FIRST SECTION
DECISION
Application no. 52473/07
CONSORCASA REGIONE LAZIO SOCIETA’ COOPERATIVA EDILIZIA S.C.A.R.L. and Others
against Italy
The European Court of Human Rights (First Section), sitting on 21 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. 52473/07) 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 22 November 2007 by the applicants listed in the appended table (“the applicants”) who were represented by Mr A. Pallottino, a lawyer practising in Rome;
the decision to give notice of the application to the Italian Government (“the Government”), represented by their former co-Agent, Mrs P. Accardo;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the occupation of the applicants’ land and the subsequent award of compensation based on the criteria established by section 5 bis of Law no. 359 of 8 August 1992 (“Law no. 359/1992”).
2. The applicants were the joint owners of plots of land located in Rome.
3. By five decrees, adopted between 1983 and 1991, the Rome Municipality was authorised to occupy portions of the applicants’ land with a view to their subsequent expropriation for the construction of social housing.
4. On 8 October 1994 the applicants brought proceedings before the Rome Court of Appeal, seeking compensation for the occupation of the land until the date of loss of ownership (indennità di occupazione).
5. On 30 April 1996 a formal expropriation order was issued in respect of the land.
6. The Court of Appeal appointed an expert for the determination of compensation for the occupation of the applicants’ land. The expert determined the land’s market value at 37,537,420,060 Italian lire (ITL), or 19,386,460 euros (EUR). Nevertheless, she held that compensation had to be based on a lower value to be determined pursuant to the criteria laid down in section 5 bis of Law no. 359/1992.
7. By a judgment of 17 November 2003, the Court of Appeal held that the applicants were entitled to compensation for the period during which the land had been occupied before the expropriation order had been issued. Drawing on the findings contained in the expert report and, in particular, on the lower value determined pursuant to section 5 bis of Law no. 359/1992, the court held that such compensation amounted to ITL 6,115,234,518 (EUR 3,158,255.06).
8. The compensation thus awarded was paid in instalments between 2007 and 2008. In accordance with Law no. 413 of 1991, tax had been deducted at a rate of 20% from the sum paid to the sixth applicant.
9. The Rome Municipality appealed to the Court of Cassation. The applicants did not lodge an appeal but, in the course of the cassation proceedings, they pointed out that the question of the constitutionality of section 5 bis of Law no. 359/1992 had been brought to the attention of the Constitutional Court.
10. By a judgment of 29 May 2007 the Court of Cassation upheld the Court of Appeal’s judgment. As regards the applicants’ remark, it held that the question was irrelevant as, in the absence of any appeal on their part, it could not in any event overturn the appeal court’s judgment in their favour.
11. Meanwhile, the applicants had instituted separate proceedings concerning compensation for the expropriation, which resulted in the payment of around EUR 27 million.
12. The applicants complained under Article 1 of Protocol No. 1 to the Convention of a disproportionate interference with their property rights on account of the allegedly inadequate amount of compensation they had received for the occupation of their land. The sixth applicant complained, under the same Article, that the imposition of the 20% tax further reduced the adequacy of the amount awarded at the domestic level.
THE COURT’S ASSESSMENT
13. The Court takes note of the division of Immobiliare Tuscolana 1976 s.r.l. into two new companies in 2015. The new companies, Admaiora Prima s.r.l. and Odran s.r.l., expressed the wish to pursue the proceedings before the Court. The Court further takes note of the change of name of Fiore di Verbena s.r.l. into ISAAC Investimenti e Servizi per Architettura e Costruzioni s.r.l. in 2014. The Government objected to the standing of Admaiora Prima s.r.l., Odran s.r.l. and ISAAC Investimenti e Servizi per Architettura e Costruzioni s.r.l. The Court does not consider it necessary to examine these issues, because the application is in any event inadmissible for the following reasons.
14. The relevant domestic law and practice relating to the occupation of land have been summarised in Scordino v. Italy (no. 1) ([GC], no. 36813/97, §§ 56-61, ECHR 2006-V) and Chinnici v. Italy (no. 2) (no. 22432/03, §§ 23‑24, 14 April 2015).
15. The Government argued that the application was submitted out of time. In particular, they maintained that it should have been filed within six months from the time-limit for filing an appeal against the judgment of the Rome Court of Appeal of 17 November 2003, which according to their calculations expired on 31 March 2004.
16. The applicants argued that, since the municipality had appealed against the judgment of the Court of Appeal to the Court of Cassation, that judgment could not be considered final for the purposes of the Convention. Furthermore, the applicants pointed out that they had chosen not to appeal to the Court of Cassation because it was not an effective remedy.
17. The Court recalls that the requirements contained in Article 35 § 1 concerning the exhaustion of domestic remedies and the six-month period[1] are closely interrelated. Thus, where no effective remedy is available to an applicant, the time-limit expires six months after the date of the acts or measures about which he or she complains. The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six-month rule (see for example Jeronovičs v. Latvia [GC], no. 44898/10, § 75, 5 July 2016).
18. The Court notes that, in the present case, the applicants did not appeal against the Court of Appeal’s judgment of 17 November 2003 to the Court of Cassation, as they considered that it was not an effective remedy (see paragraphs 9 and 16 above).
19. If the applicants were indeed convinced that an appeal to the Court of Cassation was not an effective remedy, they should have brought their complaint to the Court within six months from the Court of Appeal’s judgment. However, they did not do so as they argued that, due to the municipality’s appeal, the decision had not become final.
20. In this respect, the Court observes that, as also submitted by the Government, it is a well-established principle of domestic law that an appeal judgment may not exceed the grounds of appeal raised by the parties. Therefore, in the absence of an appeal on the applicants’ part, the Court of Cassation could not overturn the judgment in their favour. It follows that, after the expiry of the deadline for appealing against the judgment of the Court of Appeal, the applicants could not have expected to obtain an amount higher than the one already awarded.
21. The Court therefore considers that, in respect of the applicants’ complaint concerning the allegedly insufficient amount of compensation awarded for the occupation of the land, the six-month time-limit started to run, at the latest, when the deadline for appealing against the Court of Appeal’s judgment to the Court of Cassation expired in the beginning of 2004.
22. Since the present application was lodged on 22 November 2007, the Court concludes that the complaint has been lodged out of time and must be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention.
23. As regards the additional complaint raised by the sixth applicant concerning the imposition of a 20% tax on her part of the compensation, and bearing in mind the relevant case-law on the matter and the conclusions drawn by the Court in cases concerning the same tax measure as the one at issue in the present case (see, in particular, Guiso and Consiglio v. Italy (dec.), no. 50821/06, § 39, 16 January 2018), and further taking into account the wide margin of appreciation which States have in taxation matters, the Court considers that the tax levied on the compensation awarded to the sixth applicant did not upset the balance which must be struck between the protection of her rights and the public interest in securing the payment of taxes.
24. Accordingly, 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 14 December 2023.
Liv Tigerstedt Péter Paczolay
Deputy Registrar President
Appendix
List of applicants:
No.
Applicant’s Name
Year of birth/registration
Place of residence/registration
1.
CONSORCASA REGIONE LAZIO SOCIETA’ COOPERATIVA EDILIZIA S.C.A.R.L.
1984
Rome
2.
PAO.MAR S.R.L.
1981
Rome
3.
EDILIZIA RESIDENZIALE NOMENTANA S.R.L.
Rome
4.
FIORE DI VERBENA S.R.L.
renamed ISAAC – Investimenti e Servizi per Architettura e Costruzioni s.r.l.
1989
Rome
5.
IMMOBILIARE TUSCOLANA 1976 S.R.L.
Successors:
ADMAIORA PRIMA S.R.L.
ODRAN S.R.L.
1976
Rome
6.
Emma NATILI
1929
Rome
[1] The time-limit set by Article 35 § 1 of the Convention has been reduced to four months as of 1 February 2022 in accordance with Protocol No. 15 to the Convention. Nevertheless, the six-month time-limit remains applicable in the present case.
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