CERMENATI AND OTHERS v. ITALY

FIRST SECTION

DECISION

Application no. 54900/21
Adelaide CERMENATI and Others
against Italy

The European Court of Human Rights (First Section), sitting on 30 April 2025 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. 54900/21) 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 22 October 2021 by the applicants listed in the appended table (“the applicants”) and represented by Mr M. Collevecchio, a lawyer practising in Rome;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The case concerns the issuance by the authorities of a demolition order concerning the applicants’ homes.

2.  The applicants are members of three families who have been living since 2011 in three villas in La Thuile (Valle D’Aosta). The villas are formally owned by Mr Alessandro Bandito (the second applicant), Mr Carlo Augusto Francesco Ceffa (the third applicant), and Mr Stefano Raffaelli (the eight applicant).

3.  The villas were constructed on a plot of land purchased by the applicants in 2009, following the issuance of a building permit by the municipality of La Thuile on 20 July 2010.

4.  In 2011 the co-owners of a condominium building (condominio; hereinafter, “the condominium”) adjacent to the villas challenged the building permit before the Valle d’Aosta Regional Administrative Court on multiple grounds. Among other things, the condominium argued that the villas lacked primary infrastructures (opere di urbanizzazione primaria) and, specifically, that they did not have immediate access to the public road, as required by the law. It added that the only path departing from the villas led to the condominium’s property, that the applicants had no right of way over it (servitù di passaggio), and that, in any event, the villas did not comply with the regulations which required a minimum distance of buildings from the boundary line and from the condominium building. Lastly, it contended that the municipality had failed to adopt the necessary detailed land-use plan (piano di lottizzazione) based on the law on urbanism, so that no building activity should have been allowed.

5.  The applicants disputed these arguments by written submissions.

6.  On 16 March 2011 the Regional Administrative Court dismissed the action, except for the grounds concerning the compliance with distance regulations, in respect of which it ordered an expert verification.

7.  By judgment no. 61 of 21 June 2012, the Regional Administrative Court found that the villas disregarded the minimum mandatory distance from the condominium building, and accordingly declared the building permit partially invalid.

8.  The condominium appealed to the Consiglio di Stato. The applicants did not present any submissions.

9.  By judgment no. 2397 of 20 April 2018, the Consiglio di Stato granted the appeal. It observed that the municipality had failed to verify whether the villas were connected to the public road, and that it had been ascertained by the civil courts that the applicants had no right of way over the path leading to the condominium’s property (see paragraph 17 below). Moreover, it had also been ascertained by the administrative and civil courts (see paragraph 19 below) that the villas did not comply with the minimum-distance requirement. Lastly, no detailed land-use plan had been adopted. The Consiglio di Stato thus quashed in its entirety the municipal’s decision to grant the building permit.

10.  By a judgment of 21 June 2019, the Consiglio di Stato rejected as inadmissible the extraordinary appeal for the revocation of judgment no. 2397 of 2018 lodged by the applicants.

11.  The condominium brought a new set of proceedings to obtain the enforcement of the final judgment, notably applying for the demolition of the applicants’ villas.

12.  In their written submissions, the applicants alleged inter alia that the villas were their only home, and that, rather than demolition, a fine could be imposed.

13.  By judgment no. 3270 of 22 April 2021, the Consiglio di Stato held that the building permit obtained by the applicants had been declared null and void by a final judgment. Therefore, the municipality was bound to order the demolition of the villas. No less severe measure could be imposed as the permit had been found to be in contravention of land-use regulations. Thus, its flaws could not be regularised (see paragraph 21 below).

The Consiglio di Stato further considered that the applicants’ interest in preserving their homes should be weighed against the interests of the condominium, whose judicial initiatives would be deprived of any effect if the applicants could avoid the demolition by paying a fine to the municipality. In any event, a fair balance was reached, given that the applicants could sue the municipality seeking compensation for the issuance of an unlawful building permit (risarcibilità degli interessi legittimi).

14.  On 11 June 2021 the municipality of La Thuile served the applicants with a demolition order of their villas. They challenged it before the Regional Administrative Court. The proceedings are still pending.

15.  In 2010 the applicants brought an action before the Aosta District Court seeking, among other things, that their right of way over the path connecting the villas to the condominium’s property be ascertained or established.

16.  By a judgment of 27 April 2013, the District Court established such right of way.

17.  On 4 March 2016 the Turin Court of Appeal, granting the appeal lodged by some co-owners of the condominium building, quashed the lower court’s judgment, finding that no right of way could be established in favour of the applicants.

18.  The applicants appealed on points of law. The proceedings are still pending.

19.  By a judgment of 6 February 2017, in a separate set of proceedings, the Turin Court of Appeal ascertained that the villas did not comply with distance regulations.

20.  An overview of the relevant legal framework concerning demolition orders of unauthorised constructions is to be found in Longo v. Italy ((dec.), no. 35780/18, §§ 20-22, 27 August 2024).

21.  According to the relevant domestic practice (notably, Consiglio di Stato’s plenary judgment no. 17 of 7 September 2020), a demolition order is the mandatory response when a building permit, originally issued by the municipality, is quashed by the administrative courts for its non-compliance with land-use regulations.

22.  The applicants complained under Article 8 of the Convention that the demolition of the villas would amount to a disproportionate interference with their right to a home, as the villas had been erected on a constructible area, the building permit was quashed for merely formal reasons and the municipality had failed to provide them with an alternative accommodation.

23.  The second, third and eight applicants (see paragraph 2 above) further relied on Article 1 of Protocol No. 1 to the Convention, alleging that they had relied on the validity of the building permit. However, if they fail to comply with the demolition order, the villas will be acquired without compensation by the municipality, which would deprive them also of the land on which the villas were erected, unjustifiably enriching the municipality.

THE COURT’S ASSESSMENT

24.  The Court observes at the outset that before the domestic courts the fact that the applicants have been living in the villas since their construction was not disputed. The villas are therefore to be considered their “home” and the demolition order amounts to an interference with their right to respect for that home (see Kaminskas v. Lithuania, no. 44817/18, § 44, 4 August 2020).

25.  In the instant case, the demolition was ordered pursuant to section 7 (3) of Law no. 47 of 28 February 1985.  The Court thus notes that the interference complained of was in accordance with the law and pursued the legitimate aim of ensuring the orderly and safe use of land in compliance with building regulations (see Longo, cited above, § 81, and the references therein).

26.  As to its proportionality, the relevant criteria for the assessment of the necessity of interferences resulting in the loss of one’s home can be found, inter alia, in Ivanova and Cherkezov v. Bulgaria (no. 46577/15, §§ 53 et seq., 21 April 2016).

27.  The Court notes that in its judgment no. 3270 of 22 April 2021 (see paragraph 13 above) the Consiglio di Stato engaged in the balancing exercise required under Article 8 of the Convention, examining all the competing interests. On the one hand, it considered that the building permit initially obtained by the applicants was tainted by several grounds of non-compliance with land-use regulations and that such non-compliance had been ascertained by a final judgment (see paragraph 9 above). This called for the adoption of the measure specifically intended at restoring a site to its original condition, i.e. the demolition order of the villas. On the other hand, it took into consideration that the applicants had relied on the validity of the building permit issued by the municipality and found that the frustration of their expectation on the legality of the constructions could be restored through an action for damages against the municipality.

28.  Additionally, it attached weight to the principle that a binding judicial decision cannot remain inoperative to the detriment of one party, in this case the condominium. In this connection, the Court recalls its case-law in which the non-enforcement of a decision quashing a building permit was found to be in breach of Article 6 § 1 of the Convention (see Kyrtatos v. Greece, no. 41666/98, § 30, ECHR 2003-VI (extracts)).

29.  As to the possibility of adopting less severe measures, the Consiglio di Stato excluded this possibility, finding that the grounds invalidating the building permit were so serious as to prevent their regularisation through the payment of a fine.

30.  Vis-à-vis such considerations, the Court is unable to find in the applicants’ appeals to the Consiglio di Stato any submissions of individual circumstances (such as a need for alternative housing, other special needs, their financial situation, or a possible condition of vulnerability) to be weighed against the general interest and capable of showing that the demolition of the villas without any accompanying measures would disproportionately affect them (see Ghailan and Others v. Spain, no. 36366/14, § 76, 23 March 2021).

31.  In the light of the foregoing, the Court is satisfied that the domestic proceedings met the procedural requirements set out in the Court’s case-law (see Ivanova and Cherkezov, cited above, § 53) and that the domestic authorities did not exceed their margin of appreciation in finding that the demolition order of the applicant’s villas should be upheld (see Szczypiński v. Poland (dec.), no. 67607/17, §§ 66 and 72, 18 January 2022).

32.  It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

33.  The Court finds that the interference complained of, that is the demolition order, amounts to a control of use of property, to be examined under the second paragraph of Article 1 of Protocol No. 1 (see Ivanova and Cherkezov, cited above, § 69, with further references). It further observes that the demolition order was issued pursuant to Article 31 of Presidential Decree no. 380 of 6 June 2001. The interference was therefore in accordance with the law.

34.  The Court reiterates that the purpose of a demolition order is to restore the site to its original condition, thereby ensuring the orderly and safe use of land in compliance with building regulations (see Longo, cited above, § 81). It therefore has no doubt as to the legitimacy of the aim pursued by the contested measure, which is clearly “in accordance with the general interest” (see Saliba v. Malta, no. 4251/02, § 44, 8 November 2005, and Ivanova and Cherkezov, cited above, § 71).

35.  As to whether the aim sought can be considered proportionate to the interference caused to the applicants, the Court reiterates that in the field of building and town planning regulations, the State enjoys a wide margin of appreciation, in particular in choosing the means of enforcement and in ascertaining whether the consequences of enforcement would be justified (see Saliba, § 45, and Ivanova and Cherkezov, § 73, both cited above).

36.  In this regard, the Court observes that the Consiglio di Stato found that no less severe measure than demolition could be imposed on the applicants as the building permit had been in contravention of land-use regulations (see paragraph 13 above). Indeed, it is not disputed that the applicant’s villas had been erected on the basis of a building permit found to be in violation of several land-use regulations (see paragraph 9 above). Thus, the effect of ordering the demolition of an unlawful construction is to put things back in the position they would have been in, had the requirements of the law not been disregarded. In this manner, the authorities guarantee a full protection of the environment as well as deterring other potential offenders (see, mutatis mutandis, Saliba, cited above, § 46).

37.  The above considerations are sufficient for the Court to find that the measure complained of was not disproportionate to the legitimate aim pursued. The fact that the applicants initially could rely on a building permit, found to be unlawful in domestic litigation, cannot change this conclusion. To hold otherwise would be tantamount to oblige the domestic authorities to tolerate unlawful constructions each time an individual obtains from municipalities a permit, even if this is non-compliant with land-use regulations (see, mutatis mutandis, Saliba, § 47). This also leads the Court to the conclusion that, in the present circumstances, the enforcement of the demolition order issued in respect of the applicants’ villas did not place an excessive burden on them in breach of their rights under Article 1 of Protocol No. 1.

38.  The Court would add that the applicants obtained the building permit for the construction of the villas in July 2010 and that soon after its issuance, beginning of 2011, the condominium challenged it before the administrative courts. This must have alerted the applicants as to its validity, in particular as the permit was challenged on multiple grounds (see paragraph 4 above). In this respect, the Court observes that already shortly thereafter, in March 2011, the Regional Administrative Court ordered an expert verification whether the distance regulations had been complied with (see paragraph 6 above). Due diligence on the part of the applicants would have led them to pause any construction ongoing at that time to await the final outcome of the proceedings.

39.  The Court would also add that the Consiglio di Stato expressly stated that the applicants could bring an action for compensation against the municipality for having created the situation which led to the demolition order of their villas (see paragraph 13 above; compare Zela v. Albania, no. 33164/11, § 97, 11 June 2024; on the possibility to obtain compensation for breaches of “legitimate interests”, see Traina Berto and Others v. Italy (dec.), no. 75505/12, §§ 27-29, 8 March 2022). In this respect, it notes that the applicants did not invoke, neither at the domestic level nor before the Court, any reason why it would be impossible for them to pursue such action. Consequently, this avenue remains open to the applicants.

40.  Considering the above, the Court finds that, in the present circumstances, the enforcement of the demolition order issued in respect of the applicants’ villas has not been shown to place an excessive burden on them in breach of their rights under Article 1 of Protocol No. 1.

41.  It follows that this 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 22 May 2025.

 Liv Tigerstedt Erik Wennerström
 Deputy Registrar President

Appendix

List of applicants:

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

1.

Adelaide CERMENATI

1974

Italian

La Thuile

2.

Alessandro BANDITO

1971

Italian

La Thuile

3.

Carlo Augusto Francesco CEFFA

1973

Italian

La Thuile

4.

Stefania GIARDI

1968

Italian

La Thuile

5.

Maria Grazia MENEGHELLI

1940

Italian

La Thuile

6.

Manuela PERONI

1976

Italian

La Thuile

7.

Kristian RAFFAELLI

1997

Italian

La Thuile

8.

Stefano RAFFAELLI

1962

Italian

La Thuile

9.

Vittorio RAFFAELLI

1939

Italian

La Thuile