CASE OF DE GREGORIO AND CAMMARATA v. ITALY

FIRST SECTION

CASE OF DE GREGORIO AND CAMMARATA v. ITALY

(Application no. 6899/10)

JUDGMENT
 

STRASBOURG

20 June 2024

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

In the case of De Gregorio and Cammarata v. Italy,

The European Court of Human Rights (First Section), sitting 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. 6899/10) 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 23 December 2009 by two Italian nationals, Mr Giacomo De Gregorio (“the first applicant”) and Ms Rosa Cammarata (“the second applicant”), who were born in 1942 and 1918 respectively, live, or lived, in Palermo and were represented by Mr G. Greco, a lawyer practising in Palermo;

the decision to give notice of the complaints concerning Article 1 of Protocol No. 1 to the Convention to the Italian Government (“the Government”), represented by their Agent, Mr. L. D’Ascia, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 28 May 2024,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the expropriation of a plot of land and the award of compensation based on the “average agricultural value” of the land.

2.  In 1999 a portion of the land at issue was occupied by A.M.A.P. s.p.a., a company delegated by the Palermo Municipality, for the purposes of building a road and two water reservoirs.

3.  In January 2002 the first applicant, who was the owner of the land, and the second applicant, who was the usufructuary of the land, brought an action for damages before the Regional Public Water Court arguing that there had been a de facto dispossession without a formal expropriation order having been issued.

4.  In March 2002 an expropriation order was issued with respect to the land.

5.  In October 2006 the Regional Public Water Court found that the expropriation order had not been issued in a timely manner. As the land had been irreversibly altered by the public structures erected on it, the land was transferred to the authorities pursuant to the constructive-expropriation rule. The court held that both applicants had the right to obtain damages for the dispossession of the portion of the land on which the public works had been built (amounting to 12,825 square metres). As to the quantification of damages, the court found that the amount due in connection with the dispossession had to be based on the market value of the land. However, it stated that it could not rely on the valuation carried out by the independent expert it had appointed, as it found that the expert’s conclusions were not supported by concrete and objective elements. It also considered that the estimate did not take into account the limited possibilities of exploitation, even for agricultural purposes, of the land in question, given the existence of constraints both from a hydrogeological point of view and from a forestry and landscape point of view. It therefore took some elements from the expert valuation and proceeded with a fresh calculation of what it considered to be the most probable market value at the date of the dispossession (21 December 2001). In this connection, it awarded the applicants, jointly, 36,562.79 euros (EUR) to be increased by a sum reflecting inflation adjustment and statutory interest on the capital progressively adjusted, running from the date of the dispossession.

6.  In February 2008 the Higher Public Water Court overturned the first-instance judgment. It found that the Regional Public Water Court had erred in considering that the formal expropriation order had been issued in an untimely fashion, a determination which had led the latter court to conclude that the transfer of the property had occurred by means of constructive expropriation. It found instead that the expropriation of the applicant’s land had been carried out in accordance with the law, as the applicable timeframes had been complied with. On the issue of compensation, it held that compensation for the expropriation had to be based not on the property’s market value but, rather, on the “average agricultural value”. It fixed the amount due to the applicants, jointly, as expropriation compensation at EUR 3,649. The sum was to be increased by statutory interest.

7.  In October 2009 the Court of Cassation dismissed the appeal on points of law lodged by the applicants.

8.  The applicants complained under Article 1 of Protocol No. 1 to the Convention of the disproportionate interference with their property rights on account of the amount of expropriation compensation that was awarded to them, which was not reasonably related to the property’s market value.

9.  The applicants further complained, under the same Article, about the establishment of an easement on the remaining land and the allegedly inadequate amount of compensation awarded by the authorities.

THE COURT’S ASSESSMENT

10.  The Court takes note of the information regarding the death of the second applicant, Mrs Rosa Cammarata, and the wish of the first applicant, Mr Giacomo De Gregorio, who is her heir, to continue the proceedings in her stead. The Court further notes the absence of any objection on the Government’s part. Therefore, the Court considers that the first applicant has standing to continue the proceedings on behalf of the deceased. However, for practical reasons, reference will still be made to both applicants throughout the ensuing text.

11.  The Government submitted a unilateral declaration which did not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1 in fine). The Court rejects the Government’s request to strike the application out and will accordingly pursue its examination of the case (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §75, ECHR 2003 VI).

12.  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.

13.  The Court refers to its judgment in the case of Preite v. Italy (no. 28976/05, §§ 18-29 and 42-53, 17 November 2015) for a summary of the relevant domestic law and practice as well as the relevant general principles applicable in the present case.

14.  The Court is prepared to accept that the expropriation at issue in the present case was carried out in accordance with the law (see paragraph 6 above) and it is not contested that it pursued a legitimate aim in the public interest. It remains to be determined whether the interference at issue was proportionate. The Court observes that the expropriation compensation awarded to the applicants was based on the so-called “average agricultural value” criterion (see paragraph 6 above) and reiterates that it has already found that compensation based on the average agricultural value bears no reasonable relationship with the market value of the land (see Preite, cited above, § 51). Having examined all the material submitted to it and the parties’ observations, the Court has not found any fact or argument capable of persuading it to reach a different conclusion in the present case.

15.  There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention in relation to the compensation awarded for the expropriation.

16.  The applicants also raised other complaints under Article 1 of Protocol No. 1 (see paragraph 9 above). The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

17.  It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

18.  The applicants claimed 677,000 euros (EUR) in respect of pecuniary damage and EUR 80,000 in respect of non-pecuniary damage.

19.  The Government contested the claims as excessive.

20.  The Court has found a violation of Article 1 of Protocol No. 1 on account of the inadequate compensation for the expropriation of the applicants’ land, in light of a calculation based on the “average agricultural value” instead of the actual market value of the land.

21.  The relevant criteria for the calculation of pecuniary damage in lawful expropriation cases have been set forth in Scordino v. Italy (no. 1) ([GC], no. 36813/97, § 258, ECHR 2006-V). Taking into account the calculations provided by the applicant and related documents, as well as the Government’s objections, the Court finds it appropriate to rule on an equitable basis and to award EUR 65,000 as pecuniary damage, plus any tax that may be chargeable on that amount.

22.  As regards non-pecuniary damage, the Court awards the applicants jointly EUR 5,000, plus any tax that may be chargeable on that amount.

23.  As the applicants did not submit a claim for costs and expenses, the Court makes no award under this head.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  That the respondent State is to pay the first applicant, within three months, the following amounts:

(i)  EUR 65,000 (sixty-five thousand 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;

(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 20 June 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Liv Tigerstedt Péter Paczolay
 Deputy Registrar President