CASE OF DI GABRIELE AND OTHERS v. ITALY

FIRST SECTION

CASE OF DI GABRIELE AND OTHERS v. ITALY

(Application no. 13355/09)

JUDGMENT
 

STRASBOURG

23 January 2025

This judgment is final but it may be subject to editorial revision.

In the case of Di Gabriele and Others v. Italy,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

 Erik Wennerström, President,
 Raffaele Sabato,
 Artūrs Kučs, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 13355/09) 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 20 February 2009 by three Italian nationals, whose relevant details are listed in the appended table (“the applicants”), and who were represented by Mr D. Fimmanò, a lawyer practising in Frattamaggiore;

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 in private on 12 December 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the deprivation of the applicants’ land in the absence of a final determination of the compensation due to the applicants.

2.  The applicants were the owners of plots of land located in the Frattamaggiore municipality and recorded in the land register as folio no. 2, parcels no. 1966, 1969 and 1971.

3.  In May 1981 a project was adopted for the construction of a road and the works were entrusted to the Consorzio Generale Ricostruzione (CO.GE.RI.). By order of 30 December 1986 the President of the Campania Region authorised CO.GE.RI. to immediately occupy the applicants’ land. On 30 April 1987 CO.GE.RI. took physical possession of part of the applicants’ land. On 11 April 1990, it was authorised to immediately occupy almost all the remaining part of the applicants’ land and, on 1 August 1990, it took physical possession of it.

4.  By June 1989, CO.GE.RI. had built the pillars of a viaduct on the applicants’ land. However, no formal expropriation decree had been adopted.

5.  In 1990, the applicants brought an action for damages before the Naples District Court, claiming that the expropriation had been unlawful and seeking compensation. They mainly argued that the occupation had taken place after the expiry of the time-limit of three months from the authorisation, established by section 20 § 1 of Law no. 865/1971.

6.  By section 9 § 2 of Legislative Decree no. 354/1999, the time-limit for the occupation was extended from three to six months from the date of the authorisation.

7.  The Naples District Court ordered an independent expert valuation of the land. The expert determined the land’s value, as at June 1989, at 275,000 Italian Lire (ITL), corresponding to 142 euros (EUR), per square metre.

8.  By judgment of 15 September 2000, the Naples District Court acknowledged that the occupation had been unlawful; however, since the land had been irreversibly altered in June 1989, it had been acquired by the administration. It therefore ordered CO.GE.RI. and the National Autonomous Road Corporation (Azienda nazionale autonoma delle strade; “ANAS”) to pay damages.

Partially reducing the expert’s valuation, the District Court valued the land at ITL 200,000 (EUR 103) per square metre and awarded the applicants the overall amount of ITL 1,314,400,000 (EUR 678,830.94), plus inflation adjustment and statutory interest.

9.  All parties appealed.

10.  The applicants initiated enforcement proceedings against ANAS and, by order dated 16 July 2002, they obtained the amounts awarded by the first‑instance judgment.

11.  By judgment of 15 January 2003 the Naples Court of Appeal quashed the first instance decision. Relying on section 9 § 2 of Legislative Decree no. 354/1999, it held that the occupation had taken place in time. Additionally, since its maximum duration had been extended (by the same Decree and by subsequent legislation) until 31 December 2003, the occupation was still lawfully ongoing. It therefore rejected the applicants’ claims.

12.  The applicants appealed to the Court of Cassation, arguing among other things that Legislative Decree no. 354/1999 should not be applied retroactively.

13.  By judgment of 1 September 2008 the Court of Cassation rejected all their claims.

As to the application of Legislative Decree no. 354/1999, it held that it applied when the occupation was still ongoing; in the applicants’ case, the occupation was ongoing since no expropriation order had been issued and they had not invoked a form of indirect expropriation.

The Court of Cassation also declared that one of the claims brought by the applicants was inadmissible due to lack of self-sufficiency (autosufficienza), since they had not reported the complaint in the appeal.

14.  In 2004, the applicants initiated new proceedings, seeking compensation for the lawful expropriation. In the same year, ANAS initiated proceedings for the recovery of the amounts paid (see paragraph 10 above), and the two proceedings were joined.

15.  The Naples District Court ordered a new expert valuation of the land. The expert determined the land’s value, as at June 1989, at EUR 141.35 per square metre; additionally, she determined that the expropriation had taken place by formal orders issued in September 1994 (for parcel no. 1969) and in June 2003 (for parcels nos. 1966 and 1971) and quantified the compensation due for the prior occupation.

16.  By judgment of 8 January 2018, the Naples District Court ordered the applicants to return the amounts received to ANAS, plus statutory interest.

As to the applicants’ request, the District Court considered that only CO.GE.RI. was responsible for the payment of compensation and, relying on the expert valuation, it awarded the applicants EUR 868,171.70 as expropriation compensation and EUR 958,002.92 as compensation for the period of lawful occupation, without any inflation adjustment.

17.  The applicants appealed, asking also that the enforceability of the restitution order be provisionally suspended; on 21 June 2018, the Naples Court of Appeal rejected this request.

18.  Proceedings continued on the merits before the Naples Court of Appeal. On 12 March 2024, proceedings were interrupted due to the death of the applicants’ representative; according to domestic law, they had to be reinstated within a three-month time-limit. No further information has been provided to the Court.

19.  By a letter of 5 July 2021, CO.GE.RI. informed the applicants that it was facing significant problems and delays in the payment of compensations.

20.  The applicants complained, under Article 1 of Protocol No. 1 to the Convention, that the deprivation of property had been unlawful, since the occupation had taken place in breach of the time-limits set forth by domestic law and was subsequently validated by means of retrospective legislation; and that it had, in any event, amounted to a de facto expropriation. They further complained that they had not received adequate compensation for the deprivation of their land.

21.  They further complained, under Article 6 of the Convention and Article 1 of Protocol No. 1, of a legislative interference with pending proceedings and of an excessive formalism by the Court of Cassation.

THE COURT’S ASSESSMENT

22.  The Court takes note of the information regarding the death of the third applicant, Mr G. Narrante, and the wish of his heir, Ms A. Chianese (the second applicant), to continue the proceedings in his stead, as well as of the absence of an objection to that wish on the Government’s part. Therefore, the Court considers that Ms Chianese has standing to continue the proceedings in the stead of the deceased.

23.  The Government objected to the admissibility of the complaint on grounds of non-exhaustion, arguing that the second set of domestic proceedings was still ongoing. They also argued that the payment made by ANAS in 2002 has deprived them of their victim status.

24.  As to the first objection, the applicants argued that the ongoing proceedings could not be considered effective, as they did not allow for a finding that the expropriation had been unlawful; and that in any case proceedings had already lasted over 30 years. As to the loss of victim status, they argued that there has been no acknowledgment of the unlawfulness of the expropriation and that they have been ordered to return the sums received from ANAS.

25.  The Court considers that these questions are closely linked to the substance of the applicants’ complaint. It therefore joins the objections to the merits.

26.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

27.  As regards the lawfulness of the expropriation, the general principles have been summarised in Belvedere Alberghiera S.r.l. v. Italy (no. 31524/96, §§ 56-63, ECHR 2000-VI).

28.  The Court notes that, in the present case, the transfer of ownership occurred on the basis of formal expropriation orders (see paragraph 15 above), and that the applicants did not challenge the lawfulness of such orders when they became aware of them. The case therefore differs from those in which the administration acquired the land based on a form of indirect expropriation, in the absence of a formal expropriation order (compare with Belvedere Alberghiera S.r.l., cited above, or Messana v. Italy, no. 26128/04, 9 February 2017).

29.  The Court acknowledges that the circumstances of the present case may raise some doubts as to the lawfulness of the initial occupation, which had been carried out in breach of the time-limits provided, at the time, by domestic law. It was only by Legislative Decree no. 354/1999 that these time‑limits were retrospectively extended, leading the domestic courts to conclude that the occupation had been lawful.

30.  Nevertheless, the Court does not consider it necessary to establish whether those circumstances are such as to render the expropriation unlawful, since in any event it did not strike a fair balance between the general interest and the protection of the applicants’ rights under Article 1 of Protocol No. 1.

31.  In this regard, the Court has already found that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference and a total lack of compensation can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 95, ECHR 2006-V).

32.  In the present case, after more than 37 years since the occupation of their land, the applicants have not yet obtained a final determination of the compensation due to them. In fact, according to the most recent information provided to the Court by the parties, the second set of domestic proceedings is still ongoing (see paragraph 18 above). In such circumstances, the applicants cannot be required to wait any longer for the outcome of the domestic proceedings.

33.  Additionally, the applicants have been ordered to return the amounts provisionally received by ANAS and, in the meantime, they have not received any payment from CO.GE.RI., despite the judgment issued on 8 January 2018 by the Naples District Court (see paragraph 16 above).

34.  It can therefore not be concluded that the applicants have lost their victim status for the purposes of this complaint, nor that they have obtained adequate compensation for the deprivation of their land.

35.  Therefore, the Court rejects the Government’s preliminary objections and finds that there has been a violation of Article 1 of Protocol No. 1 to the Convention.

36.  The applicants also complained, under Article 6 of the Convention and Article 1 of Protocol No. 1, that the adoption of Legislative Decree no. 354/1999 (see paragraph 6 above) constituted a legislative interference with pending proceedings. Additionally, they complained of an excessive formalism of the judgment of the Court of Cassation of 1 September 2008 (see paragraph 13 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 complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

37.  The applicants claimed, in respect of pecuniary damages, the amount awarded by the Naples District Court on 15 September 2000, namely 678,830.94 euros (EUR), plus inflation adjustment and statutory interest. They quantified such sum in EUR 2,907,419.04. In the alternative, they claimed the lower amount awarded by the Naples District Court on 8 January 2018.

They further claimed EUR 30,000 jointly in respect of non-pecuniary damage, EUR 105,888.48 in respect of costs and expenses incurred before domestic courts and EUR 39,075.85 in respect of costs and expenses incurred before the Court.

38.  The Government contested these claims as excessive. They argued that the amounts awarded by the 2000 and the 2018 judgments are substantially the same and that the applicants did not contest the latter. Additionally, they point out that a damage award would pose a risk of a duplication of payments, since the domestic proceedings are still ongoing.

39.  The Court has found a violation of Article 1 of Protocol No. 1 on account of the fact that the applicants have not yet received a final compensation for the occupation and subsequent expropriation of their land (see paragraphs 32-35 above).

40.  In respect of expropriation compensation, the relevant criteria for the calculation of pecuniary damage have been set forth in Scordino (cited above, § 258). In particular, the Court relied on the market value of the property at the time of the expropriation as stated in the court-appointed expert’s reports drawn up during domestic proceedings. As to compensation for the period of occupation, the relevant criteria have been set forth in Luigi Serino v. Italy (no. 3), no. 21978/02, § 47, 12 October 2010. In both cases, the Court converted the resulting amounts to the current value to offset the effects of inflation and awarded interest on it.

41.  In the present case, the Court considers it appropriate to rely on the most recent expert report (see paragraph 15 above) – which has formed the basis for the 2018 judgment invoked by the Government (see paragraph 16 above) – as the said report has determined the compensation due to the applicants in respect of both the expropriation and the prior occupation. The Court therefore awards the amounts indicated in the report, plus inflation adjustment and statutory interest.

42.  The Court does not see the risk of duplication of payments stated by the Government. The present judgment does not affect the possibility, for the Government, to obtain the restitution of any amount paid in excess to the applicants; and nothing prevents domestic courts from taking into account any amount already paid in execution of the present judgment.

43.  Therefore, having regard to the applicants’ claims, and taking into account the principle non ultra petita, the Court awards the applicants jointly the amount of EUR 2,907,419 in respect of pecuniary damage.

44.  Furthermore, the Court awards, jointly to the applicants, EUR 5,000 for non-pecuniary damage, plus any tax that may be chargeable, as well as EUR 10,000 covering costs under all heads, plus any tax that may be chargeable to the applicants.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicants jointly, within three months, the following amounts:

(i)  EUR 2,907,419 (two million nine hundred and seven thousand four hundred nineteen euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)  EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii)  EUR 10,000 (ten thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(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;

Done in English, and notified in writing on 23 January 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Liv Tigerstedt Erik Wennerström
 Deputy Registrar President

APPENDIX

No.

Applicant’s Name

Year of birth

Place of residence

1.

Clelia DI GABRIELE

1939

Crispano

2.

Angela CHIANESE

1944

Cardito

3.

Giuseppe NARRANTE

Heir:

Angela CHIANESE

1932

deceased: 2010

1944

Cardito

Cardito