FIRST SECTION
DECISION
Application no. 13447/07
Angiolina CARÉ and Others
against Italy
The European Court of Human Rights (First Section), sitting on 14 November 2023 as a Committee composed of:
Péter Paczolay, President,
Gilberto Felici,
Raffaele Sabato, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 13447/07) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 24 March 2007 by the applicants listed in the appended table (“the applicants”) who were represented by Mr M. De Stefano and Mr F. Scaglione, lawyers practising in Rome and Locri respectively;
the decision to give notice of the application to the Italian Government (“the Government”), represented by their former Agents, Mr I. M. Braguglia, Mr R. Adam and Ms E. Spatafora, their former co‑Agents, Mr N. Lettieri and Ms P. Accardo, and their Agent, Mr L. D’Ascia;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The present case concerns the alleged failure by the domestic courts to grant the applicants adequate compensation for the expropriation of their land.
2. The applicants were the owners of a plot of land in Fabrizia. In 1982, the President of the Calabria Region approved a project for the construction of a public structure and authorised a private company to occupy the land.
3. In 1983, the company reached an agreement with the applicants for the transfer (cessione volontaria) of the land against an advance payment of 92,162,980 Italian liras (ITL). Since the laws establishing compensation criteria for the expropriation of building land had been declared unconstitutional (judgment of the Constitutional Court no. 5 of 25 January 1980), the parties agreed that the final amount of the compensation would have to be determined after the adoption of a new law, pursuant to Article 1 of Law no. 385 of 29 July 1980.
4. On 23 and 26 July 1989, the applicants brought an action before the Vibo Valentia District Court against the Calabria Region and the private company, seeking the payment of the final expropriation compensation.
5. By a judgment of 24 January 2002, the court ordered the Calabria Region to pay the claimants ITL 538,879,928 for the loss of their property and an additional sum of ITL 61,460,495 as compensation for the period of occupation which had preceded its transfer. The sums were calculated in accordance with Article 5 bis of Law Decree no. 333 of 11 July 1992, as amended by Law no. 359 of 8 August 1992 (hereinafter Law no. 359/1992) and reflected half of the market value of the land. The District Court also awarded statutory interest from 1983 and a further amount calculated according to the net average rate of return on government bonds with a maturity of no more than 12 months from the date of introduction of the first instance proceedings (see paragraph 4. above). According to the applicants, under Law no. 413 of 30 December 1991, tax at a rate of 20% would be deducted at the source from these sums upon payment.
6. The Calabria Region appealed against the judgment to the Catanzaro Court of Appeal.
7. By a judgment of 8 October 2009, the Court of Appeal, with reference to the Constitutional Court’s judgment no. 349 of 24 October 2007, whereby Article 5 bis of Legislative Decree no. 333/1992 had been declared unconstitutional, awarded the applicants the full market value of the land, equal to 164,224 euros (EUR), increased by statutory interest. The Court also confirmed the award of the further sum calculated according to the net average rate of return on government bonds (see paragraph 5 above). The Court of Appeal reached this conclusion in application of a decision of the Court of Cassation, sitting as a full court (decision no. 14999 of 16 July 2008), which had established that the harm caused by the delayed payment of a sum of money (debito di valuta) had to be compensated according to the said criteria, unless the creditor had proven to have suffered greater damage. The Court of Cassation had specified that the choice to refer to the net average rate of return on government bonds was intended to prevent the debtor from taking advantage of a delayed payment to the detriment of the creditor.
8. This judgment was not appealed against and became final.
9. On 21 June 2013, the Court was informed that one of the applicants, Ms Raffaelina Cirillo, had died.
10. In execution of the Court of Appeal’s judgment, in 2017 the applicants and Ms Caristina (heir of Ms R. Cirillo) received a total amount of EUR 438.354,12.
11. Invoking Article 1 of Protocol No. 1 to the Convention, the applicants complained of the inadequacy of the amount awarded as compensation for the expropriation of their land. They further complained that the expropriation compensation had been further reduced by 20% on account of the amount they had had to pay in taxes.
12. Under Article 6 § 1 of the Convention, they also claimed that the enactment and application to their case of Article 5 bis of Law no. 359/1992 amounted to an interference by the legislature in breach of their right to a fair hearing.
THE COURT’S ASSESSMENTPreliminary issue
13. The Court takes note of the information regarding the death of Ms Raffaelina Michelina Cirillo and the wish of her heir, Ms Nazarena Caristina, to continue the proceedings in her stead, as well as of the absence of any objection to that wish on the Government’s part. Therefore, and having regard to the subject matter of the complaints, the Court considers that Ms Caristina has standing to continue the proceedings in the stead of Ms Cirillo. However, for practical reasons, reference will still be made to the “applicants” throughout the ensuing text.Alleged violation of Article 1 of Protocol No. 1 to the Convention
14. The Court notes at the outset that it does not have to decide on the Government’ s preliminary objection concerning non-exhaustion of domestic remedies, since the application is inadmissible in any event on the following grounds.
15. The relevant domestic law and practice on formal expropriations are to be found in Scordino v. Italy (no. 1) ([GC], no. 36813/97, §§ 47-61, ECHR 2006‑V).
16. The Court notes that the applicants have not contested that the deprivation of their possessions was in accordance with the law and that it pursued a legitimate aim in the public interest. It remains to be determined whether the interference with their property rights was proportionate.
17. In this regard, the Court reiterates that a taking of property without payment of an amount reasonably related to its value would normally constitute a disproportionate interference. In many cases of lawful expropriation, such as a distinct taking of land for road construction or other public purposes, only full compensation may be regarded as reasonably related to the value of the property (see Former King of Greece and Others v. Greece [GC] (just satisfaction), no. 25701/94, § 78, 28 November 2002). Such compensation must normally be calculated based on the market value of the property at the date on which ownership thereof was lost (see Guiso‑Gallisay v. Italy (just satisfaction) [GC], no. 58858/00, § 105, 22 December 2009, and Scordino (no. 1), cited above, § 258). Nonetheless, the Court has held that the adequacy of the compensation would be diminished if it were to be paid without reference to various circumstances liable to reduce its value, such as the lapse of a considerable period of time (see Demiray v. Türkiye, no. 61380/15, § 60, 18 April 2023; Scordino (no. 1), cited above, § 258; and Chinnici v. Italy (no. 2), no. 22432/03, § 43, 14 April 2015).
18. Turning to the facts of the present case, the Court notes that while the first-instance court granted the applicants a sum equal to half of the value of the land, the Catanzaro Court of Appeal found that such compensation was inadequate and, drawing on the Constitutional Court’s judgment no. 349 of 24 October 2007, held that the applicants were entitled to compensation corresponding to the full market value of the property (see paragraph 7 above). The Court of Appeal further increased that amount by statutory interest and by an additional sum calculated according to the net average rate of return on government bonds with a maturity of no more than 12 months (see paragraph 7 above).
19. To the extent that the applicants are not satisfied with the latter part of the compensation in that there had been no adjustment for inflation, the Court notes that the Court of Appeal did not fail to award any sum at all reflecting the passage of time (see, in contrast, Chinnici, cited above). On the contrary, it took this factor into account and, in addition to statutory interest, increased the award with a further amount calculated with reference to the net average rate of return on government bonds with a maturity of no more than 12 months (see paragraph 7 above). The Court therefore accepts that the amount of compensation obtained by the applicants was proportionate.
20. To the extent that the applicants complained about the reduction of the compensation on account of the amount they had to pay in tax under Law no. 413/1991, the Court notes that the applicants did not provide evidence that such a tax had been levied on them. In any event, the Court has found, in previous cases, that the fact that the tax at issue had been applied to sums awarded as expropriation compensation was not sufficient to call into question the adequacy of such compensation (see Cacciato v. Italy (dec.), no. 60633/16, § 32, 16 January 2018, and Guiso and Consiglio v. Italy (dec.), no. 50821/06, §§ 38-52, 16 January 2018).
21. In view of the foregoing, this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.Alleged violation of Article 6 § 1 of the Convention
22. The applicants alleged that the enactment and application to their case of Article 5 bis of Law no. 359/1992 amounted to interference by the legislature in breach of their right to a fair hearing.
23. The Court notes that the impugned legislation was declared unconstitutional and, therefore, was not applied by the Catanzaro Court of Appeal (see paragraph 6 above).
24. In the light of the above, it cannot be said that the applicants have victim status in respect of this complaint, which is therefore incompatible ratione personae with the provisions of the Convention and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 7 December 2023.
Liv Tigerstedt Péter Paczolay
Deputy Registrar President
Appendix
No.
Applicant’s Name
Year of birth
Nationality
Place of residence
1.
Angiolina CARÉ
1926
Italian
Fabrizia
2.
Bruno CIRILLO
1956
Italian
Salerno
3.
Maria Cecilia CIRILLO
1964
Italian
Baronissi
4.
Raffaellina CIRILLO
Heir:
Ms Nazarena CARISTINA
1918
(deceased 2013)
Italian
Caulonia
5.
Salvatore CIRILLO
1925
Italian
Fabrizia
6.
Immacolata MAIOLO
1926
Italian
Fabrizia
7.
Immacolata TORTONIA
1929
Italian
Salerno
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