Published on 22 July 2024
FIRST SECTION
Application no. 42100/18
Emilia DECINI against Italy
and 2 other applications
(see list appended)
communicated on 3 July 2024
SUBJECT MATTER OF THE CASE
The applicants’ details are summarised in the appended table.
The applications concern the impending demolition of the applicants’ homes and, in particular, the issue whether such a demolition is “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention.
On various dates the applicants purchased the apartments located in a building erected by a company. The company had obtained by the municipality the required building permits, but it had also carried out works in partial contravention of permit. In respect of such works it had applied for a building amnesty (condono edilizio).
In 2008 the municipality set aside the building permits, lacking the conditions for their issuance, and in 2013 it also denied the amnesty.
On 25 November 2015 the municipality served the applicants with a notice ordering the demolition of the apartments they had purchased, since they were to be considered as unauthorised constructions.
The applicants brought action before the administrative courts, alleging (among other things) that the apartments were their only homes, and that their demolition would impose a disproportionate burden on them.
The Regional Administrative Court, upheld by the Consiglio di Stato, dismissed the applicants’ claim, focusing on the fact that the building in which the apartments were located was an unauthorised construction. The Consiglio di Stato further observed that the applicants failed to appeal against the municipality’s denial of amnesty and that, contrary to the applicants’ declarations for the purpose of amnesty, the construction had been erected after the relevant date established by the law to benefit of the building amnesty. The relevant domestic decisions are detailed in the appended table.
Relying on Article 8 of the Convention, the applicants complain of the domestic courts’ failure to assess the proportionality of the demolition of their homes in the light of their specific situation. In this connection, they further allege that the demolition of the apartments in which they have been living would constitute a disproportionate interference with their right to respect for their home.
Lastly, the applicants allege a violation of Article 6 § 1 of the Convention, arguing that they had a legitimate expectation on the lawfulness of the building, given that they had purchased the apartments in good faith and that the issuance of building permits was mentioned in the notary deeds.
QUESTIONS TO THE PARTIES
Has there been an interference with the applicants’ right to respect for their home, within the meaning of Article 8 § 1 of the Convention (see, inter alia, Kaminskas v. Lithuania, no. 44817/18, § 45, 4 August 2020)?
a) If so, is the impeding demolition of the applicants’ only home “necessary in a democratic society” within the meaning of Article 8 § 2 (see Ivanova and Cherkezov v. Bulgaria, no. 46577/15, §§ 52-61, 21 April 2016; Ghailan and Others v. Spain, no. 36366/14, §§ 62-64, March 2021, and Simonova v. Bulgaria, no. 30782/16, § 52, 11 April 2023)?
b) Did the domestic authorities carry out an adequate assessment of the necessity and proportionality of the demolition (see Ivanova and Cherkezov, cited above, § 53; Simonova, cited above, § 51, and Alif Ahmadov and Others v. Azerbaijan, no. 22619/14, § 61, 4 May 2023)?
APPENDIX
List of applications:
No.
Application no.
Case name
Introduction date
Applicant’s name
Year of birth
Place of residence
Nationality
Representative’s name
Location
Domestic proceedings
1.
42100/18
Decini v. Italy
23/08/2018
Emilia DECINI
1977
Mentana
Italian
Giorgio ANTONICELLI
Rome
Regional Administrative Court
R.G. no. 3239/2016
Judgment no. 8976 of 2 August 2016
Consiglio di Stato
R.G. no. 2165/2017
Judgment no. 1795 of 20 March 2018
2.
42104/18
Baele and Sorge v. Italy
23/08/2018
Sergio BAELE
1965
Fonte Nuova
Italian
Stefania SORGE
1980
Fonte Nuova
Italian
Giorgio ANTONICELLI
Rome
Regional Administrative Court
R.G. no. 2050/2016
Judgment no. 7262 of 22 June 2016
Consiglio di Stato
R.G. no. 9397/2016
Judgment no. 1792 of 20 March 2018
3.
42298/18
Modesti v. Italy
23/08/2018
Giuseppina MODESTI
1962
Fonte Nuova
Italian
Giorgio ANTONICELLI
Rome
Regional Administrative Court
R.G. no. 2051/2016
Judgment no. 7264 of 22 June 2016
Consiglio di Stato
R.G. no. 8395/2016
Judgment no. 1791 of 20 March 2018