Scordino v. Italy (no. 3)

Information Note on the Court’s case-law No. 95

March 2007

Scordino v. Italy (no. 3) - 43662/98

Judgment 6.3.2007 [Section IV]

Article 46

Article 46-2

Execution of judgment

General measures in order to prevent illegal occupation of land and to compensate owners for unlawful dispossession by the State

Article 41

Just satisfaction

Compensation for unlawful occupation and seizure of land by the State (restitutio in integrum)

Facts: The authorities took physical possession of land belonging to the applicants in 1980 with a view to expropriating it. The Italian courts ruled that such possession was illegal but held that, in accordance with the constructive-expropriation rule established by judicial precedent, ownership of the property had been transferred to the authorities. Pursuant to the Budget Act, which placed a ceiling on the amount of compensation to be granted in cases of constructive expropriation, the applicants were awarded amounts which, in their opinion, did not reflect the compensation to which they were entitled. However, the appeals they subsequently lodged to obtain restitution of their land or to contest the amount of compensation were unsuccessful. In a judgment of 17 May 2005 (“the principal judgment”) the Court held that the interference with the applicants’ right to the peaceful enjoyment of their possessions was not compatible with the requirement of lawfulness and that there had accordingly been a violation of Article 1 of Protocol No. 1.

Law: Article 46 – The violation found in the present case originated in a widespread problem arising out of unlawful conduct of the authorities, endorsed by the courts, which allowed them to take possession of property arbitrarily. Failure to comply with the requirement of lawfulness and to respect the right to peaceful enjoyment of possessions had arisen from application of the constructive-expropriation rule, which had been established by judicial precedent and subsequently codified. Given the large number of persons affected and the numerous judgments already delivered by the Court, it was a structural deficiency within the Italian legal order that was not only an aggravating factor as regards the State’s responsibility for an existing or past state of affairs, but also represented a threat to the future effectiveness of the Convention machinery. Accordingly, general measures at national level were called for in execution of the present judgment capable of remedying the systemic defect by implementing, inter alia, a mechanism that would provide injured persons with compensation for the violation in question. Above all, the State should take measures to prevent any unlawful possession of land, whether it be possession without lawful title from the outset or possession that had initially been authorised but had subsequently become unlawful. For that purpose it was conceivable to allow possession of land only where it was established that the expropriation plan and decisions had been adopted in accordance with fixed rules and accompanied by a budgetary provision capable of guaranteeing the expropriated party rapid and adequate compensation. Furthermore, the respondent State should discourage practices that did not comply with the rules on lawful expropriation by enacting provisions that served as a deterrent and by seeking to establish liability on the part of those who engaged in such practices. In every case where possession of land had already been taken without title and transformed in the absence of an expropriation order, the respondent State should eliminate the legal obstacles that systematically prevented, as a matter of principle, the restitution of land. Where land could not be returned for plausible and concrete reasons, the respondent State should ensure payment of a sum corresponding to the value of restitution in kind. The State should also take appropriate steps from a budgetary perspective to award damages, if need be, for losses sustained which would not be covered by restitution in kind or the sum paid in lieu.

Article 41 – The Court restated the principle that a lawful expropriation which infringed Article 1 of Protocol No. 1 on the ground that the compensation was inadequate could not be viewed in the same manner as a case such as the present one, in which the violation resulted from a breach of the principle of lawfulness. Accordingly, compensation for constructive expropriation was not comparable to compensation in cases of lawful expropriation. The unlawfulness of the expropriation of the land was reflected in the applicable criteria for determining the compensation due from the respondent State. In the present case the nature of the violation found in the principal judgment militated in favour of the principle of restitutio in integrum. Accordingly, restitution of the land in question – together with the existing buildings – would have placed the applicants as far as possible in the position they would have been in had there been no violation of the requirements of Article 1 of Protocol No. 1; and would compensate them fully for the consequences of the loss of enjoyment alleged. Failing restitution, the Court held that the compensation to be awarded to the applicants was not limited to the value of their property on the date of unlawful dispossession. It decided that the State should pay them a sum corresponding to the current value of the land (EUR 1,329,840), from which should be deducted the compensation obtained by the applicants in the domestic proceedings and converted to present-day levels (approximately EUR 436,000). To that amount should be added a sum for the appreciation brought about by the existence of buildings – which in the present case was estimated to be at the same level as the construction cost – and was capable of compensating the applicants for any other loss they had sustained. With regard to determining the amount of this compensation, in the absence of any expert report filed by the Government and any comments on the amounts claimed the Court based its decision on the expert report filed by the applicants. Ruling on an equitable basis, the Court awarded the applicants EUR 3,300,000.

Non-pecuniary damage: EUR 10,000 to each applicant, that is, EUR 40,000 in total.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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