FIRST SECTION
DECISION
Application no. 67132/10
CA.RO. S.R.L.
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. 67132/10) 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 2 November 2010 by CA.RO. S.r.l. (“the applicant company”), a limited liability company with its registered seat in Milan, represented by Mr N. Paoletti, a lawyer practising in Rome;
the decision to give notice of the application to the Italian Government (“the Government”), represented by their Agent, Mr L. D’Ascia;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the expropriation of the applicant company’s land and the award of compensation based on criteria which did not reflect the property’s market value.
2. The applicant company was the owner of plot of land in Novara.
3. On 12 June 2007 the applicant company entered into an agreement with the Novara municipality for the voluntary transfer of the abovementioned plot of land. In the agreement, titled “Acceptance [of] expropriation compensation offered for voluntary transfer” (Accettazione indennità d’esproprio offerta per cessione volontaria), the applicant company agreed to:
“expressly accept, without reservation, compensation in the amount of 39 euros (EUR) per square metre, plus V.A.T. for the voluntary transfer of the land [at issue];
allow, immediately, the physical occupation of the land by the Novara Municipality, with no further claims, pending the conclusion of the expropriation procedure (...)
waive their right to lodge proceedings with a view to challenging the compensation (opposizione alla stima) and to any further proceedings in connection with the occupation and expropriation (...) of the land [at issue], declaring to be fully satisfied with the compensation offered, amounting to EUR 824,850 plus V.A.T.”
The agreement further specified that the compensation had been calculated pursuant to Section 37 of the Consolidated Law on Expropriations (enacted by Presidential Decree no. 327 of 8 June 2001). That provision, as in force at the material time, provided for compensation based on criteria established by section 5 bis of Law no. 359 of 8 August 1992, which did not reflect the market value of the land (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 56-59, ECHR 2006-V).
4. On 3 July 2007 the municipality took physical possession of the land.
5. On 21 August 2007 the municipality paid the applicant company an advance corresponding to 80% of the total sum agreed upon.
6. On 24 October 2007 the Italian Constitutional Court declared the impugned compensation criteria unconstitutional and held that expropriation compensation had to reflect the market value of the land (see Messana v. Italy, no. 26128/04, §§ 18-20, 9 February 2017).
7. By a letter of 11 February 2008 addressed to the municipality, the applicant company requested that the expropriation compensation be based on the property’s market value, in light of the Constitutional Court’s judgment. The municipality replied that it was precluded from doing so. Further unsuccessful attempts to request an increase of the compensation followed.
8. On 15 January 2009 the municipality issued a formal expropriation order providing for compensation reflecting the sum agreed on by the parties in 2007. The order specified that the part of the compensation that had yet to be paid to the applicant company be deposited with the Bank for Official Deposits (Cassa depositi e prestiti).
9. The applicant company brought proceedings (opposizione alla stima) against the municipality challenging the amount of compensation as reiterated in the expropriation order. It argued, in particular, that compensation for the dispossession of their land had to be related to the property’s market value.
10. On 3 May 2010 the Turin Court of Appeal declared the applicant company’s application inadmissible. It considered that the agreement concluded between the parties on 12 June 2007 (see paragraph 3 above) was a key element to be considered in its assessment of the applicant company’s claim. Indeed, it found that the acceptance of the compensation by the applicant company, with an express waiver concerning the very proceedings it was seeking to introduce, could be qualified as a reason of inadmissibility for such proceedings. It added that, even following the Constitutional Court’s judgment, the local authority was bound by the contractual agreement between the parties in relation to the amount of compensation. This, in turn, entailed that the amount agreed upon could not have been subsequently altered. The court also noted that, had the local authority awarded a higher amount than that expressly agreed upon, it would have exposed itself to liability for misuse of public funds. The court further found no grounds for declaring the agreement between the parties null and void.
11. On 20 February 2012 the Court of Cassation upheld the Court of Appeal’s decision.
12. On 30 July 2012, as the proceedings before the Court of Cassation had come to an end, the municipality paid the applicant company the remaining portion of the compensation, increased by statutory interest running from the date the sum had been placed in the Bank for Official Deposits.
13. The applicant company complained under Article 1 of Protocol No. 1 to the Convention of a disproportionate interference with its property rights on account of the allegedly inadequate amount of compensation it had received for the expropriation of its land.
THE COURT’S ASSESSMENT
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 Court observes that the applicant company has not contested that the deprivation of its possessions was in accordance with the law and that it pursued a legitimate aim in the public interest. Rather, it argued that the interference with its property rights was not proportionate on account of the compensation received, which was not reasonably related to the property’s market value.
16. 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 Scordino (no. 1), cited above, § 258).
17. That being said, the Court reiterates that in order to assess the conformity of the State’s conduct with the requirements of Article 1 of Protocol No. 1, it must go beneath appearances and look into the reality of the situation, which requires an overall examination of the various interests at issue; this may call for an analysis not only of the compensation terms – if the situation is akin to the taking of property – but also of the conduct of the parties to the proceedings (see Beyeler v. Italy [GC], no. 33202/96, § 114, ECHR 2000‑I).
18. Turning to the particular circumstances of the present case, the Court notes at the outset that the impugned compensation terms had been determined on the basis of an agreement whereby the applicant company had unequivocally accepted such terms, declaring itself to be fully satisfied with the compensation at issue, which the text of the agreement specified was based on criteria that did not reflect the property’s market value (see paragraph 3 above). The Court further finds it particularly significant that, by the same agreement, the applicant company had expressly waived its right to challenge the amount agreed upon before the domestic courts (ibid.). The Court observes that there is nothing in the case file that would lead it to question whether the applicant company was conscious of the consequences of such an undertaking or that it did not enter into the agreement voluntarily. Moreover, the Court can see nothing manifestly unfair or unreasonable in the decisions of the domestic courts to declare the applicant company’s claim inadmissible, inter alia, on the grounds that the company had to bear the consequences of its choice to waive the right to the very proceedings it was seeking to lodge (see paragraph 10 above).
19. Against the above background, the Court cannot conclude that, in the specific circumstances of the present case, the applicant company was made to bear a disproportionate or excessive burden by the State authorities.
20. Accordingly, the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) 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
Full & Egal Universal Law Academy