Published on 3 May 2021

FIRST SECTION

Application no. 23720/08 Maria MESSENI NEMAGNA and Others against Italy lodged on 7 May 2008 communicated on 16 April 2021

SUBJECT MATTER OF THE CASE

The case concerns the expropriation of the applicants ’ land with a view to the construction of a road. The Bari City Council first approved the project in 1975; it then adopted a general development plan ( piano regolatore generale ) in 1976, in which the applicants ’ land was earmarked for services. In 1977, the authorities took physical possession of the applicants ’ land. In 1987, as public works had not begun yet, the project was reapproved. The expropriation order was issued in 1988 and notified to the applicants in 1991.

The applicants lodged proceedings seeking an amount of compensation equal to the property ’ s market value. Domestic courts ruled that, notwithstanding the land ’ s de facto potential for development (“ vocazione edificatoria ”) ascertained in a court-ordered expert report, the expropriation compensation had to be calculated pursuant to Article 16 of Law No. 865 of 1971 with reference to the land ’ s agricultural value. Domestic courts held, firstly, that the expropriated property being earmarked for services in the general development plan, it could not be valuated as building land; and, secondly, that the said land-use limitations, flowing from the 1987 project reapproval, had to be considered when calculating the compensation as they qualified as ‘ building restraints ’ ( vincoli conformativi ) as opposed to ‘ expropriation-aimed restraints ’ ( vincoli preordinati all ’ esproprio ), given that the road was projected to serve general rather than zone-specific interests. Only when serving the latter interests, according to Italian case law, the amount of compensation may not be affected by the detrimental impact that road construction-aimed land-use limitations had on the value of the property.

QUESTIONS TO THE PARTIES

1. Have the applicants been deprived of their possessions in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1? In particular, has domestic law been sufficiently accessible, precise and foreseeable for the individuals concerned (see, amongst many other authorities, Guiso-Gallisay v. Italy , no. 58858/00, 8 December 2005, and Belvedere Alberghiera s.r.l . v. Italy , no. 31524/96, merits and just satisfaction)?

The parties are invited to answer these questions taking into account :

– ( i ) the case-law of domestic courts concerning the distinction between ‘ building restraints ’ ( vincoli conformativi ) and ‘ expropriation-aimed restraints ’ ( vincoli preordinati all ’ esproprio ), extending the analysis to the strands of judicial decisions that assign decisive relevance, in turn, as either concurring or alternative criteria, to the scope – zonal or generalised vis-à-vis specific or individualised – of the land-use restrictions (see e.g. Court of Cassation (hereafter “Cass.”), nos 207/2020, 28051/2008 and 5215/1989; Consiglio di Stato (hereafter “Cons. St.”), no. 3255/2013), the degree to which the restrictions curtailed the full enjoyment of one ’ s possessions (see e.g. Cons. St., nos 6033/2009 and 4606/2008), the possibility for private parties to develop the land in compliance with its lawful land-use designation (see e.g. Cass., nos 8442/2012, 15616/2007 and 4732/2004), the type of legal instrument imposing the restrictions (see e.g. Cass., nos 11322/2005 and 6914/2005) and the public-interest aim of the prospective public work (see e.g. Cass., nos 15389/2007 and 23973/2004).

– (ii) the case-law of domestic courts drawing a distinction, in the determination of the expropriation compensation, between expropriations carried out to construct roads of general interest and those carried out to construct roads of zone-specific interest (see e.g. Cass., nos 4331/2019, 19924/2007 and 13199/2006), and how this divergent classification, dependent upon discretionary choices made by public authorities, affects the market value of the applicants ’ property.

– (iii) the alleged delays and uncertainties of the expropriation proceedings relating to the applicants ’ property, including the supposed state of uncertainty regarding the extension, modification and duration of the land-use restrictions imposed on the applicants ’ property (see Odescalchi and Lante della Rovere v. Italy , no. 38754/07, 7 July 2015).

2. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was there an interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute on account of the allegedly retrospective application to their case of Article 5 bis § 3 of Law No. 359 of 1992?

3. Did the Court of Cassation specifically address the essential issues which were submitted to its jurisdiction ( Felloni v. Italy , no. 44221/14, §§ 27-31, 6 February 2020, and Boldea v. Romania , no. 19997/02, § 30, 15 February 2007), notably the constitutionality question raised through the lens of Articles 111 and 117 of the Constitution as well as Article 6 of the Convention?

APPENDIX

No.

Applicant ’ s Name

Birth year

Nationality

Place of residence

1Maria MESSENI NEMAGNA

1925Italian

Genoa

2Chiara MESSENI NEMAGNA

1952Italian

Camerino (Mc)

3Mariarosalba MESSENI NEMAGNA

1956Italian

Bari

4Teresa MESSENI NEMAGNA

1928Italian

Bari