SECOND SECTION
DECISION
Application no. 34163/07
HOTEL PROMOTION BUREAU S.R.L and Others
against Italy
The European Court of Human Rights (Second Section), sitting on 5 June 2012 as a Chamber composed of:
Françoise Tulkens, President,
Dragoljub Popović,
Isabelle Berro-Lefèvre,
András Sajó,
Guido Raimondi,
Paulo Pinto de Albuquerque,
Helen Keller, Judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 2 August 2007,
Having deliberated, decides as follows:
THE FACTS
1. The applicants are:
(a) The companies in liquidation Hotel Promotion Bureau s.r.l. (hereinafter “HPB s.r.l.”) and RITA Sarda s.r.l.
(b) Marsino Cieri, director of the first applicant company and partner in the second, and Luca Cieri, partner in the second applicant company. They are both Italian nationals and were born in 1963 and 1965 respectively.
Before the Court they were represented by Mr G. Lavitola, a lawyer practising in Rome, who was appointed by the liquidator of the two applicant companies and by the other applicants in their own names.
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 RITA Sarda s.r.l. was the owner of constructible land with a surface area of 33 hectares at Golfo Aranci.
4. Under the municipal development programme (programma comunale di fabbricazione) for Golfo Aranci, approved on 21 December 1981, the land in question belonged to zone F – a tourist zone – and was suitable for building within a given volume. It was possible to exceed that volume in the context of hotel or quasi-hotel development.
5. Wishing to build a hotel-type residence for tourists with a number of accommodation units (produttiva alberghiera), RITA Sarda s.r.l. submitted a site development plan (piano di lottizzazione) to the authorities.
6. On 27 March 1991 the Sardinia Region issued its nulla osta approval for building at a minimum distance of 150 metres from the sea, provided that once erected the buildings would actually be used for tourist accommodation. That obligation had to be recorded in the land register.
7. On 29 November 1991 the Sardinia Region granted the land development permit (paesaggistica) under Law no. 431/1985 and section 7 of Law no. 497/1939.
8. The municipality of Golfo Aranci approved the site development plan with final effect on 17 December 1991.
9. On 22 April 1992, in accordance with the regional nulla osta approval, the municipality of Golfo Aranci authorised the mayor to issue a derogating building permit allowing a greater construction volume than that provided for by its municipal development programme, for the purposes of a quasi-hotel structure (opere alberghiere ricettive). The file shows that the site development plan concerned an area of 330,026 square metres.
10. On 17 July 1992 the Sardinia Region issued its final nulla osta approval of the plan.
11. On 22 June 1992 Regional Law no. 11/1992 entered into force. It removed the possibility of derogating from the prohibition on building near the sea and fixed the minimum distance at 2 kilometres for dwellings and 500 metres for hotels. As regards buildings intended for quasi-hotel use, such as the hotel-type residences for tourists in the present case, they were to be treated as dwellings. The minimum distance of 2 kilometres thus had to be maintained, except in the cases where, before 17 November 1989, the site development agreement had been executed and the infrastructure work had already begun.
12. On 13 August 1992 the Mayor of Golfo Aranci and RITA Sarda s.r.l. entered into a site development agreement. Under Article 10 thereof, for a period of twenty years the buildings erected on the site would continue to be used for tourist-hotel purposes and could not be sold off in separate units.
13. On 31 August 1992 the municipality of Golfo Aranci issued a building permit for the site infrastructure (urbanizzazione primaria). On 23 November 1992 the municipality issued the main building permit.
14. At an unknown date, RITA Sarda s.r.l. entered into an agreement with HPB s.r.l. under which the latter undertook to carry out the construction work and subsequently to purchase the land.
15. The work began in 1993. Four years later, eighty-eight flats, less than one third of the total number, had been built. A number of them had been sold to individuals, subject to a clause stipulating that the property had to remain assigned, for a number of years, to tourist-hotel use. HPB s.r.l. had signed agreements with travel agents for the purpose of renting out the flats on a weekly basis.
16. On 22 October 1997 RITA Sarda s.r.l. sold to HPB s.r.l. 36,859 square metres of land and the buildings known as “C2”, namely sixteen flats for residential-tourist use. In addition to the buildings RITA Sarda s.r.l. assigned the construction rights to HPB s.r.l. The price of the transaction was fixed at 3,718,489.67 euros (EUR), equivalent to 7,200,000,000 Italian lira (ITL).
17. In November 1997 RITA Sarda s.r.l. was the owner of sixteen flats and the plots of land covered by the site development plan, with the exception of plot 644 and those previously sold to HPB s.r.l., which was the owner of the land it had purchased and of sixteen flats, as mentioned above.
2. Criminal proceedings
18. In 1997 the public prosecutor of Olbia opened a criminal investigation in respect of Marsino and Luca Cieri. They were suspected of a number of offences, including that of unlawful site development within the meaning of Law no. 47/1985 (section 20) for building too close to the sea and without planning permission.
19. On 20 November 1997 a court order restraining disposal of property was imposed on the land and buildings erected thereon.
20. In a judgment of 31 March 2003 the Olbia District Court acquitted the applicants on the merits in respect of all the offences, with the exception of that of unlawful site development, those charges being declared time-barred.
Having regard to the entry into force of Regional Law no. 11 of 1992 and the new minimum distance from the sea introduced therein, the District Court took the view that the municipality of Golfo Aranci should never have issued the building permits and that the previously issued authorisations could not legitimise the situation. The building permits were thus in breach of the law or, at least, without effect (inefficaci). The constructions were thus incompatible with the statutory provisions and the offence of unlawful site development was made out. In addition, the sale of the flats to individuals cast doubt on their continued use for tourist-hotel purposes and this change of purpose also placed the site development in breach of the law. In conclusion, the District Court ordered the confiscation of the property previously seized under a restraining order and the transfer of ownership to the municipality of Golfo Aranci within the meaning of section 19 of Law no. 47 of 1985.
21. In a judgment of 11 October 2004 the Cagliari Court of Appeal upheld the finding that one offence was time-barred (non doversi procedere) and reiterated that the municipality of Golfo Aranci should not have issued the building permits, which were illegal and in any event without effect. The constructions erected were de facto incompatible with the regional legislation prohibiting them. In addition, between March 1995 and November 1997 most of the flats had been sold off, thus changing their intended use.
22. The applicants appealed on points of law but their appeal was dismissed by the Court of Cassation in a judgment of 15 February 2007.
B. Relevant domestic law and practice
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
24. 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.
25. Relying on Article 6 of the Convention, they complained about the lack of fairness in the criminal proceedings.
26. Relying on Article 13 of the Convention, they complained about their inability under Italian law to apply directly to the Constitutional Court in order to challenge legislation.
THE LAW
A. Complaints under Article 7 of the Convention and Article 1 of Protocol No. 1
27. All the applicants complained about the confiscation of their property, as ordered by the domestic courts in accordance with section 19 of Law no. 47 of 1985. They alleged that there had been a violation of Article 7 of the Convention and of Article 1 of Protocol No. 1.
28. The Court first has to examine the question whether the applicants can claim to be victims of the alleged violation within the meaning of Article 34 of the Convention.
29. The Court notes that the impugned confiscation measure concerned the property belonging to the applicant companies RITA Sarda S.r.l. and HPB S.r.l. Those two companies have standing to appear before the Court.
30. As to the other two applicants, the Court notes that the two companies in question were represented in the domestic proceedings by their respective directors or partners, namely Marsino Cieri and Luca Cieri. The Court is of the view that a member of a company cannot act directly before it to complain of a violation directly affecting the company where one of the company’s decision-making bodies is able to act on its behalf. In this connection it reiterates that it will be justified to disregard a company’s legal personality only in exceptional circumstances, in particular where it is clearly established that it is impossible for the company to apply to the Court through its usual decision-making bodies or – if in liquidation – through its liquidators (see Agrotexim and Others v. Greece, 24 October 1995, § 66, Series A no. 330, and Sud Fondi S.r.l. and Others v. Italy (dec.), no. 75909/01, 23 September 2004).
31. In the present case the Court is of the opinion that those other applicants cannot be regarded as having standing before the Court. It follows that – except for the applicant companies RITA Sarda s.r.l. and HPB s.r.l. –, 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.
32. The two applicant companies, as mentioned above, relied on Article 7 of the Convention and Article 1 of Protocol No. 1. Article 7 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 provides:
“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.”
33. As the case currently stands, the Court does not consider itself able 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).
B. Complaints under Articles 6 and 13 of the Convention
34. All the applicants complained about a lack of fairness in the domestic proceedings and of their inability to apply directly to the Constitutional Court in order to challenge legislation. They relied on Articles 6 and 13 of the Convention.
The relevant parts of Article 6 read as follows:
“... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
Article 13 reads:
“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.”
35. The Court must first examine the question whether the applicants could claim to be the victims of the alleged violation within the meaning of Article 34 of the Convention.
In this connection the Court notes that the impugned proceedings concerned only Luca and Marsino Cieri.
36. Consequently, all the other applicants cannot be regarded as having standing before it. It follows that this part of the application is, in respect of the other applicants, incompatible ratione personae with the provisions of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.
37. The Court notes that the two applicants who had been prosecuted complained about the lack of fairness in the criminal proceedings against them. It observes that the proceedings were ultimately discontinued (non doversi procedere) on account of being time-barred. In those circumstances the Court is of the view that any defects which might have vitiated the proceedings against these applicants should be regarded as having been cured by their discontinuance (see Contarino v. Italy (dec.), no. 46383/99, 24 October 2000; Bouriau v. France (dec.), no. 39523/98, 9 September 1998; and Gil Leal Pereira v. Portugal (dec.), no. 48956/99, 19 September 2000).
38. It follows that the applicants in question cannot claim to be victims of a violation of the provision relied upon, within the meaning of Article 34 of the Convention. This part of the application is therefore manifestly ill-founded under Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.
39. The same considerations also apply to the complaint under Article 13 of the Convention. In addition, the Court observes that this Article does not go so far as to guarantee a remedy allowing a Contracting State’s laws as such to be challenged before a national authority (see Gustafsson v. Sweden, 25 April 1996, § 70, Reports of Judgments and Decisions 1996‑II). This complaint is thus incompatible ratione materiae with the provisions of the Convention. In conclusion, it must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to adjourn the examination of the applicants’ complaints concerning Article 7 of the Convention and Article 1 of Protocol No. 1 in so far as those complaints have been raised by the two applicant companies;
Declares the remainder of the application inadmissible.
Françoise Elens-PassosFrançoise Tulkens
Deputy RegistrarPresident
Full & Egal Universal Law Academy