SORASIO AND OTHERS v. ITALY

FIRST SECTION

DECISION

Application no. 56888/16
Domenica SORASIO against Italy
and 3 other applications
(see list appended)

The European Court of Human Rights (First Section), sitting on 14 November 2023 as a Chamber composed of:

 Marko Bošnjak, President,
 Alena Poláčková,
 Lətif Hüseynov,
 Péter Paczolay,
 Gilberto Felici,
 Erik Wennerström,
 Raffaele Sabato, judges,
and Renata Degener, Section Registrar,

Having regard to the above applications lodged on the various dates indicated in the appended table,

Having regard to the observations submitted by the Italian Government (“the Government”) and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1.  The applicants’ details are set out in the appended table. The applicants were represented by Mr P. Scaparone, a lawyer practising in Turin.

2.  The Government were represented by their Agents, Mr L. D’Ascia and Mr M. Cherubini, Avvocati dello Stato.

The circumstances of the case

3.  The applicants or their predecessors (hereinafter, for ease of reference, “the applicants”) were the owners of different plots of land classified as agricultural land in Villanova Solaro.

4.  In 2004 the Cuneo Prefect issued an order authorising the Interregional Agency for the Po River (Agenzia Interregionale per il fiume Po – AIPo) to occupy portions of the above-mentioned land in order to begin construction of a protective river embankment along the Varaita River, which had flooded in the past.

5.  On 29 June 2004 AIPo took physical possession of the different plots of land and began building the river embankment.

6.  On 24 February 2006 the Higher Public Water Court (Tribunale superiore delle acque pubbliche) acting as a single instance administrative court set aside the Prefect’s order on the ground that it had not been issued in accordance with the requirements of the law. As a consequence, it also set aside all other administrative orders issued in connection with the occupation of the applicants’ land and the authorisation to conduct public works.

7.  On 3 December 2008 that decision was upheld by the Court of Cassation, sitting as a full court.

8.  As no action from the authorities was forthcoming despite the decisions in the applicants’ favour, the applicants brought a fresh set of proceedings before the Higher Public Water Court, seeking the enforcement of that court’s judgment of 24 February 2006. They requested, in particular, the restitution of the property after it had been restored to its original condition or, in the alternative (in subordine), compensation.

9.  On 1 July 2010 the Higher Public Water Court found in favour of the applicants and ordered AIPo to comply with the terms of the court’s judgment within ninety days. The court also appointed a special commissioner (commissario ad acta – “the Special Commissioner”), entrusted with the task of intervening, in the event that AIPo failed to comply with the decision, in order to ensure either the return of the land to the owners or the transfer of ownership to the administrative authorities under Article 43 of Presidential Decree no. 327 of 8 June 2001.

10.  In judgment no. 293 of 8 October 2010, the Constitutional Court declared Article 43 of Presidential Decree no. 327 unconstitutional on formal grounds, namely that the delegated legislator had exceeded the boundaries set out in the delegating legislation.

11.  On 6 July 2011 Article 42 bis was inserted in the Consolidated Law on Expropriations (see paragraph 23 below), replacing the unconstitutional provision.

12.  On 5 August 2011 the Special Commissioner issued an order under Article 42 bis of Presidential Decree no. 327 whereby the applicants’ land was transferred to AIPo.

In the text of the order the Special Commissioner reported that on 2 February 2011 he had visited the land in order to assess the situation on the ground. The visit had been conducted with the applicants and their legal representative present, as well as AIPo’s technical staff. On the same date, in the office of the Villanova Solaro Municipality, the Special Commissioner had held a meeting with the applicants and their legal representative, AIPo staff, the mayor and the municipal secretary, with a view to hearing the positions of the different stakeholders concerned. Moreover, in order to gather information on the technical issues connected with the embankment in question, he had held two meetings with the management and technical staff of the Po River Basin Authority (Autorità di Bacino del Fiume Po).

The Special Commissioner found, taking into consideration the outcome of the meeting with the Po River Basin Authority, that the demolition of the river embankment that had already been built could entail a risk for the inhabitants of the town of Villanova Solaro, particularly in the light of the fact that the area in question had been affected by flooding in the past. In the Special Commissioner’s view, as the restitution of the land and the demolition of the public structures built on it was not a practicable option owing to the foregoing considerations, the most appropriate solution was the acquisition of the property by the relevant public authority upon payment of compensation.

Turning to compensation, the total amount due to the property owners in respect of the pecuniary and non-pecuniary damage they had suffered was set at 241,067.20 euros (EUR). The market value of the property was determined via a comparative estimation based on data on sale prices for similar land designated for agricultural use, collected from local market operators, real‑estate agencies, notaries and the tax authority’s real-estate database. Those prices were further compared with local commercial real-estate advertisements, which provided an additional indication of the relevant real‑estate market trends.

As provided for in Article 42 bis, the applicants were entitled to a further award, amounting to 10% of the property’s market value, as compensation for the non-pecuniary damage suffered.

Additional compensation in respect of the period of unlawful occupation (from 29 June 2006 to 5 August 2011), to be calculated in accordance with the criteria set out in the third paragraph of Article 42 bis, was added to that amount.

The Special Commissioner also considered that, in abstract terms, the applicants might be entitled to additional compensation, if the damage claimed could be supported by adequate evidence. In practice, however, the Special Commissioner found that, as regards the damage allegedly caused to the applicants’ farming activities by the unlawful occupation, as noted in the report of the expert appointed by them to quantify the losses sustained, no additional sum was to be awarded on that account because the conclusions of the expert were not supported by evidence demonstrating the actual existence of the losses sustained. In particular, the Special Commissioner considered that the expert’s assessment had been made without any explanation of the kind of technical and financial evidence gathering he had carried out and without references to relevant supporting documentation from public entities, cadastral records, company tax returns or company balance sheets. In other words, the Special Commissioner concluded that the expert report contained a generic, standardised estimate that did not take into account the specific nature of the losses suffered by each party, was not supported by evidence and did not indicate the sources from which the data had been obtained.

13.  On 10 November 2011 the applicants appealed to the Higher Public Water Court against the order issued by the Special Commissioner under Article 42 bis, arguing, inter alia, that it was incompatible with Article 117 of the Italian Constitution and Article 1 of Protocol No. 1 to the Convention. They contended that the legislation in question sought to “legalise” the administration’s unlawful conduct, making it legally valid and thus allowing the public authority in question to profit from its own unlawful conduct. This corresponded, in their view, to a form of “indirect expropriation” which provided an alternative to expropriations carried out in good and due form. They pointed out that the Court had already found that indirect expropriation was incompatible with the Convention. In this connection they requested that the Higher Public Water Court raise a question of constitutionality before the Constitutional Court.

14.  They also submitted that the order issued under Article 42 bis had not contained adequate reasoning in terms of the balancing of the public and private interests at stake. They further submitted that the compensation set in the order was insufficient. In particular, they argued that it did not cover the additional losses sustained by the applicants as a consequence of the construction of the embankment, in particular those affecting their agricultural activities and the value of their agricultural business.

15.  On 14 March 2012 the Higher Public Water Court dismissed the applicants’ appeal. It found that the question of constitutionality was manifestly ill-founded. The court further found that the order issued under Article 42 bis contained specific reasoning on the public-interest considerations underlying its adoption, which had been balanced against the opposing private interests, as well as on the absence of reasonable alternatives. In particular, the court attached weight to the fact that the order contained references to the actual situation of the affected sites, verified as a result of repeated inspections in which both the applicants and AIPo had been able to participate, which had supported the conclusion that the destruction of the embankment would represent a danger to the inhabitants of Villanova Solaro and, more generally, to public safety, also taking into account the flooding that had occurred in the past. This finding had led the Special Commissioner to exclude alternative solutions to acquisition, such as restitution following demolition of the embankment (entailing a risk to public safety) or an agreement for the sale of the land (settlement negotiations to that end had been unsuccessful). The court concluded that the reasoning contained in the order, albeit brief in certain passages, could be considered adequate, also taking into account that, in its view, rarely had public-interest reasons, namely the role of the public structures in issue in the protection of the lives and safety of a large number of individuals, emerged with as much clarity as they had in the case at hand. In conclusion, the court reiterated that the issuing of the Special Commissioner’s order had been preceded by an accurate evidence-gathering phase, the participation of the applicants in the evaluation of the interests at stake and the balancing of their interests against the public interest in keeping the public structures.

As to the complaint concerning compensation, the court found that the quantification carried out by the Special Commissioner had been correct and had been supported by ample and detailed reasoning. The court specified that the compensation for loss of property had been calculated following an accurate analysis of the market value of the land, obtained on the basis of detailed information on the trends in prices obtained from local market operators, real-estate agencies, notaries and the tax authority’s real-estate database. The court also noted that once the amount had been calculated, the Special Commissioner had correctly awarded additional compensation in respect of non-pecuniary damage suffered and, on account of a lack of evidence of additional damage, had also awarded compensation for the period in which the land had been unlawfully occupied, as provided for in Article 42 bis. In that connection, the court further noted that the applicants’ allegations were generic and not supported by evidence or documents justifying the additional sums claimed.

16.  On 29 May 2012 the applicants lodged an appeal on points of law with the Court of Cassation against the decision of the Higher Public Water Court. They reiterated their arguments as to the unconstitutionality of Article 42 bis and its incompatibility with Article 1 of Protocol No. 1 and as to the allegedly inadequate reasoning of the order issued under Article 42 bis and the insufficiency of the compensation calculated by the Special Commissioner.

17.  On 13 January 2014 the Court of Cassation raised a question of constitutionality as regards the compatibility of Article 42 bis with the Italian Constitution and referred it to the Constitutional Court.

18.  In judgment no. 71 of 30 April 2015, the Constitutional Court found that Article 42 bis was compatible with the Italian Constitution (see paragraph 25 below).

19.  On 25 March 2016 the Court of Cassation dismissed the applicants’ appeal on points of law. As to the issue of constitutionality, the court took note of the Constitutional Court’s judgment of 30 April 2015 and declared the matter closed. As regards the complaints concerning the reasoning of the order issued under Article 42 bis, the court was not able to conclude that, as submitted by the applicants, the Special Commissioner had failed to provide reasoning as to the existence of risks to public safety. As regards compensation, the Court of Cassation agreed with the lower court’s finding that the applicants’ complaints had not been adequately substantiated. It added that in their application before it, the applicants’ arguments had been equally generic, without references to specific plots of land, and lacking in any precise quantification.

RELEVANT LEGAL FRAMEWORKDomestic law and practice“Constructive” or “indirect” expropriation (occupazione acquisitiva, occupazione appropriativa or accessione invertita)

20.  The relevant domestic law and practice concerning constructive expropriation can be found in Guiso-Gallisay v. Italy ((just satisfaction) [GC], no. 58858/00, §§ 18-48, 22 December 2009).

21.  In judgment no. 735/2015 of 19 January 2015 the Court of Cassation, sitting as a full court, found the constructive expropriation rule incompatible with Article 1 Protocol No. 1 to the Convention. Following a review and analysis of the Court’s case-law concerning constructive expropriation in Italy, the Court of Cassation found that its stark contrast with Article 1 of Protocol No. 1 to the Convention was enough, in and of itself, to preclude the survival of the doctrine in question in the domestic legal system.Consolidated Law on Expropriations (Presidential Decree no. 327 of 8 June 2001)

22.  On 30 June 2003 Presidential Decree no. 327 of 8 June 2001, as amended by Legislative Decree no. 302 of 27 December 2002, also known as the Consolidated Law on Expropriations, came into force.

23.  Article 42 bis was inserted in the Consolidated Law on Expropriations by Article 34 of Legislative Decree no. 98 of 6 July 2011 (urgent measures for financial stabilisation) and converted into law, with amendments, by section 1(1) of Law no. 111 of 15 July 2011 after the Constitutional Court had declared Article 43 of the Consolidated Law on Expropriations unconstitutional (judgment no. 293 of 8 October 2010; see paragraph 10 above). The relevant parts of Article 42 bis provide as follows:

Wrongful use of property (occupazione senza titolo) for public-interest purposes

“1.  An authority that has available, for public-interest purposes, immovable property which has been modified in the absence of a valid and effective expropriation order or public-interest declaration may, on the basis of a balancing of the competing interests at stake, issue an order whereby the property is acquired, non-retroactively, as part of public assets ... and the owner is paid compensation in respect of the pecuniary and non-pecuniary damage suffered; the latter shall be calculated on a flat-rate basis equal to 10% of the market value of the property.

2.  If the order setting out restrictions with a view to expropriation (vincolo preordinato all’esproprio), the public-interest declaration or the expropriation order has been set aside, the acquisition order may nonetheless be issued. It may also be issued if judicial proceedings initiated with a view to setting aside the administrative acts mentioned in the first sentence of the present paragraph are ongoing, subject to the withdrawal of the administrative acts in question by the authority that issued them. In such cases, any amount already paid to the property owner as compensation, plus the amount of statutory interest due, shall be deducted from the compensation due under the present Article.

3.  Except in cases where the law provides otherwise, compensation for the damage referred to in paragraph 1 shall be set at an amount corresponding to the market value of the property used for public-interest purposes and, if the occupation concerns a plot of land classified as building land, in accordance with the provisions of Article 37 §§ 3, 4, 5, 6 and 7. In respect of the period of unlawful occupation (occupazione senza titolo), unless there is evidence of additional damage, compensation shall be calculated as equal to interest at the rate of 5% per annum on the sum determined pursuant to this paragraph.

4.  The acquisition order shall identify the circumstances that led to the wrongful use of the property and, if possible, the date on which it began. It shall provide specific reasoning with reference to the current and exceptional public-interest grounds that justify issuing it, to be weighed with the opposing private interests, and it shall demonstrate the absence of reasonable alternatives to its adoption; in the same order, the payment of the compensation referred to in paragraph 1 shall be ordered and payment shall be made within thirty days. The order shall be served on the landowner and shall entail the transfer of property rights subject to the payment of the sums due pursuant to paragraph 1 or the deposit of the same sums, [the order] shall be subject to registration at the land registry on the initiative of the relevant public authority, and a copy of it shall be sent to the office set up pursuant to Article 14 § 2.

...

7.  The authority that issues the acquisition order under the present Article shall notify the Court of Audit[1] of it and submit a full copy [of the order] within thirty days [from the issuing of the order].

8.  The provisions of this Article shall also apply to events prior to its entry into force, even if there was already an acquisition order that was subsequently withdrawn or set aside. However, in such cases, the assessment of the relevance and importance of the public interest must in any case be carried out again ...”Case-law of the Constitutional Court

24.  In January, May and June 2014 four questions of constitutionality were referred to the Constitutional Court, two raised by the Lazio Regional Administrative Court and two by the Court of Cassation, on the subject of Article 42 bis.

25.  In judgment no. 71 of 30 April 2015, the Constitutional Court declared the questions of constitutionality raised by the Lazio Regional Administrative Court inadmissible and those raised by the Court of Cassation unfounded. The relevant parts of the Constitutional Court’s reasoning read as follows (translation by the Registry[2]):

“6.7. ...the acquisition order shall only be permitted in so far as it constitutes an extrema ratio in order to satisfy ‘current and exceptional public-interest grounds’, as set out in Article 42 bis [of the Consolidated Law] on Expropriations. It shall therefore only be permitted once other options have been excluded ... following an effective balancing of competing private interests ... and where partial or full restitution of the property, restored to its previous condition to the private party whose property rights were unlawfully affected, is not reasonably possible.

“6.9.3.  ... It is, indeed, true that the provision also applies to facts that occurred before it came into force, in respect of which there are cases pending, and also where an acquisition order had already existed and was later retracted or set aside. It is also true, however, that this provision addresses the same primary need that underlies the introduction of the new mechanism ...: the need to definitively eliminate the phenomenon of ‘indirect expropriations’, which brought about what the [Court – in the original, “Corte EDU”] labelled a ‘systemic defect’ (in its judgment in Scordino v. Italy [(no. 3) (just satisfaction), no. 43662/98], 6 March 2007), in violation of Article 1 of [Protocol No. 1].

Nor should it be omitted that with Article 42 bis of the [Consolidated Law] on Expropriations ... the acquisition of ownership by the public authorities is no longer tied to judicial scrutiny, characterised, as such, by the margins of unpredictability criticised by the [Court]. Above all, as stated above ..., Article 42 bis contains significant innovations when compared with former Article 43 which render the mechanism compatible with the case-law of the [Court] in so far as ‘indirect expropriations’ are concerned, and, on the contrary, respond to the need to find a definitive and balanced solution to the phenomenon by means of the adoption of a formal measure on the part of the public authorities.

The differences with the earlier acquisition mechanism lie in the non-retroactive character of the acquisition (which prevents the mechanism from being used where a final ruling has already ordered the restitution of the property to the private party), the obligation to repeat the assessment of the relevance and importance of the public interest in carrying out the acquisition and, lastly, the strict duty to provide justification for the adoption of the measure.

Even in the light of the alleged violation of the first and second paragraphs of Article 111 and the first paragraph of Article 117 of the Constitution, this duty to provide justification, on the basis of the relevant provision, which requires ‘the absence of reasonable alternatives to its adoption’, must be interpreted, as stated above ..., to mean that the adoption of the measure is permitted – once other options have been excluded, including a voluntary transfer of the property through purchase and sale and subject to the requirement to perform an effective balancing of the conflicting private interests – only when partial or full restitution of the property, restored to its previous condition, to the private party whose right of ownership has been improperly affected is impossible.

Indeed, only when it is thus interpreted does the provision allow for:

–  the recognition of the existence of ‘imperative reasons of general interest’ in respect of situations that came about prior to its entry into force, legitimising the application of jus superveniens in pending cases; such reasons entail the inescapable necessity to eliminate a situation entailing a systemic defect as criticised by the [Court];

–  the application of the provision, in situations that follow its entry into force, as extrema ratio, preventing it from constituting a simple alternative to expropriation procedures carried out ‘in good and due form’, again in accordance with [the Court’s] case-law;

–  the conclusion that the condition established by the [Court] in ... Scordino ... (cited above), which required the Italian State to ‘remove the legal obstacles which systematically and in principle prevent restitution of the land’, has been satisfied;

–  the prevention of the public authorities’ taking advantage of a de facto situation for which they themselves are responsible – in harmony, once again, with the recommendations of the [Court]; [and]

–  the elimination of the risk of arbitrariness or unpredictability of administrative decisions which would be to the detriment of interested parties.

Lastly, the provision found in paragraph 7 of Article 42 bis of the [Consolidated Law] on Expropriations must be duly appraised, on the basis of which ‘[t]he authority that issues the acquisition order ... shall notify the Court of Audit of it ... within thirty days’. This referral to potential consequences for officials who, during the expropriation, diverge from the rules of due diligence found in the law, responds to an invitation by the [Court] (again in Scordino [cited above]) according to which ‘the respondent State should discourage practices which are incompatible with the rules of expropriation in good and due form by adopting dissuasive provisions and by holding liable those responsible for such practices’.”International material

Council of Europe

26.  On 17 March 2017 the Italian Government submitted a revised action report to the Committee of Ministers of the Council of Europe concerning the execution of the judgment in Belvedere Alberghiera S.r.l. v. Italy (no. 31524/96, ECHR 2000‑VI) and 106 other cases concerning indirect or “constructive” expropriation. The Government acknowledged that, in Scordino (no. 3) (just satisfaction) (no. 43662/98, 6 March 2007), the Court had considered that the problem was structural in nature and indicated general measures to be adopted by the Italian State. With respect to such general measures, the Government explained that the practice of indirect expropriation no longer existed, either in case-law or in legislative provisions. In particular, the enactment in 2011 of Article 42 bis of the Consolidated Law on Expropriations had introduced significant changes to the practice of emergency expropriations and improved safeguards for landowners. The Government pointed out that the procedure introduced by Article 42 bis was to be initiated only as a means of last resort when there were exceptional public-interest reasons. The latter requirement was clearly affirmed by the Constitutional Court as a conditio sine qua non of the compatibility of the procedure with the Court’s case-law. The report states as follows:

“Such reasons must be assessed against the interests of the landowner and must highlight the absence of any reasonable alternative to the adoption of the decree of acquisition. As stressed by the Constitutional Court, this provision must be interpreted as to allow the adoption of such decree of acquisition only when the partial or total restitution of the property (after returning it to its original condition) is not reasonably applicable. In this assessment, the mere difficulty and high costs of the restitution for the public authorities cannot constitute the sole basis for the public interests to prevail over the interests of the landowner.

Moreover it is worth mentioning that the transfer of the property of the land to the authorities has no retroactive effect. This implies that the previous occupation of the land remains unlawful and as such the landowner has the right to be compensated for both pecuniary and non-pecuniary damages. In this context it must be stressed that the provision of Article 42 bis envisages compensation for pecuniary and non-pecuniary damages stemming from the illegal occupation of the land. Specifically, in relation to the former it grants automatically the full market value of the property in conformity with the jurisprudence of the [Court] on this subject. As for the non-pecuniary damages the provision sets it the compensation at 10% of the market value of the land and 20% when the land has been used for public residential buildings. In addition to this, for the occupation sine titulo the landowner is granted further compensation which amounts to a further 5% annual interest on the market value of the property. The provision also include[s] the safeguard for the landowner to prove that he suffered additional damage corresponding to an amount higher than that [set] by the law.

In this connection, it is important to underline that the authorities must automatically pay the compensation outlined above without any action being necessary on the part of the landowner. The transfer of the ownership of the property to the administration is subordinated to the payment of the compensation within 30 days from the issuance of the decree of acquisition....

Another important element of the procedure in question is the possibility for the landowner to participate in the evaluation of the interests at stake. As underlined by the Constitutional Court, the current procedure envisages the communication of the beginning of the procedure to the owner who must have the possibility to intervene in the process and to challenge the decisions taken before the judicial authorities ...

As far as dissuasive measures are concerned, beside the amount of compensation as outlined above, the procedure introduced by article 42 bis provides that the authorities that issue the decree of acquisition must communicate such decision to the Court of Audit. It therefore envisages the responsibility of the authorities vis à vis the public purse.

...

Finally, it is noted that the new procedure of Article 42 bis is also applicable to relevant situations already existing at the time of its adoption. In this context, the issuance of a decree of acquisition (where the above conditions are met) allows putting an end to outstanding situations of uncertainty in conformity with the requirement of legal certainty underlined by the European Court.”

27.  In Resolution CM/ResDH(2017)138, adopted on 10 May 2017 at the 1286th meeting of the Ministers’ Deputies, the Committee of Ministers closed the execution of judgments delivered by the Court against Italy in the above-mentioned group of Belvedere Alberghiera S.r.l. (cited above) and 106 other cases concerning indirect expropriation. Having examined the action report provided by the Government indicating the measures adopted in order to give effect to the judgments, including the information provided regarding the payment of the just satisfaction awarded by the Court, the Committee of Ministers, having satisfied itself that all the measures required under Article 46 § 1 of the Convention had been adopted, declared that it had exercised its functions under Article 46 § 2 of the Convention.

COMPLAINT

28.  The applicants complained that the manner in which they had been dispossessed of their land had resulted in a violation of their right to the peaceful enjoyment of their possessions as guaranteed by Article 1 of Protocol No. 1, which reads as follows:

“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.”

THE LAWJoinder of the applications

29.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.Alleged violation of Article 1 of Protocol No. 1 to the ConventionThe parties’ submissions

(a)   The Government

30.  The Government disagreed with the applicants’ contention that the transfer of property under Article 42 bis of the Consolidated Law on Expropriations replicated the constructive expropriation mechanism and was underpinned by the need to maintain a situation of unlawfully acquired possession by a public authority. Nor could it be stated that such acquisition stemmed from the need to avoid costs related to the restitution of the land and the demolition of public structures already erected on it. Rather, the Government pointed out that an order issued under Article 42 bis of the Consolidated Law on Expropriations had to be supported by “current and exceptional” grounds that justified issuing the order rather than returning the land. The Government asserted that, for this reason, the previous unlawful conduct of the public authority ought to be viewed as the occasion for the adoption of an acquisition order under Article 42 bis rather than its underlying rationale. They also stressed that, as regards the period preceding the issuing of the order during which the property had been unlawfully occupied and altered, the measure did not reflect an attempt to “regularise” an unlawful situation. On the contrary, they argued that the measure in question had been aimed at compensating the owners of the unlawfully occupied property for the damage suffered.

31.  Specifically as regards compensation under Article 42 bis, the Government argued that compensation had to reflect the full market value of the land. They stressed that, in their view, in cases involving an established breach of an individual’s property rights, compensation for the entire value of the dispossessed property based on its market value constituted adequate reparation for the consequences of the violation suffered. This was particularly true, in the Government’s view, where the restitution of the dispossessed property, following the return of the land to its original state through the elimination of public works, appeared to have been absolutely and objectively impossible or disproportionately burdensome. In support of their submissions they pointed out that, according to the Court’s case-law, it could not be said that States were always compelled to grant restitutio in integrum in cases of unlawfully occupied or expropriated property. Rather, relying on Guiso-Gallisay ((just satisfaction) [GC], cited above, Immobiliare Podere Trieste S.r.l. v. Italy (no. 19041/04, 16 November 2006) and Rolim Comercial, S.A. v. Portugal (no. 16153/09, 16 April 2013), the Government contended that, as an alternative to restitution, the Court had accepted compensation reflecting the entire market value of the property, especially when the property in issue had been irreversibly altered by public entities for public-interest purposes. Following a review of the method used by the Special Commissioner to calculate the value of the property, the Government further submitted that in the case under examination, the amount of compensation paid to the applicants for the dispossession of their property had been based on an accurate calculation of the real value of the land. They also argued that the award of additional compensation in respect of the period of unlawful occupation and the sum awarded in respect of non-pecuniary damage provided further evidence of the adequacy of the compensation. They further submitted that the relevant sums had already been paid to the applicants.

32.  As regards the additional sums requested to cover additional damage, the Government noted the Special Commissioner’s conclusions, confirmed by the domestic courts, to the effect that such damage had not been adequately proved.

(b)   The applicants

33.  Relying on the principles established in the Court’s case-law on dispossession of property by way of constructive expropriation, the applicants submitted that the interference with their property rights at issue had not met the standards required by the Convention in terms of lawfulness. They argued that the mechanism introduced by Article 42 bis of the Consolidated Law on Expropriations, which in their view sought to “regularise” – or “legalise” ‑ the transfer of ownership of property to the State in the event of its unlawful occupation and alteration by a local authority, had essentially replicated the “constructive expropriation” principle, which had repeatedly been found to be in breach of Article 1 of Protocol No. 1. They argued that this system of transferring ownership offered the State an alternative to carrying out an expropriation “in good and due form”, thereby sidestepping the safeguards which characterised “standard” expropriation procedures. Moreover, in the applicants’ view, as with the application of the constructive expropriation principle, the mechanism embodied in the legislative provision at issue had enabled the authorities to derive a benefit from their unlawful conduct in which the property owner was presented with a fait accompli.

34.  The applicants argued that they had obtained a decision setting aside the expropriation procedure initiated in connection with their land but, because the land had not been returned voluntarily, they had been obliged to apply to the courts to seek its restitution. They summarised the proceedings which had preceded the issuing of the order under Article 42 bis of the Consolidated Law on Expropriations and complained of the inertia of the public authorities in executing the decision of the Higher Public Water Court to set aside the expropriation order, which meant that their property had been held without title for five years, with public structures erected on it. They emphasised that, during this period of time, they had continued to be deprived of their property, despite a court ruling to the effect that such deprivation had been unlawful.

35.  In their claims for just satisfaction, the applicants submitted that they had not been compensated for all the losses suffered as a consequence of the construction of the public structures, with particular reference to the alleged impact on the agricultural businesses they owned and operated on the land. Making special reference to the ex parte valuation submitted before the domestic courts, the applicants contended, among other things, that their agricultural businesses had suffered losses in terms of their productivity and value.The Court’s assessment

(a)   Preliminary remarks

36.  The Court notes at the outset that in the present case, the domestic authorities took physical possession of different plots of land belonging to the applicants and built public works on them (see paragraph 5 above) in the context of an expropriation procedure whose lawfulness was set aside by the domestic courts (see paragraphs 4-7 above). The Court notes the applicants’ submissions to the effect, inter alia, that their land had been physically occupied and altered by the authorities without title, with public structures having been erected on it, and that they referred to this as a deprivation of property. The Court considers that, although in the instant case the transfer of ownership did not occur until the issuing of the order under Article 42 bis of the Consolidated Law on Expropriations, which provided that the property be handed over to the local authorities upon payment of compensation (see paragraph 12 above), the applicants can indeed be considered to have been de facto deprived of their property even before the formal act of transferring ownership was completed.

37.  The Court notes that the Government conceded that the situation that preceded the issuing of the acquisition order under Article 42 bis had amounted to an unlawful interference with the applicants’ property rights. The Court also notes the submissions by the Government to the effect that the payment of the entire value of the dispossessed property based on its market value constituted, in their view, adequate reparation in cases concerning an established breach of an individual’s property rights when the property could not be returned, and that the compensation awarded to the applicants under Article 42 bis reflected the market value of the land. The Government further invited the Court to take into account the additional sum awarded to the applicants in respect of the period of occupation sine titulo as well as the sum awarded in respect of non-pecuniary damage.

38.  Against that background, the Court finds it appropriate to assess whether the applicants may still be considered victims of a violation of their rights under Article 1 of Protocol No. 1, despite the absence of an explicitly formulated objection by the Government in that connection. It reiterates, in any event, that the question concerns the incompatibility ratione personae of the application with the provisions of the Convention and the Protocols thereto, an issue which goes to the Court’s jurisdiction and which it is not prevented from examining of its own motion (see Orlandi and Others v. Italy, nos. 26431/12 and 3 others, § 117, 14 December 2017).

(b)   Relevant principles

39.  The Court reiterates that it falls firstly to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a “victim” of the violation alleged is relevant at all stages of the proceedings under the Convention. A decision or measure favourable to the applicant is not in principle sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 179-80, ECHR 2006‑V, and Kurić and Others v. Slovenia [GC], no. 26828/06, § 259, ECHR 2012 (extracts)).

40.  Moreover, the redress afforded must be appropriate and sufficient. This will depend on all the circumstances of the case, with particular regard to the nature of the Convention violation in issue (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010). In determining whether domestic redress could be considered appropriate and sufficient, the Court has assessed whether the applicant received reparation for the damage caused which was comparable to just satisfaction as provided for under Article 41 of the Convention (see Cocchiarella v. Italy [GC], no. 64886/01, § 72, ECHR 2006‑V).

41.  The issue as to whether a person may still claim to be the victim of an alleged violation of the Convention essentially entails on the part of the Court an ex post facto examination of his or her situation (see Armando Iannelli v. Italy, no. 24818/03, § 32, 12 February 2013).

(c)   Application of the above principles to the present case

(i)      Acknowledgment of a violation

42.  As regards the first condition, namely the acknowledgment of a violation of the Convention, the Court notes, firstly, that the Higher Public Water Court set aside the order that had initially authorised the occupation of the applicants’ land and construction of the public structures, as it had not been issued in compliance with the requirements of the law, which in turn had led to a further decision setting aside all subsequent orders in connection with the expropriation procedure (see 6 above). The unlawful nature of the occupation and alteration of the applicants’ land on account of the construction of public structures was reiterated by the Higher Public Water Court in its decision concerning the failure of the authorities to comply with its previous decision (see paragraph 9 above).

43.  The Court also notes that Article 42 bis of the Consolidated Law on Expropriations, which is the provision under which the applicants’ property was subsequently transferred to the administration upon payment of compensation, entitled “unlawful occupation (occupazione senza titolo) for public-interest purposes”, is aimed at addressing a situation whereby a public authority has de facto possession of immovable property which has been modified in the absence of a valid expropriation order or public-interest declaration (see paragraph 23 above), and thus outside the bounds of lawfulness. An acquisition order issued under this provision must, inter alia, identify the circumstances that led to what is defined as a wrongful use of the property in question in its reasoning (ibid.). The Court also notes that the Italian Constitutional Court, in upholding the constitutionality of the provision at issue, stated that the rationale underlying its introduction had stemmed from the need to eliminate the constructive expropriation principle from the Italian legal landscape, also in view of the doctrine’s stark incompatibility with Article 1 of Protocol No. 1 to the Convention. It devoted part of its reasoning to assessing the manner in which Italian legislators, in introducing Article 42 bis of the Consolidated Law on Expropriations, had responded to the Court’s direction under Article 46 of the Convention in Scordino (no. 3) ((just satisfaction), cited above, that Italy should discourage practices which were incompatible with the rules of expropriation in good and due form by adopting dissuasive provisions and by holding liable those responsible for such practices. The Constitutional Court stressed that an acquisition order under Article 42 bis constituted a “solution of last resort” (extrema ratio) in the event that restitution of the land to “individuals whose property rights have been unlawfully interfered with” was not reasonably possible (see paragraph 25 above). The Court further notes that compensation terms under Article 42 bis include the payment of a sum to compensate dispossessed property owners for the non-pecuniary damage suffered, which stems from the recognition of an unlawful act. In this connection, the Court would also refer to the Government’s action report to the Committee of Ministers concerning the execution of the judgment in Belvedere Alberghiera (cited above) and other cases on constructive expropriation, in which the Government specified that the transfer of the property under Article 42 bis has no retroactive effect and highlighted that the previous occupation of the land remains unlawful and as such the landowner has the right to be compensated for both pecuniary and non-pecuniary damage (see paragraph 26 above). Moreover, the Court notes that, under Article 42 bis, the authority issuing an acquisition order must inform the Court of Audit, which has jurisdiction over  the administrative responsibilities of public officials, and who may be held accountable in the event of economic loss incurred by the State through their unlawful conduct (see paragraph 23 above).  In view of the foregoing, the provision itself may be viewed as entailing, as one of its very premises, the recognition of an unlawful interference with property rights.

44.  Having regard to the foregoing, the Court is satisfied that the authorities have acknowledged, in substance, a breach of the applicants’ property rights, and therefore concludes that the first condition for loss of victim status has been fulfilled.

(ii)    Appropriate and sufficient redress

45.  It remains for the Court to ascertain whether the amount of compensation obtained by the applicants in the domestic proceedings was sufficient to compensate them for their grievances under Article 1 of Protocol No. 1 to the Convention.

46.  The Court notes that, in previous cases concerning dispossessions of property carried out in the absence of a valid expropriation procedure, it has held that compensation ought to reflect the idea of total elimination of the consequences of the impugned interference and that, in principle, the return of the land should place the applicants as far as possible in a situation equivalent to the one in which they would have been if there had not been a breach of their property rights (see, for example, Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 38, Series A no. 330-B, and Scordino (no. 3), cited above, § 37). However, the Court has also accepted, in certain circumstances, such as when restitution was not possible, that compensation corresponding to the full value of the land at the date on which ownership thereof had been lost constituted an appropriate form of redress (see Guiso-Gallisay, cited above, §§ 96 and 105, and, mutatis mutandis, Stojanovski and Others v. the former Yugoslav Republic of Macedonia (just satisfaction), no. 14174/09, §§ 13-16, 7 February 2019). In addition, the Court has found that a domestic award of compensation based on the market value of the property constituted appropriate and sufficient redress for the purpose of depriving an applicant of his victim status with respect to his complaint that he had been unlawfully dispossessed of his land by means of constructive expropriation (see Armando Iannelli, cited above, §§ 35-37).

47.  Against that background, the Court points out that the Special Commissioner, in balancing the different interests at stake, having acquired technical information from the relevant River Authority and having met with all the stakeholders involved, considered that the destruction of the river embankment in an area prone to flooding would have represented a danger to public safety (see paragraph 12 above). This led the Special Commissioner to exclude the option of returning the land following the demolition of the embankment and to consider that an award of compensation was the only reasonable course of action under the circumstances (ibid.). While upholding the Special Commissioner’s reasoning, the domestic courts took the view that rarely did public-interest reasons, namely the role of the public structures at issue in the protection of the lives and safety of a large number of individuals, emerge with such clarity as they had in the case under its examination (see paragraph 15 above). The Court sees no reason to call into question the findings of the domestic courts, which do not appear to be manifestly arbitrary. Moreover, the Court notes that, in seeking redress in the domestic courts, the applicants themselves requested compensation as an alternative to the restitution of the property (see paragraph 8 above).

48.  In view of its case-law, the Court considers that compensation corresponding to the full value of the land could be considered an appropriate means of redressing the consequences of the harm suffered (see Guiso‑Gallisay, cited above, § 96). In this connection, the Court notes that the Special Commissioner determined a sum reflecting the land’s market value as it stood on the date the order was issued, that sum having been upheld by the domestic courts (see paragraphs 15 and 19 above). In particular, as highlighted by the domestic courts (see paragraph 15 above), in order to determine the value of the land, he based his assessment on a comparative analysis of the price trends for comparable plots of land (see paragraph 12 above). The Court further points out that the applicants did not make any specific submissions before it challenging this aspect of the compensation received or the accuracy of the sum thus awarded. In view of the foregoing, the Court is prepared to accept that the sum calculated to compensate the applicants for the loss of their property was equivalent to the land’s market value on the date of the order formalising the transfer of property to the domestic authorities.

49.  The Court further notes that the applicants received an additional sum as compensation for the unavailability of the land during the period in which it had been unlawfully occupied by the authorities. This sum was calculated, in accordance with Article 42 bis, as equal to interest at a rate of 5% per annum on the amount determined as the property’s market value, as the Special Commissioner noted that the applicants had not adduced sufficient evidence of additional damage, which the domestic legal framework would also have redressed had it been proved (see paragraph 12 above).

50.  To the extent that the applicants appear to have been arguing, in their observations on just satisfaction, that the compensation they had obtained in the domestic proceedings had not reflected the damage to their remaining property or the reduction in the productive capacity of their farms as a consequence of the construction of the river embankment, the Court notes that, in abstract terms, the domestic framework was such that those losses could have been compensated for as well. The fact that no such compensation was awarded stemmed, in concrete terms, from the previously cited finding by the Special Commissioner that such damage had not been adequately proved (see paragraph 12 above). The applicants had the opportunity to lodge their claims with the domestic courts, and those courts found that, because the applicants’ arguments had not been duly substantiated, they were not entitled to the additional compensation sought (see paragraphs 15 and 19 above). The Court is therefore not persuaded that the applicants can be said to have retained their victim status solely on this ground.

51.  Furthermore, in cases concerning unlawful dispossessions of property, the Court has made an award in respect of non-pecuniary damage to compensate applicants for the powerlessness and frustration arising from unlawful interference with their property rights (see, among many other examples, Guiso-Gallisay, cited above, § 110, and Messana v. Italy, no. 26128/04, § 58, 9 February 2017). In the present case, the Special Commissioner added a sum, as provided for in Article 42 bis, amounting to 10% of the property’s market value to compensate the applicants for the non‑pecuniary damage suffered (see paragraphs 12 and 23 above). The Court finds such an amount to be reasonable.

52.  Lastly, the Court notes that the Government furnished evidence to the effect that the sums mentioned above had been paid to the applicants. The applicants did not challenge the Government’s submissions in that respect.

53.  In view of the above, the Court is satisfied that the redress obtained by the applicants at the domestic level may be considered appropriate and sufficient.

(iii)   Conclusion

54.  The foregoing considerations are sufficient to enable the Court to conclude that the applicants can no longer be considered victims of a violation of Article 1 of Protocol No. 1 to the Convention.

55.  It follows that the application is incompatible ratione personae with the provisions of the Convention and the Protocols thereto within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 5 December 2023.

 Renata Degener Marko Bošnjak
 Registrar President

Appendix

No.

Application no.

Case name

Lodged on

Applicant
Year of birth
Place of residence
Nationality

Represented by

1.

56888/16

Sorasio v. Italy

23/09/2016

Domenica SORASIO
1954
Moretta
Italian

Paolo SCAPARONE

2.

57121/16

Sorasio v. Italy

23/09/2016

Tommaso SORASIO
1937
Villanova Solaro
Italian

Paolo SCAPARONE

3.

57145/16

Botto v. Italy

23/09/2016

Federica BOTTO
1962
Villanova Solaro
Italian

Paolo SCAPARONE

4.

57679/16

Giletta v. Italy

23/09/2016

Adriano GILETTA
1963
Villanova Solaro
Italian

Paolo SCAPARONE

[1] The Court of Audit has jurisdiction over matters concerning the management of public funds and the administrative responsibilities of public officials who may be held accountable for their activities in the event of economic loss incurred by the State. See Rigolio v. Italy (no. 20148/09, §§ 52-60, 9 March 2023) for a review of the relevant domestic legal provisions.

[2] The Constitutional Court also provides official translations of its judgments into English (https://www.cortecostituzionale.it/actionJudgment.do – last consulted on 25 September 2023). 

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