Information Note on the Court’s case-law 18

May 2000

Carbonara and Ventura v. Italy - 24638/94

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 applicants owned agricultural land in the municipality of Noicattaro. The town council decided to build a school on adjoining land, which, once the works were under way, was found to be too small. By a decree issued in May 1970, the prefecture authorised the council to take possession, under an expedited procedure, of part of the applicants’ land for a maximum of two years with a view to its expr opriation in the public interest. The school was finished after the authorised period had expired without there being any formal expropriation. In 1980 the applicants brought an action in damages against the council in the civil courts. In 1989 the court o f first instance found in favour of the applicants. However, the court of appeal upheld the town council’s appeal. It accepted that the two-year period had expired and that the possession of the land had therefore become unlawful, but, applying the constru ctive-expropriation rule established by the courts, held that the council had acquired ownership of the land from the date the works were completed. While the applicants had initially been entitled to seek damages, their right was now time-barred because t he five-year limitation period had started to run in October 1972 when the works were completed. In January 1992 the applicants appealed to the Court of Cassation, which dismissed their appeal on the ground that their action in damages was time-barred.

La w : Article 1 of Protocol No. 1 – as a result of the judgment of the Consiglio di Stato applying the constructive-expropriation rule the applicants had been deprived of the possibility of obtaining restitution of their land. The effect of the judgment had therefore been to deprive the applicants of their 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 pu blic authority with the peaceful enjoyment of possessions should 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 ca se-law on constructive expropriations had evolved in a way that 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 conse quently 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 t he 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 . Furthermore, compensation for deprivation of property was not paid automatically by t he authorities, but had to be claimed by the landowner within five years, and as such might prove to be inadequate protection. Applying the constructive-expropriation rule, the Court of Cassation had held that the applicants had been deprived of their land from October 1972. That transfer of property to the authorities had therefore occurred during the period of possession without title, automatically, following completion of the public works. That situation could not be regarded as “foreseeable” as it was only in the final decision, the judgment of the Court of Cassation, that the constructive-expropriation rule could be regarded as having being effectively applied, since a case-law rule did not bind the courts as regards its application. Consequently, the applicants had not been certain that they had been deprived of their land until November 1993, when the Court of Cassation’s judgment was lodged with the registry. In addition, the situation in issue had enabled the authorities to derive a benefit from tak ing possession of the land which they had held without title since the expiry in 1972 of the period fixed by the prefecture’s order. Lastly, the Court of Cassation had applied the five-year limitation period from the date of completion of the works (Octobe r 1972), thereby denying the applicants any possibility of obtaining damages. That interference could be described as arbitrary.

Conclusion : violation (unanimously).

Article 41: the issue of the 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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