Information Note on the Court’s case-law No. 115

January 2009

Sud Fondi srl and Others v. Italy - 75909/01

Judgment 20.1.2009 [Section II]

Article 7

Article 7-1

Nullum crimen sine lege

Penalty adjudged arbitrary as based on provision that did not have “quality of law”: violation

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Confiscation order adjudged arbitrary as based on provision that did not have “quality of law”: violation

Facts: The three applicant companies were the owners of the land and buildings that were the subject of the application in the instant case. In 1993 they agreed on a building project with the municipality. Planning permission was granted in 1995. In 1996 a public prosecutor started a criminal investigation and, considering the development illegal, made a temporary possession order in respect of all the buildings. In 1997 the Court of Cassation set aside that order and ordered the return of all the buildings to the owners on the grounds that the development plan did not contain any prohibition on building on the site. In a judgment of 1999 a criminal court held that the buildings had been built illegally. However, as the local authority had granted planning permission, it found that the accused had not been guilty of negligence and had not had any unlawful intent and so acquitted them for lack of mens rea. However, it ordered confiscation of all the land and buildings and their transfer to the municipality. In a judgment of 2000 a court of appeal held that the grant of planning permission was lawful and acquitted the accused on the grounds that the substantive elements of the offence had not been proved. It also quashed the confiscation order in respect of all the land and buildings. In 2001 the Court of Cassation reversed that decision without remitting the case for further consideration. It found that the building project was materially unlawful as the land was the subject of a total ban on building and to statutory restrictions designed to protect the environment. It acquitted the accused on the grounds that they had not been guilty of negligence and had had no unlawful intent to commit the offences, which were the result of an “inevitable and excusable error” in the interpretation of “vague and poorly formulated” regional regulations which interfered with the national law. The Court of Cassation also took into account the conduct of the administrative authorities. It noted, in particular, that (i) on obtaining the planning permission the applicant companies had received assurances from the director of the municipal office; (ii) that the covenants protecting the site did not appear on the development plan; and (iii) that the competent national authority had not intervened. Lastly, the Court of Cassation urged again