2 Ap ril 2009

SECOND SECTION

A pplication no. 1828/06 lodged by G.I.E.M. S.R.L . against Italy on 21 December 2005

STATEMENT OF FACTS

FAC T S

The applicant company , G.I.E.M. S.R.L, is a limited liability company having its registered office in Bari . It is represented before the Court by Lucio Riccardi , Giuseppe Mariani and Francesco Rotunno , lawyers practising in Bari.

A. Circumstances of the case

The facts of the case, as submitted by the applicant company , may be summarised as follows .

1. Building work on the applicant company ’ s land

The applicant company owned a plot of land in Bari at Punta Perotti , with a total surface area of about 9, 500 square metres . The plot was adjacent to land belonging to the limited liability company Sud Fondi , classified as suitable for building in the general land-use plan ( piano regolatore generale ) and earmarked for use by service industries according to the plan ’ s specifications.

In by - law no. 1042 of 11 May 1992 the Municipal Council of Bari approved a site development plan ( piano di lottizzazione ) submitted by the company Sud Fondi . This plan provided for the construction of a multi ‑ functional complex , comprising housing, offices and shops . The applicant company claims that its land was automatically incorporated into the development plan by the Municipal Council .

On 27 October 1992 the municipal authority of Bari asked the applicant company if it wished to be party to a site development agreement in order to be able to build on the land; otherwise the authority would have to expropriat e the land under Law no. 6 ( 1979 ) of the Apulia Region .

On 28 October 1992 the applicant company informed the authority that it did not wish to participate in a site development agreement . The authority did not reply.

On 19 October 1995 the Bari municipal authority issued a building permit to the company Sud Fondi .

On 14 February 1995 Sud Fondi began the building work, which had been mostly finished by 17 March 1997.

2. Criminal proceedings against the directors of Sud Fondi

Following the publication of a newspaper article about the building work carried out near the sea at Punta Perotti , on 27 Ap ril 1996, the public prosecutor of Bari o pened a criminal investigation .

On 17 March 1997 the public prosecutor ordered a temporary measure restraining disposal of property in respect of all the buildings in question . He also added the names of certain individuals to the register of persons prosecuted including those of the authorised representative of Sud Fondi and the managers and foremen responsible for the building work . The public prosecutor was of the view that the locality known as Punta Perotti was a protected natural site and that the building of the complex was therefore illegal .

The company Sud Fondi challenged the temporary restraining measure before the Court of Cassation . In a decision of 17 November 1997 th at c ourt declared th e measure null and void and ordered the re turn of all the buildings to their owners, on the ground that it was not prohibited to build on the site according to the land-use plan .

In a judgment of 10 February 1999 the Bari District Court acknowledged the illegality of the buildings at Punta Perotti as they had been built in breach of Law no. 431 of 1985 ( the “ Galasso Act” ), which prohibited the granting of planning permission in respect of sites of natural interest, including coastal areas . However, since in the present case the local authority had issued the building permits , and in view of the lack of coordination between Law no. 431 of 1985 and the Regional Legislation , which was incomplete , the court found that no fault or intention could be imputed to the defendants . A ll the defendants were thus acquitted on the ground that the mental element of the offence had not been made out ( “ perché il fatto non costituisce reato ” ).

In the same judgment, finding that the development plans were materially in breach of Law no. 47 of 1985 and illegal , the Bari District Court ordered, in accordance with section 19 of that Law , the confiscation of all the developed land at Punta Perotti , together with the buildings thereon , and their acquisition by the Municipality of Bari.

In an order of 30 June 1999 the Heritage Minister ( Ministro dei beni culturali ) prohibited any building in the coastal area near the city of Bari, including at Punta Perotti , on the ground that it was a site of significant natural interest . That measure was declared null and void by the Regional Administrative Court the following year .

The public prosecutor appealed against the judgment of the Bari District Court , calling for the defendants to be convicted .

In a judgment of 5 June 2000 the Court of Appeal overturned the decision of the court below . It found that the granting of planning permission had been legal, in the absence of any ban on building at Punta Perotti , and there having been no appearance of illegality in the procedure for the adoption and approval of the site development agreements .

T he Court of Appeal thus acquitted the defendants on the ground that no material element of an offence had been made out ( “ perché il fatto non sussiste ” ) and revoked the confiscation measure in respect of all the buildings and land . On 27 October 2000 the public prosecutor appealed on points of law .

In a judgment of 29 January 2001, deposited in the Registry on 26 March 2001, the Court of Cassation quashed the Court of Appeal ’ s decision without remitting it. It acknowledged the material illegality of the site development plans on the ground that the land in question was subject to an absolute ban on building and to a landscape protection measure , both provided for by law . In that connection, the court noted that at the time the development plans had been adopted (20 March 1990), Regional Law no. 30 of 1990 on landscape protection had not yet entered into force. Consequently, the applicable provisions in the present case were those of Regional Law no. 56 of 1980 ( on land use and development ) and National Law no. 431 of 1985 ( on landscape protection).

The above-mentioned Law no. 56 of 1980 in fact impos ed a prohibition on building within the meaning of section 51 ( F), from which the circumstances of the case allowed no derogation . The site development plans concerned plots of land that were not situat ed within the city limits . In addition, at the time when the site development agreements were adopted, the land in question was included in an implementation scheme for the general land-use plan which post-dated the entry into force of Regional Law no. 56 of 1980.

Lastly, the Court of Cassation noted that in March 1992, at the time when the site development plans had been approved , no implementation scheme had been in force . In that connection the court referred to its case-law to the effect that an implementation scheme had to be in force at the time of the approval of site development plans ( Court of Cassation Section 3, 21.197, Volpe ; 9.6.97, Varvara ; 24.3.98, Lucifero ). The reason for this was that – according to the case-law – once an implementation scheme had expired, the building ban which had been discontinued by the scheme would re-enter into effect. Consequently, it was necessary to find that the land in question had been subject to a building ban at the time of the approval of the site development plans .

The Court of Cassation further referred to the existence of a landscape protection measure, under section 1 of National Law no. 431 of 1985. In the present case, as the competent authorities had not issued a notice of conformity with landscape protection ( that is, neither the nulla osta approval issued by the national authorities attesting to such conformity – under section 28 of Law no. 1150/1942 – nor the prior approval of the regional authorities under sections 21 and 27 of Law no. 1150/1942 o r the approval of the Regional Planning Committee under sections 21 and 27 of Regional Law no. 56/1980).

Lastly, the Court of Cassation noted that the site development plans concerned only 41 , 885 square metres , whereas , according to the specifications of the general land-use plan for the city of Bari, the minimum surface area was set at 50 , 000 square m e tres.

In the light of those considerations, the Court of Cassation thus found that the site development plans and building permits had been illegal . It acquitted the defendants on the grounds that they could not be found to have committed a “fault” or to have intentionally committed offences and that they had committed an “ unavoidable and excusable mistake” in the interpretation of the regional legislation, which was “obscure and poorly worded” and interfered with the national law . The Court of Cassation also took into account the conduct of the administrative authorities , and in particular the following facts: that , on obtaining the building permits , the defendants had been reassured by the director of the relevant municipal office ; that the site-protection prohibitions with which the construction project was at odds did not appear in the land-use plan ; and that the competent national authority had not intervened . Lastly, the Court of Cassation found that in the absence of any investigation concerning the reasons for the conduct of the public bodies, it was not possible to speculate .

In the same judgment the Court of Cassation ordered the confiscation of all the buildings and plots of land , on the ground that , in accordance with its case-law , the application of section 19 of Law no. 47 of 1985 was mandatory in the case of illegal property development, even where the promotors had not been convicted .

On 1 February 2001 the applicant company applied to the Bari authority for permission to finalise the site development agreement .

On 15 February 2001 the Bari authority informed the applicant company that, following the judgment of the Court of Cassation of 29 January 2001, the ownership of the land at Punta Perotti , including that belonging to the applicant company , had been transferred to the municipality .

The criminal proceedings described above gave rise to another application to the Court ( see Sud Fondi S.r.l . and Others v . Ital y , no. 75909/01, 20 January 2009).

3. Actions taken by applicant company to obtain return of land

On 3 May 2001 the applicant company lodged an appeal with the Court of Appeal of Bari seeking the return of its land . It alleged that, in line with case-law of the Court of Cassation , the confiscation of property belonging to a third party to criminal proceedings could be ordered only to the extent that the latter had participated in the commission of the offence, in terms of either physical or mental elements .

In a decision of 27 July 2001 the Court of Appeal upheld the applicant company ’ s appeal .

The public prosecutor appealed on points of law .

In a judgment of 9 Ap ril 2002 the Court of Cassation quashed the decision of the Bari Court of Appeal and remitted the case to the Bari District Court .

The applicant company lodged an objection to execution , seeking the return of its land .

In a decision deposited in the court ’ s r egistry on 18 March 2004, the preliminary investigations judge ( giudice per le indagini preliminari ) of Bari dismissed the applicant company ’ s appeal . He first observed that the company ’ s grievances concerned neither the existence nor the formal lawfulness of the impugned measure, which was a mandatory administrative sanction that the criminal court was also entitled to impose in respect of the property of third parties who had not taken part in the commission of the unlawful development offence . The public imperative of protecting land had to prevail over the individual interest .

The applicant company appealed on points of law . It emphasised that no construction work had actually been carried out on its land , which had not been the subject of a building permit . By its very nature, it argued, a confiscation measure should be directed solely against land upon which unlawful construction had taken place .

In a judgment of 22 June 2005, deposited in the court ’ s registry on 18 January 2006, the Court of Cassation , finding that the Bari preliminary investigations judge had addressed all the points in dispute giving logical and correct reasons , dismissed the applicant company ’ s appeal on points of law . The c ourt noted that the confiscation of the applicant company ’ s land had been compliant with its settled case-law whereby the measure provided for in section 19 of Law no. 47 of 1985 was a mandatory administrative sanction imposed by the criminal court on the basis of the incompatibility of the situation of the property in question with the legislation on unlawful development , even where the defendants had been acquitted . Property owners who were not parties to the criminal proceedings and who had acted in good faith would be entitled to seek redress before the civil courts .

B. Relevant domestic law and practice

The relevant domestic law is described in the judgment Sud Fondi S.r.l . and Others v . Ital y , no. 75909/01, 20 January 2009.

COMPLAINTS

1. Relying on Article 1 of Protocol No. 1 , the applicant company complains about the confiscation of its land, arguing that no construction work has taken place thereon and therefore that there has been no actual unlawful development .

2. Relying on A rticle 7 of the Convention, the applicant company complains that a sanction (confiscation of land ) has been imposed on it, despite the fact that there has been no improper conduct on its part or on the part of its shareholders .

3. Relying on Article 6 § 1 and Article 13 of the Convention, the applicant company complains that it did not have access to a court since it had no possibility of defending itself or of submitting argument against the adoption of the confiscation measure, either before the criminal trial court or in civil proceedings . The possibility of filing an objection to execution did not provide any redress in respect of those shortcomings .

QUESTIONS TO THE PARTIES

1. Was the confiscation measure directed against the applicant company ’ s property c ompatible with A rticle 7 of the Convention ? In particular :

( a) Did the illegality of the property development – as found by the domestic courts, resulting in the confiscation measure – arise from accessible and foreseeable legislation ?

( b) As regards the impugned confiscation measure, decided without any criminal proceedings having been brought against the applicant company , was it provided for by law, within the meaning of the Convention, having regard to the specificity of the principle of compliance with legislation under A rticle 7 in relation to criminal “guilt” and the application of “punishments” ?

2. Was the impugned confiscation measure compatible with Article 1 of Protocol No. 1 ?

( a) In particular, can it be considered that the measure was provided for on a sufficient, foreseeable and accessible legal basis ?

( b) Can it be regarded as proportionate interference ?

3. Did the applicant enjoy a right of access to a court , within the meaning of A rticle 6 § 1 of the Convention , in the light of its inability to submit argument against the adoption of the confiscation measure in the criminal trial court or in the civil courts ?

4. Did the applicant company have, as required by A rticle 13 of the Convention, an effective domestic remedy by which to challenge the confiscation of its land ?