Published on 3 May 2021

FIRST SECTION

Application no. 24517/07 Emilia RUSO and Others against Italy lodged on 4 June 2007 communicated on 16 April 2021

SUBJECT MATTER OF THE CASE

The applicants were the owners of a plot of land which was expropriated by the University of Reggio Calabria for the purpose of erecting a new university building. In 1992, the Provincial Expropriation Commission calculated, on an interim basis, the expropriation compensation in accordance with Article 39 of Law no. 2359 of 1865, that is, having regard to the market value of the expropriated property. That interim determination of the expropriation compensation was acceded to by some of the co-owners only. In 1995, the Provincial Expropriation Commission made a fresh calculation of the compensation, this time in accordance with Article 5 bis of Law No. 359 of 1992. The amount of compensation, as redetermined, was approximately a quarter of the amount previously established. None of the co-owners accepted the compensation expropriation as redetermined in 1995, which was, nonetheless, paid to them.

The applicants filed an opposition against the determination of the Provincial Expropriation Commission before the domestic courts, seeking an amount of compensation equal to the property’s market value. At first instance, the Reggio Calabria Court of Appeal held that the acceptance by some of the co-owners of the expropriation compensation as calculated in 1992 was invalid and, therefore, had no effect. It then proceeded to establish the amount of compensation due to the applicants by law, in order to assess whether the award proposed by the Provincial Expropriation Commission had been correct. The Court of Appeal, in line with the findings of two court ordered expert reports, valuated the property taking into account the land’s de facto potential for development (“ vocazione edificatoria ”), inferred from its proximity to other well-developed areas, including the town centre, roads and other services. The amount of compensation was accordingly calculated taking as a starting point the property’s market value, which was established from the price of land having features similar to the expropriated property, including its urban-planning designation. The final sum was determined in accordance with Article 5 bis of Law No. 359 of 1992, except for the 40% reduction envisaged therein, which was found to be inapplicable to the present case. In 2003, the Court of Cassation quashed the Court of Appeal’s judgment, ruling that the valuation of the property’s market value had been erroneously influenced by the land’s de facto potential for development, whereas expropriation compensation had to be calculated purely according to urban-planning designation in the local master plan.

In remand proceedings, the Messina Court of Appeal, following this principle, held that since the land was designated in the 1985 general development plan (“ piano regolatore generale ”) as Class F (namely, services, roads, etc.), it could not be considered as building land; hence, the compensation had to be calculated with reference to the regime envisaged in Article 16 of Law No. 865 of 1971 in respect of agricultural land. Given that the resulting amount of compensation would have been far lower than that calculated by the Provincial Expropriation Commission in 1995, the applicant’s opposition to it was rejected. In 2012, the Court of Cassation found that, according to the 1990 amendment to the local master plan, the land was earmarked for school building. Since school building “responds to a strictly public-interest service in furtherance of a typical and institutional purpose of State authorities”, private initiative in this sector was radically ruled out. As a consequence, the Court of Cassation went on, the expropriated land could not be considered as building land for calculating expropriation compensation. The Court of Cassation clarified that that conclusion remained unchanged in respect of land designated as Class F (services and roads), as in those cases as well, private initiative was not permitted. Therefore, the Messina Court of Appeal had correctly qualified and valuated the applicants’ property following the criteria established for agricultural land. The Court of Cassation stated that, given that the applicants had received, based on the 1995 determination of the Provincial Expropriation Commission, an amount of compensation at least 10 times higher than the amount to which they would have been entitled by law, their opposition to such a determination fell to be dismissed. In conclusion, by finally rejecting the applicant’s motion, the domestic courts upheld the determination made in accordance with Article 5 bis of Law No. 359 of 1992 by the Provincial Expropriation Commission.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicants’ right to property, contrary to Article 1 of Protocol No. 1?

In particular, did the deprivation of the applicants’ property impose an excessive individual burden on them on account of the amount of expropriation compensation awarded (see Scordino v. Italy (no. 1) [GC], no. 36813/97, ECHR 2006 V)?

The parties are invited to answer this question, based on the judgments rendered by the Court of Cassation in 2003 and 2012, taking into account:

– (i) whether the domestic courts applied the principle according to which, for calculating expropriation compensation, land designated in the general development plan as Class F (services, education, non-residential institutions, sport facilities and infrastructure in general) is equated to non-building (agricultural) land, irrespective of its de facto potential for development, be it residential or non-residential;

– (ii) if so, whether such a principle complies with the Court’s relevant case-law, notably, that compensation must be calculated taking into account, to a reasonable degree, the property’s specific features ( Kozacıoğlu v. Turkey [GC], no. 2334/03, § 72, 19 February 2009), including economic factors influencing its actual market value ( Vistiņš and Perepjolkins v. Latvia (just satisfaction) [GC], no. 71243/01, §§ 37-38, 25 March 2014; Preite v. Italy , no. 28976/05, § 51, 17 November 2015; and Kanaginis v. Greece , no. 27662/09, § 51, 27 October 2016);

– (iii) whether the domestic courts applied Article 5 bis of Law No. 359 of 1992, which factors the land’s cadastral value into the calculation of the expropriation compensation;

– (iv) whether the applicants received a compensation reasonably related to the property’s market value (see Scordino v. Italy (no. 1) [GC], no. 36813/97, ECHR 2006 V).

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 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 of Law No. 359 of 1992?

APPENDIX

No.

Applicant’s Name

Birth year

Nationality

Place of residence

1Emilia RUSO

1938Italian

Siderno

2Marcello D’AGOSTINO

1975Italian

Reggio Calabria

3Pietro Aurelio MODAFFERI

1949Italian

Reggio Calabria

4Antonio PERNA

1947Italian

Reggio Calabria

5Bianca PERNA

1922Italian

Reggio Calabria

6Emilia PERNA

1949Italian

Reggio Calabria

7Emilia PERNA

1950Italian

Ancona

8Francesca PERNA

1953Italian

Reggio Calabria

9Francesco PERNA

1916Italian

Reggio Calabria

10Irene PERNA

1976Italian

Reggio Calabria

11Riccardo PERNA

1974Italian

Padova

12Ubaldo PERNA

1927Italian

Reggio Calabria

13Francesco RUSO

1940Italian

Siderno

14Maria RUSO

1944Italian

Siderno

15Michela SANTAGATI

1952Italian

Catania

16Maria Antonietta SCARIENZI

1918Italian

Montevarchi

17Fulvia TULUI

1963Italian

Rome

18Laura TULUI

1963Italian

Rome