courts were required to deal with cases in which the landowner had lost de facto use of the land, as it had been possessed and a public works project had been undertaken. The question arose whether the mere fact that the work had been carried out meant that the owner had also lost title to the land.
1. The case-law prior to the Court of Cassation's judgment no. 1464 of 16 February 1983
19. There was substantial divergence in the Court of Cassation's decisions concerning the consequences of carrying out building works in the public interest on unlawfully occupied land. Unlawful possession is to be understood as referring to possession that is unlawful from the start, or that was initially authorised but subsequently became unlawful, either because the authority is quashed or because possession continues beyond the authorised period without an expropriation order being made.
20. Under one line of case-law, the owner of land that had been occupied by the authorities did not lose ownership after the completion of public works. However, he could not request reinstatement of the land; his only remedy was to bring an action in damages for wrongful possession. No limitation period applied to such actions, since the unlawful nature of the possession was continuing. The authorities could at any time issue a formal expropriation order. If they did so, the action in damages was transformed into a dispute over the compensation for expropriation, with damages for the loss of enjoyment of the land being due only for the period prior to the making of the expropriation order (see, among other authorities, Court of Cassation judgments nos. 2341 of 1982; 4741 of 1981; and 6452 and 6308 of 1980).
21. Under a second line, the landowner did not lose title to the land and could request its reinstatement if the authorities had acted other than in the public interest (see, for example, Court of Cassation judgments nos. 1578 of 1976 and 5679 of 1980).
22. Under a third line, an owner dispossessed by the authorities automatically lost title to the land as soon as it had been altered irreversibly, that is to say on completion of the public works. He was entitled to claim damages (see Court of Cassation judgment no. 3243 of 1979).
2. Court of Cassation judgment no. 1464 of 16 February 1983
23. In a judgment of 16 February 1983 the Court of Cassation, sitting as a full court, resolved the conflict between the lines of case-law and adopted the third solution. In so doing, it established the constructive-expropriation rule (accessione invertita or occupazione acquisitiva). Under the rule, the public authorities acquire title to the land from the outset, without the need for formal expropriation, if, after the land is occupied and irrespective of whether such possession is lawful, public works are completed there. If the land is initially possessed without authorisation, the transfer of property occurs when the public works project is completed. If the taking of possession was authorised from the outset, property is transferred on the expiry of the authorised period of possession. In the same judgment, the Court of Cassation stated that, in all cases of constructive expropriation, the owner is entitled to compensation in full since acquisition of the land has taken place without title. However, such compensation is not paid automatically: the owner must lodge a claim for damages. In addition, the right to compensation is subject to the five-year limitation period applicable to actions in tort; the starting-point is the date the land is irreversibly altered.
3. Case-law after the Court of Cassation's judgment no. 1464 of 16 February 1983
(a) Limitation period
24. Initially, it was held that no limitation period applied, since possession of the land without title was a continuing unlawful act (see paragraph 23 above). In its judgment no. 1464 of 1983, the Court of Cassation stated that the right to compensation was subject to a five-year limitation period (see paragraph 26 above). Subsequently the First Division of the Court of Cassation held that a ten-year limitation period should apply (judgments nos. 7952 of 1991 and 10979 of 1992). On 22 November 1992 the full court of the Court of Cassation reached a final decision on the issue, holding that the limitation period is five years and begins to run from the date on which the land is irreversibly altered.
(b) Constitutional Court judgment no. 188 of 1995
25. In this judgment, the Constitutional Court held that the constructive expropriation rule was compatible with the Constitution in so far as the rule was rooted in a legislative provision, namely section 2043 of the Civil Code governing claims in tort. Under this judgment, the fact that the public authorities became owners of the land by taking advantage of their own unlawful conduct did not pose any difficulty under the Constitution, since the public interest, namely the conservation of public works, outweighed the individual's interest and thus the latter's interest in the right of property. The Constitutional Court held that the application of the five-year limitation period for compensation claims was compatible with the Constitution.
(c) Cases where the constructive-expropriation rule does not apply
26. Developments in the case-law show that the mechanism whereby building public infrastructure results in transfer of property in the land to the authorities is subject to exceptions.
27. In its judgment no. 874 of 1996, the Consiglio di Stato stated that there was no constructive expropriation where decisions by the authorities and an expedited possession order had been quashed by the administrative courts.
28. In judgment no. 1907 of 1997, the Court of Cassation, sitting as a full court, held that the authorities did not acquire ownership of the land if their decisions and the public-interest declaration were deemed to have been null and void from the outset. In such cases, the owner retained title to the land and could claim restitutio in integrum or could seek damages. The unlawful nature of the possession in such cases was continuing and no limitation period applied.
29. In judgment no. 6515 of 1997, the Court of Cassation, sitting as a full court, held that there was no transfer of property where the public-interest declaration had been annulled by the administrative courts. In such cases, therefore, the constructive-expropriation rule did not apply. The private person, who retained ownership of the land, was entitled to claim restitutio in integrum. An action in damages entailed a waiver of the right to restitution. The five-year limitation period started to run from the date on which the decision of the administrative court became final.
30. In judgment no. 148 of 1998, the First Division of the Court of Cassation followed the decision of the full court and held that there was no transfer of property by constructive expropriation where the public-interest declaration regarding the public works project concerned was deemed to have been invalid from the outset.
31. In judgment no. 5902 of 2003, the Court of Cassation, sitting as a full court, reaffirmed that there was no transfer of property in the absence of a valid declaration that expropriation was in the public interest.
32. This case-law should be compared with Law no. 458 of 1988 (see paragraphs 33-34 below) and with the Code of Expropriation Laws, which entered into force on 30 June 2003 (see paragraphs 43-44 below).
4. Law no. 458 of 27 October 1988
33. Section 3 of this Law provides:
“Any person who owns land which is used for the construction of public buildings or social housing shall be entitled to compensation for damage sustained where the expropriation has been declared unlawful by a court decision which has become final, but such person may not claim restitution of his property. Further, such a person is entitled, in addition to compensation for damage, to sums payable in respect of monetary depreciation and to any other sums mentioned in Article 1224 § 2 of the Civil Code, such amounts being calculated from the date of the unlawful taking of possession.”
34. Interpreting section 3 of the 1988 Law, the Constitutional Court stated in a judgment of 12 July 1990 (no. 384):
“In the impugned provision, the legislature has given preference, as between the owner's interest in obtaining restitution of his unlawfully-expropriated land, and the public interest - in this case the allocation of such land for building public, low cost or subsidised housing - to this latter interest.”
5. Amount of compensation for constructive-expropriation
35. Under the Court of Cassation's 1983 case-law on constructive expropriation, compensation in full, in the form of damages for the deprivation of the land, was due to the owner in consideration for the loss of ownership entailed by the unlawful occupation.
36. The Finance Act of 1992 (Article 5 bis of Legislative Decree no. 333 of 11 July 1992) amended that case-law by providing that the compensation payable on constructive expropriations could not exceed the amount due on formal expropriations. In judgment no. 369 of 1996, the Constitutional Court declared that provision unconstitutional.
37. Under the Finance Act 1996 (Law no. 662), which amended the provision that had been declared unconstitutional, compensation in full cannot be awarded for dispossessions effected before 30 September 1996. In such cases, the compensation is equivalent to the amount of compensation that would have been payable on a formal expropriation in the most favourable scenario for the owner, plus 10 %.
38. In judgment no. 148 of 30 April 1999, the Constitutional Court held that such compensation was compatible with the Constitution. However, in the same decision, it held that compensation in full, up to the market value of the land, could be claimed where the dispossession and deprivation of the land had not been in the public interest.
6. The case-law after the judgments of the European Court of Human Rights of 30 May 2000 in the cases of Belvedere Alberghiera and Carbonara and Ventura
39. In judgments nos. 5902 and 6853 of 2003, the Court of Cassation, sitting as a full court, again addressed the question of the constructive expropriation rule, referring to the judgments Belvedere Alberghiera S.r.l. v. Italy (no. 31524/96, ECHR 2000‑VI) and Carbonara and Ventura v. Italy (no. 24638/94, ECHR 2000‑VI) of the European Court of Human Rights.
40. In view of the finding of a violation of Article 1 of Protocol No. 1 in the above cases, the Court of Cassation affirmed that the constructive expropriation rule played an important role in the context of the Italian legal system and that it was compatible with the Convention.
41. More specifically, the Court of Cassation – after analysing the history of the constructive expropriation rule – held that in view of the uniformity of the case-law in this area, the constructive expropriation rule should be regarded as entirely “foreseeable” as of 1983. For this reason, constructive expropriation must be considered to comply with the lawfulness requirement. The Court of Cassation stated that occupation of land having taken place without a declaration that it was in the public interest was not capable of transferring title to the State. As to compensation, it stated that, even if such compensation was lower than the damage sustained by the claimant, and, in particular, lower than the value of the land, the compensation due in the event of constructive expropriation was sufficient to guarantee a “fair balance” between the demands of the general interest of society and the requirements of the protection of the individual's fundamental rights.
42. On an appeal seeking enforcement of a final judicial decision setting aside the declaration of public interest with regard to expropriation proceedings, and in view of the claimant's request to obtain restitution of land that had in the meantime been occupied and altered, the Consiglio di Stato, in judgment no. 2/2005 of 29 April 2005, delivered in plenary session, ruled on whether the irreversible alteration of the said land following the construction of “public” works could constitute a legal reason preventing restitution of the land. The Consiglio di Stato answered this question in the negative. In so doing, it:
(a) acknowledged that the case-law rule on constructive expropriation was lacking in respect of the need for legal certainty, with regard, inter alia, to the issue of identifying the date on which the public works must be considered “completed” and therefore on what date title had been transferred to the State;
(b) welcomed the Court's case-law, particularly the judgment in Belvedere Alberghiera Srl v. Italy, by affirming that, faced with a request for restitution of property that had been unlawfully occupied and altered, the work performed by the public authorities cannot, as such, constitute an absolute obstacle to restitution;
(c) interpreted Article 43 of the Code of Expropriation Laws (see paragraph 44 below) to mean that failure to return a plot of land could only be accepted in exceptional cases, namely where the authorities invoked a particularly strong public interest in the preservation of the construction in question;
(d) affirmed, in this context, that constructive expropriation could not be regarded as an alternative (“una mera alternative”) to duly conducted expropriation proceedings.
7. The Code of legislative provisions and regulations on expropriation in the public interest (“the Code”)
43. On 30 June 2003 Presidential Decree no. 327 of 8 June 2001, as amended by Legislative Decree no. 302 of 27 December 2002, and which governs expropriation proceedings, entered into force. It codifies the existing provisions and case-law in this area. In particular, it codifies the constructive expropriation rule. From its entry into force, the Code, which does not apply to cases of occupation which occurred prior to 1996 and is not therefore applicable to the instant case, superseded all previous legislation and case-law in the field of expropriation.
44. Article 43 of the Code provides that, in the absence of an expropriation order, or in the absence of a declaration stating that the expropriation is in the public interest, land that has been altered following the construction of public works passes into the ownership of the authorities which altered it; damages are paid in consideration. The authorities may acquire a property even where the town planning documents or the declaration that the expropriation is in the public interest have been set aside. The owner may apply to the court for restitution of the land. The authorities in question may object. Where the court decides not to order restitution of the land, the owner is entitled to compensation.
8. Constitutional Court judgments nos. 348 and 349 of 22 October 2007
45. In judgments nos. 348 and 349 of 22 October 2007, the Constitutional Court held that the national legislation must be compatible with the Convention as interpreted by the Court's case-law and, in consequence, declared unconstitutional section 5 bis of Legislative Decree no. 333 of 11 July 1992 as amended by Law no. 662 of 1996.
46. In judgment no. 349, the Constitutional Court noted that the insufficient level of compensation provided for by the 1996 Law was contrary to Article 1 of Protocol No. 1 and also to Article 117 of the Italian Constitution, which provides for compliance with international obligations. Since that judgment, the provision in question may no longer be applied in the context of pending national proceedings.
9. The Finance Act (Law no. 244) of 24 December 2007
47. Section 2/89 (e) of the Finance Act (Law no. 244) of 24 December 2007 established that in cases of constructive expropriation the compensation payable must correspond to the market value of the property, with no possibility of a reduction.
48. That provision is applicable to all expropriation proceedings under way on 1 January 2008, except those in which the decision on compensation for expropriation has been accepted or has become final.
II. RELEVANT INTERNATIONAL LAW AND PRACTICE
49. According to a general rule of international law developed by the Permanent Court of International Justice in a judgment delivered on 13 September 1928 in the Chorzów factory case (Case concerning the factory at Chorzów (Claim for indemnity) (The Merits), Collection of Judgments of the PCIJ, Series A no. 17), a distinction must be made between “expropriation” and “seizure” of property:
“The action of Poland which the Court has judged to be contrary to the Geneva Convention is not an expropriation – to render which lawful only the payment of fair compensation would have been wanting; it is a seizure of property, rights and interests which could not be expropriated even against compensation, save under the exceptional conditions fixed by Article 7 of the said Convention. As the Court has expressly declared in Judgment No. 8, reparation is in this case the consequence not of the application of Articles 6 to 22 of the Geneva Convention, but of acts contrary to those articles.”
50. The Iran-United States Claims Tribunal made the same distinction in the case of Amoco International Finance Corporation (Amoco International Finance Corporation v. Iran, Interlocutory Award of 14 July 1987, Iran-United States Claims Tribunal Reports (1987-II), § 192):
“... a clear distinction must be made between lawful and unlawful expropriations, since the rules applicable to the compensation to be paid by the expropriating State differ according to the legal characterisation of the taking ...”
51. In general international law, the following principles apply in cases of “seizure” or “unlawful expropriation” of property (Chorzów Factory Case, ibid.):
“It follows that the compensation due to the German Government is not necessarily limited to the value of the undertaking at the moment of dispossession, plus interest to the day of payment. This limitation would only be admissible if the Polish Government had had the right to expropriate, and if its wrongful act consisted merely in not having paid to the two Companies the just price of what was expropriated; in the present case, such a limitation might result in placing Germany and the interests protected by the Geneva Convention, on behalf of which interests the German Government is acting, in a situation more unfavourable than that in which Germany and these interests would have been if Poland had respected the said Convention. Such a consequence would not only be unjust, but also and above all incompatible with the aim of Article 6 and following articles of the Convention - that is to say, the prohibition, in principle, of the liquidation of the property, rights and interests of German nationals and of companies controlled by German nationals in Upper Silesia - since it would be tantamount to rendering lawful liquidation and unlawful dispossession indistinguishable in so far as their financial results are concerned.
The essential principle contained in the actual notion of an illegal act - a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals - is that reparation must, as far as possible, wipe-out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it - such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.”
52. The arbitral award of 19 January 1977 in the case of California Asiatic Oil Company and Texaco Overseas Petroleum Company v. the Government of the Libyan Arab Republic ([1978] 17 International Legal Materials 1) did not concern the taking of property in the strict sense but the termination of concessions to exploit crude oil resources granted many years earlier. The Sole Arbitrator took the view that the concessions were contractual in nature; in nationalising the plaintiff companies' interests, Libya had unlawfully reneged on the terms and conditions freely agreed by it in the exercise of its sovereignty. Finding the principle of restitutio in integrum to apply, he held that the Libyan Government was to perform its contractual obligations in full. The case ended in a settlement under which the plaintiff companies obtained an amount of crude oil to a certain monetary value but not the restoration of the status quo ante.
53. Article 35 of the Draft Articles on State Responsibility, drawn up by the International Law Commission of the United Nations, reiterates the principle of restitutio in integrum in the following terms:
“A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution:
(a) is not materially impossible;
(b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.”
54. Article 36 of the same Draft Articles provides:
“1. The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution.
...”
THE LAW
55. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Pecuniary damage
1. The Chamber judgment
56. In its judgment of 21 October 2008 the Chamber departed from the case-law on the application of Article 41 in cases of constructive expropriation. By six votes to one, the Chamber:
– abandoned the usual method, which was to base its award on the market value of the land, adjusted for inflation and increased by the appreciation brought about by the buildings erected by the expropriating authority;
– adopted a new method, based on the market value of the property on the date on which the applicants established with legal certainty that they had lost the right of ownership, the sum thus obtained to be increased by the interest due on the date on which the judgment was adopted by the Court, less any compensation already paid.
It justified this departure from the case-law by:
– its concern to avoid bringing about unequal treatment of applicants depending on the nature of the public works constructed by the authorities, which is not necessarily related to the potential of the land in its original state;
– its wish to avoid leaving scope for arbitrary decisions;
– its refusal to assign a punitive or dissuasive role to compensation with regard to the respondent State, rather than a compensatory role with regard to the applicant;
– acknowledgement of the change in domestic legislation (the Finance Act 2007) following the Constitutional Court's judgments nos. 348 and 349 of 22 October 2007, which provided that in cases of constructive expropriation compensation was to correspond to the market value of the property, with no possibility of a reduction.
57. The Court awarded the applicants 1,803,374 euros (EUR) in respect of pecuniary damage, EUR 45,000 in respect of non-pecuniary damage and EUR 30,000 in costs and expenses.
2. Arguments of the parties
(a) The applicants
58. The applicants considered that in the area of just satisfaction the judgment of 21 October 2008 amounted to a 180-degree reversal of the case-law in all cases of constructive expropriation recently examined by the Court (they referred to Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, ECHR 2001-I; Rusu and Others v. Romania, no. 4198/04, 19 July 2007; Vontas and Others v. Greece, no. 43588/06, 5 February 2009; Driza v. Albania, no. 33771/02, ECHR 2007-XII), although the ratio decidendi in the principal judgment remained the same. Were the Grand Chamber to confirm the Chamber judgment, a fresh violation of Article 1 of Protocol No. 1 would be added to that already suffered by the applicants in Italy.
59. According to the applicants, the Court's new approach in the judgment of 21 October 2008 had the effect of eliminating any differences between lawful and unlawful expropriations, and even of “legalising” and “ratifying” the Italian practice of constructive expropriation, which would encourage “systemic” violations, all the more attractive to the authorities in that the proceedings to challenge such actions were excessively long (20 years at national level and 8 years before the Court). In underlining the importance of the difference between lawful and unlawful expropriations, the applicants referred not only to the Grand Chamber's case-law (The former King of Greece and Others v. Greece [GC], no. 25701/94, ECHR 2000‑XII), but also to the case-law of other international courts and bodies, such as the Permanent Court of International Justice or the Iran-United States Claims Tribunal.
60. In this respect, the applicants submitted that the reparation which the Court orders to be paid to the victims of a violation of the Convention is, in accordance with the spirit and the letter of Article 41, subsidiary in nature. Wherever possible, the Court ought therefore to seek to restore the victim to the situation existing prior to the violation. In this connection, they pointed out that the principle of restitutio in integrum originated in the judgment delivered by the Permanent Court of International Justice on 13 September 1928 in the Case concerning the Factory at Chorzów, and has been held to constitute ideal redress in providing reparation for violations of the rules of international law. Indeed, the principle had been reaffirmed by Article 35 of the Draft Articles on State Responsibility, drawn up by the United Nations' International Law Commission, and by the case-law of the European Court of Human Rights (the applicants referred to Dimitrescu v. Romania, nos. 5629/03 and 3028/04, 3 June 2008; Fakiridou and Schina v. Greece, no. 6789/06, 14 November 2008; Katz v. Romania, no. 29739/03, 20 January 2009; Vontas and Others, cited above; and Bozcaada Kimisis Teodoku Rum Ortodoks Kilisesi Vakfı v. Turkey (no. 2), nos. 37639/03, 37655/03, 26736/04 and 42670/04, 3 March 2009).
61. The applicants also referred to Interim Resolution CM/ResDH(2007)3 of the Committee of Ministers of the Council of Europe on systemic violations of the right to the peaceful enjoyment of possessions through “indirect expropriation” by Italy, a document which required Italy to ensure restitutio in integrum and to adopt general measures to put an end to any ongoing situation and to avoid new similar violations.
62. They argued that the compensation method used by the Court prior to the judgment of 21 October 2008 was not a source of unequal treatment between applicants. In this connection, they submitted that the value of a plot of land depended on its classification in the detailed urban zoning plans (piani di zona) adopted by the authorities.
63. With regard to the Chamber's wish to avoid a situation where the former calculation method – which took account of the value of buildings constructed by the authorities subsequent to the constructive expropriation – would be perceived as introducing a practice of “punitive compensation”, the applicants emphasised that it would suffice to order the Government, instead of paying monetary compensation, to restore the disputed land. The applicants pointed out that, under the Italian Civil Code as it concerned the occupation of land by individuals, where the occupant acts in good faith and the owner of the occupied plot does not oppose the occupation within three months, the occupant is considered to be the owner, in exchange for the payment of compensation that is equivalent to twice the value of the land plus damages.
64. The applicants noted that the Constitutional Court's judgment no. 349 of 22 October 2007 and the Finance Act 2007, referred to in the judgment of 21 October 2008, could make no difference to their situation, since the domestic decisions in their case had become final, as had the Court's finding of a violation.
65. The applicants also submitted that, under the new compensation system, the amounts awarded by the Court were not only lower than they would have been had the expropriation been lawful, but were also lower than those awarded in similar circumstances by the national courts: firstly, the compensation awarded by the Italian courts was not limited to the value of the property at the date of occupation, but also took into a
