Information Note on the Court’s case-law 18

May 2000

Belvedere Alberghiera S.r.l. v. Italy - 31524/96

Judgment 30.5.2000 [Section II]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Deprivation of property

De facto expropriation of land: violation

Facts : The Italian Court of Cassation has established what is known as the constructive-expropriation rule ( accessione invertita or occupazione acquisit iva ) in expropriation cases. The rule lays down that where the authorities take possession of land under an expedited procedure and perform building works on it in the public interest, then, irrespective of the validity of the resolution to take possession , the land may no longer be returned to the owner. The latter is entitled to compensation but must apply to the courts for it, the limitation period being five years from the date the works in the public interest were completed. The applicant company compl ained of the application of that case-law in its case. The municipality had taken possession of land owned by the company under an expedited procedure with a view to building a road on it. The applicant company obtained an order from the administrative cou rt quashing the resolution to take possession on the ground that the scheme was unlawful and not in the public interest. As the municipality took no action pursuant to that order, the applicant company brought enforcement proceedings before the same admini strative court seeking restitution of the land. The court noted that the municipality had since built the road and held that there had been a constructive expropriation, which precluded restitution. The applicant company appealed unsuccessfully to the Cons iglio di Stato against that decision arguing inter alia , that the application of the rule rendered the administrative court’s judgment devoid of purpose. The Consiglio di Stato found that the road-building works had been largely completed before the admini strative court’s first judgment was delivered and therefore concluded that the transfer of property had at that point become irreversible and that there had been no denial of justice.

Law : Article 1 of Protocol No.1 – as a result of the judgment of the Con siglio di Stato applying the constructive-expropriation rule the applicant company had been deprived of the possibility of obtaining restitution of its land. The effect of the judgment had therefore been to deprive the applicant company of its possessions within the meaning of the second sentence of the first paragraph of the present Article. The first and most important requirement of Article 1 of Protocol No. 1 was that any interference by a public authority with the peaceful enjoyment of possessions shou ld be lawful. The requirement of lawfulness meant that rules of domestic law had to be sufficiently accessible, precise and foreseeable. However, in the case before the Court, the fluctuating case-law on constructive expropriations had evolved in a way tha t had led to the rule being applied inconsistently, a factor which could result in unforeseeable or arbitrary outcomes and deprive litigants of effective protection of their rights. It was consequently inconsistent with the requirement of lawfulness. Under the rule established by the Court of Cassation every constructive expropriation followed the unlawful taking of possession of the land. The Court had reservations as to the compatibility with the requirement of lawfulness of a mechanism which enabled the authorities to benefit from an unlawful situation in which the landowner was presented with a fait accompli . In the case before the Court, the regional administrative court had quashed with retrospective effect the resolution passed by the authorities as b eing unlawful and not in the public interest. However, that finding had not resulted in restitution of the land, since the Consiglio di Stato had held that the transfer of property to the authorities had become irreversible. The Court considered that the interference in question was not compatible with Article 1 of Protocol No. 1.

Conclusion : violation (unanimously).

Article 41: the issue of t he application of Article 41 was reserved.

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

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