Information Note on the Court’s case-law No. 75
May 2005
Pasculli v. Italy - 36818/97
Judgment 17.5.2005 [Section IV]
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Deprivation of property
Deprivation of property by applying the principle of indirect expropriation: violation
Facts: The applicant owned land in respect of which an expedited possession order was made by the administrative authorities for the purpose of constructing a public building. The authorities were to issue an expropriation order within the authorised period of possession, namely five years. On the expiry of the period, however, the authorities had neither formalised the expropriation nor paid any compensation. The applicant complained of this in the courts. An expert assessment found that on the expiry of the authorised period of possession, the public works carried out had irreversibly transformed the land. The District Court found that the applicant’s right of property had thus been extinguished, in accordance with the principle of constructive expropriation, and awarded him full compensation for the damage sustained. The Court of Appeal reduced the amount of compensation, applying a law that had been passed in the meantime. Complaining that the retrospective application of the law had deprived him of a substantial portion of the compensation, the applicant appealed to the Court of Cassation, but without success. The applicant had to institute enforcement proceedings in order to obtain payment of the award. With regard to the system of constructive expropriation, the Court found a violation of Article 1 of Protocol No. 1 in the Belvedere Alberghiera and Carbonara and Ventura v. Italy judgments of 30 May 2000. The Italian Court of Cassation, however, asserted in 2003 that the principle of constructive expropriation was compatible with the Convention.
Law: Article 1 of Protocol No. 1 – The constructive-expropriation system was not capable of ensuring a sufficient degree of legal certainty as required by the Convention. As a result of its application in the applicant’s case, the loss of his property had been inconsistent with the requirement of lawfulness under the Convention. Although the Italian courts had considered that the applicant had been deprived of his possessions since January 1986, no legal certainty had existed in respect of the loss of his land until the Court of Cassation’s judgment of February 2000. Furthermore, the authorities had been able to appropriate the applicant’s land in breach of the rules governing the formal conditions for expropriation and without making any compensation available to him. Lastly, the compensation, which the applicant had had to obtain through court proceedings, had not afforded full redress for the damage sustained.
Conclusion: violation (unanimously).
Article 41 – The Court reserved the question of the application of Article 41.
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This summary by the Registry does not bind the Court.
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