FALGEST S.R.L. AND GIRONDA v. ITALY

SECOND SECTION

DECISION

Application no. 19029/11
FALGEST S.R.L. and Others
against Italy

The European Court of Human Rights (Second Section), sitting on 30 April 2013 as a Chamber composed of:

Danutė Jočienė, President,
Guido Raimondi,
Peer Lorenzen,
András Sajó,
Işıl Karakaş,
Nebojša Vučinić,
Helen Keller, Judges,
and Stanley Naismith, Section Registrar,

Having regard to the above application lodged on 23 March 2011,

Having deliberated, decides as follows:

THE FACTS

1. The applicants are as follows:

(a) the company Falgest S.r.l.;

(b) Filippo Gironda, born in 1959;

(c) Giovanni Falduto, born in 1939, director of Falgest S.r.l.;

(d) Paolo Falduto, born in 1945, signatory of the construction project;

(e) Giuseppe Falduto, born in 1956, signatory of the construction project;

(f) Antonella Paviglianiti, born in 1968, director of works;

(g) Franco Gattuso, born in 1964, director of works.

They were represented before the Court by Mr A.G. Lana and Mr A. Saccucci, lawyers practising in Rome.

A. The circumstances of the case

2. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Site development plan

3. The applicant company Falgest S.r.l. and the applicant Filippo Gironda were the co-owners, each with a 50% interest, of a plot of land at Testa di Cane and Fiumarella di Pellaro (Reggio di Calabria). The land-use plan provided solely for the possibility of building hotel-type residences for tourists on that land.

4. On 12 October 1994 the two applicants in question applied for a building permit to erect a tourist residence consisting of 42 houses and sports facilities.

5. On 15 September 1997 the municipality of Reggio di Calabria issued the building permit.

6. After verification by the municipality, a number of variations from the plan were noted. The municipality ordered the suspension of the work on 26 January 1998.

7. On 29 January 1998 the two applicants filed an amended plan (variante in corso d’opera), which provided for fewer houses (40 instead of 42) and restricted the construction area. This amended plan sought to validate the work as carried out, within the meaning of Law no. 47/1985.

8. On 10 February 1998 the Mayor of Reggio di Calabria cancelled the order suspending the work on the ground that the discrepancies in relation to the initial construction project could be validated by means of the amended plan submitted in respect of ongoing work under section 15 of Law no. 47/1985.

9. On 1 October 1998 the inspector of the municipality of Reggio di Calabria noted that the work was in conformity with the amended plan. The work was pursued.

2. Criminal proceedings

10. In 2002 the public prosecutor of Reggio di Calabria opened an investigation in respect of six of the applicants listed in paragraph 1 above (under (b), (c), (d), (e), (f) and (g)). They were suspected of committing a number of offences, in particular that of unlawful site development within the meaning of section 20 of Law no. 47/1985.

11. In a judgment of 22 January 2007 the District Court of Reggio di Calabria acquitted the applicants on the merits (perché il fatto non sussiste) in respect of all the charges, except for the offence of unlawful site development, which was declared time-barred. The court noted that the project had provided for the construction of residences for hotel-type tourist accommodation. However, the structural specifications of the buildings (caratteristiche strutturali) and the evidence suggested that the real purpose of the project was the sale of houses to individuals, thus casting doubt on the intended hotel-type tourist use, and this change of purpose rendered the site development unlawful. In conclusion, the court ordered the confiscation of the land and buildings belonging to the applicants listed in (a) and (b) and the transfer of this property to the municipality of Reggio di Calabria under section 19 of Law no. 47 of 1985.

12. In a judgment of 28 April 2009 the Reggio di Calabria Court of Appeal acquitted the applicants on the merits (perché il fatto non sussiste) in respect of all the offences, including that of unlawful site development. It revoked the confiscation of the property and ordered its return to the owners.

The Court of Appeal took the view, in particular, that the approved project was compatible with the land-use plan and building regulations. Given that there had been no preliminary or final contract of sale, there was no evidence of any change in the purpose of the constructions and therefore no unlawful development.

13. In a judgment of 22 April 2010, deposited in the registry on 27 September 2010, the Court of Cassation quashed the judgment of the Court of Appeal without remitting it. It found that the change in purpose of the constructions was proven by statements made by third parties and by documents in the file. The offence of unlawful site development (the offence which was time-barred) had thus been made out. Consequently, the property in question was again subject to the confiscation order made at first instance by the District Court of Reggio di Calabria.

B. Relevant domestic law and practice

14. The relevant domestic law and practice is set out in the Court’s judgment in Sud Fondi S.r.l. and Others v. Italy (no. 75909/01, §§ 49-52 and 59-66, 20 January 2009).

COMPLAINTS

15. Relying on Article 7 of the Convention and Article 1 of Protocol No. 1, the applicants complained about the application in the present case of the confiscation measure under section 19 of Law no. 47 of 1985.

16. The applicant company Falgest S.r.l. complained about its inability to challenge the confiscation. It alleged that there had been a violation of Article 13 of the Convention.

17. Relying on Article 6 § 1 of the Convention and Article 2 of Protocol No. 7, the applicants complained that the criminal proceedings had been unfair and that the Court of Appeal’s judgment had been quashed by the Court of Cassation.

18. The applicants complained, lastly, that the principle of the presumption of innocence had been disregarded and that there had thus been a violation of Article 6 § 2 of the Convention.

THE LAW

A. Complaints under Article 7 of the Convention and Article 1 of Protocol No. 1

19. Relying on Article 7 of the Convention and Article 1 of Protocol No. 1, all the applicants complained about the application to the present case of the confiscation provided for by section 19 of Law no. 47 of 1985.

20. The Court must first examine the question whether the applicants may claim to be victims of the alleged violation within the meaning of Article 34 of the Convention.

21. In this connection, the Court notes that the impugned confiscation affected property belonging to the applicant company Falgest S.r.l. and to the applicant Filippo Gironda. Both those applicants have standing to act before the Court.

22. As to the other applicants, the Court, with reference to its case-law (see Agrotexim and Others v. Greece, 24 October 1995, § 66, Series A no. 330-A; Sud Fondi S.r.l. and Others v. Italy (dec), no. 75909/01, 23 September 2004; and Hotel Promotion Bureau S.r.l. and Others v. Italy (dec.), no. 34163/07, 5 June 2012), takes the view that they do not have standing to act before the Court. It follows that – except in respect of the applicants Falgest S.r.l. and Filippo Gironda – this part of the application is incompatible ratione personae with the provisions of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.

23. As regards the applicants Falgest S.r.l. and Filippo Gironda, the Court observes that they relied on Article 7 of the Convention and Article 1 of Protocol No. 1. Article 7 of the Convention reads as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

Article 1 of Protocol No. 1 reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

24. As the case stands at present, the Court does not consider itself to be in a position to rule on the admissibility of these complaints and finds it necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b) of the Rules of Court.

B. Complaint under Article 13 of the Convention

25. The applicant company Falgest S.r.l. complained about its inability to challenge the confiscation measure. It alleged that there had been a violation of Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

26. As the case stands at present, the Court does not consider itself to be in a position to rule on the admissibility of this complaint and finds it necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b) of the Rules of Court.

C. Complaints under Article 6 § 1 of the Convention and Article 2 of Protocol No. 7

27. All the applicants complained of a lack of fairness in the proceedings. They further complained about the quashing of the Court of Appeal’s judgment by the Court of Cassation. They relied on Article 6 of the Convention, of which the relevant part reads as follows:

“... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”

Article 2 of Protocol No. 7 provides:

“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.

2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”

28. The Court must first examine the question whether the applicants may claim to be victims of the alleged violation, within the meaning of Article 34 of the Convention. In that connection it notes that the proceedings at issue did not concern Falgest S.r.l. Consequently, that applicant cannot be regarded as a victim of the alleged violation. It follows that this part of the application is, in respect of the applicant company, incompatible ratione personae with the provisions of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.

29. As to the six applicants against whom the criminal proceedings were brought, the Court notes that either the proceedings resulted in acquittal or the offences in question became time barred. In those circumstances, the Court is of the view that any defects which may have vitiated the criminal proceedings against them must be regarded as having been remedied by the acquittal or discontinuance decisions (see Gil Leal Pereira v. Portugal (dec.), no. 48956/99, 19 September 2000; Mignon v. Belgium (dec), no. 20022/09, 5 June 2012; and Hotel Promotion Bureau S.r.l. and Others v. Italy (dec.), cited above). It follows that the above-mentioned applicants cannot claim to be victims of a violation of the provisions relied upon, within the meaning of Article 34 of the Convention. That part of the application is therefore manifestly ill-founded under Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

D. Complaint under Article 6 § 2 of the Convention

30. The applicants lastly complained that the confiscation of their property had breached their right to be presumed innocent, as provided for in Article 6 § 2 of the Convention, which reads:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

31. The Court notes that the only applicant against whom the criminal proceedings were brought and who was also a co-owner of the confiscated property is Filippo Gironda. This applicant therefore has standing to act before the Court within the meaning of Article 34 of the Convention.

As the case stands at present, the Court does not consider itself to be in a position to rule on the admissibility of this complaint and finds it necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b) of the Rules of Court.

32. As to the other applicants, they cannot be regarded as having standing to act before the Court. It follows that this part of the application is, in respect of those applicants, incompatible ratione personae with the provisions of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to adjourn the examination of the applicants’ complaints under Article 7 of the Convention and Article 1 of Protocol No. 1 in so far as those complaints were raised by the first two applicants;

Decides to adjourn the examination of the complaint under Article 13 of the Convention in so far as that complaint was raised by the first applicant;

Decides to adjourn the examination of the complaint under Article 6 § 2 of the Convention in so far as that complaint was raised by the second applicant;

Declares the remainder of the application inadmissible.

              Stanley NaismithDanutė Jočienė
RegistrarPresident

Full & Egal Universal Law Academy