FIRST SECTION

DECISION

Application no. 16024/04 Lanfranco ROSSI against Italy

The European Court of Human Rights (First Section), sitting on 19 September 2023 as a Committee composed of:

Péter Paczolay , President , Gilberto Felici, Raffaele Sabato , judges , and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 16024/04) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 31 March 2004 by an Italian national, Mr Lanfranco Rossi, who was born in 1946 and lives in Pennabilli (“the applicant”), represented by Mr C. Defilippi , a lawyer practising in Parme;

the decision to give notice of the application to the Italian Government (“the Government”), represented by their Agents, Mr N. Lettieri and Mr L. D’Ascia;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the interference with applicant’s property rights and the adequacy of compensation for the damage allegedly caused to the applicant’s land due to its occupation and partial transformation by public authorities.

2. The applicant, jointly with his brother, was the co-owner of a plot of land of 1,326 square meters in Pennabilli.

3. On the basis of a declaration of public interest, the land was occupied by the local authority in 1980 in order to carry out public works aimed at protecting the territory from landslides.

4. Some support and drainage structures were installed underground and, at the completion of the works, some wells, that had been erected, remained on the land’s surface, although the applicant could continue to use and enjoy the land.

5. In 1989, the applicant and his brother lodged proceedings against the Pennabilli Municipality and the Marche Region with the Pesaro District Court, seeking damages for the occupation and partial transformation of the land, which they argued had not been in accordance with the law since it had been carried out without an expropriation decree or easement order having been issued, and in the absence of compensation, despite the fact that public works had been erected and remained on their land. They further sought compensation for the damage allegedly caused to a shed on the land.

6 . In 2004 and 2006 respectively, the Pesaro District Court and the Ancona Court of Appeal partially upheld the claim and found that the transformation of the land by the public authorities had not been carried out in accordance with the law and that the applicant and his brother were entitled to damages. After having sought an expert valuation, the courts awarded damages in the amount of 327.22 euros (EUR) jointly to the applicant and his brother. The courts did not use the market value as a starting point but, rather, relied on the criteria laid down in Article 5 bis of Law no. 359/1992, which had entered into force while the proceedings were ongoing before the Pesaro District Court. The courts rejected the claim concerning the alleged damage to the shed, which in any event had been of negligible value, as they found that the building had been unlawfully erected.

7 . In 2014, the Court of Cassation quashed the Court of Appeal’s judgment to the limited extent that the latter court had not adequately considered the reduction of the value of the land on account of the works that had been carried out on it, both above and underground. The Court of Cassation rejected the applicant’s remaining complaints, including those relating to the shed. The latter conclusion thus became final.

8. The proceedings were remitted to the Ancona Court of Appeal for a fresh calculation of the compensation due to the applicant and his brother, to be carried out by using as a starting point the full market value of the land.

9 . By a judgment issued in 2018, the Ancona Court of Appeal acknowledged the Court of Cassation’s final decision about the shed that had been erected without a formal authorisation and calculated the damages for the loss of value of the land to EUR 3,752. The sum was adjusted for inflation and increased by statutory interest running from 1980, when the occupation had begun.

10 . In awarding the compensation, the court relied on a fresh valuation by an independent expert who had assessed the market value of the land according to its urban planning designation and its concrete characteristics. The Court of Appeal underlined the expert’s finding that the works carried out on the land and underground did not prevent the applicant and his brother from adequately exploiting the land, as they affected the use of their property to a very limited extent. The Court of Appeal further underlined that the damage at issue mainly derived from the construction of some wells occupying a small portion of the land and by the fact that the local authority periodically needed to enter the premises to check and maintain the underground structures. The Court of Appeal did not agree that the agricultural exploitation of the land was affected by the underground structures. It further provided reasoning for why it rejected the applicant’s and his brother’s challenges to the expert valuation.

11. The judgment became final in 2021, after the Court of Cassation rejected the applicant’s and his brother’s appeal on points of law.

12. The applicant complained that his land had been unlawfully occupied and transformed by means of indirect or “constructive” expropriation and that a building he owned had been damaged by the authorities, in violation of his right to the peaceful enjoyment of his possessions, as guaranteed by Article 1 of Protocol No. 1 to the Convention.

13 . He also complained under Article 13 of the Convention, alleging that he did not have a proper internal remedy against the indirect expropriation of his land, and alleged that the enactment and application to his case of Article 5 bis of Law no. 359/1992 amounted to interference by the legislature in breach of his right to a fair hearing as guaranteed by Article 6 § 1 of the Convention.

THE COURT’S ASSESSMENT

14. The Government objected to the admissibility of the application on the ground that the applicant was no longer a victim of the violation complained of since he had obtained adequate reparation at the national level.

15. The Court notes, at the outset, that from the documents available to the Court, the applicant’s property was not transferred from the applicant to the local authority (see, in contrast, Carbonara and Ventura v. Italy , no. 24638/94, §§ 63-73, ECHR 2000 ‑ VI, and Messana v. Italy , no. 26128/04, §§ 38-43, 9 February 2017). Rather, while it was temporarily occupied to carry out public works, the land was returned to the applicant, albeit with certain structures remaining present on it.

16. The Court notes that the domestic courts found that the occupation of the applicant’s property by the local authority and the completion of public works on it had not been carried lawfully and held that the applicant was entitled to damages. The Court is satisfied that that amounts to an acknowledgement by the domestic courts of an infringement of the applicant’s property rights.

17. The Court also notes that the domestic courts awarded damages for the loss in value of the applicant’s property on account of the presence of the wells on some portions of land and of the need for the authorities to periodically access the land for maintenance of the underground structures. That sum was also adjusted for inflation and increased by statutory interest running from 1980 (see paragraph 9 above).

18. Furthermore, the Court points out that the Court of Appeal relied on an independent valuation carried out by a court-appointed expert during the domestic proceedings, which the applicant had the opportunity to challenge, and that the sum calculated by the expert to reflect the loss of value of the land was based on the property’s market value which was, in turn, estimated by means of an assessment of the land and its characteristics (see paragraph 10 above). In view of the foregoing, the Court sees no reason to call into question the Court of Appeal’s findings, which were based on the full knowledge of the relevant facts and do not appear arbitrary or manifestly unreasonable.

19. To the extent that the applicant is not satisfied with the rejection of his claim related to the alleged damage to the shed present on the land, the Court notes that the domestic courts provided adequate reasons for why they decided not to award the compensation sought. In particular, they ascertained that the shed, which was of negligible value, had been unlawfully erected on the land (see paragraphs 6, 7, and 9 above). The Court reiterates that it is not its task to reassess the evaluation of facts and evidence carried out by domestic courts.

20. The foregoing considerations are sufficient for the Court to conclude that, in the specific circumstances of the present case, the domestic courts afforded appropriate and sufficient redress to the applicant for the breach of his property rights. The Court is therefore satisfied that the applicant can no longer be considered a victim of such a breach.

21. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 of the Convention.

22. The applicant also raised other complaints under Articles 6 and 13 of the Convention (see paragraph 13 above).

23. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

24. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 12 October 2023.

Liv Tigerstedt Péter Paczolay Deputy Registrar President