Published on 9 October 2023

FIRST SECTION

Applications nos. 15324/17 and 15633/17 Anna Maria Cecilia MARTUCCI against Italy and Matilde FALAGARIO against Italy both lodged on 17 February 2017 communicated on 18 September 2023

SUBJECT MATTER OF THE CASE

The applications concern the non-enforcement of a final judgment adopted in the applicants’ favour by the Lazio regional administrative tribunal ( tribunale amministrativo regionale , “TAR”).

Under Article 1 § 1 of the Decree of 2 February 1994 of the Ministry of Agricultural, Alimentary and Forestry Resources (“the Ministry”), the State covered the guarantees assumed by the associates of agricultural cooperatives in favour of the same cooperatives in case the latter’s bankruptcy had been judicially ascertained by the date of adoption of the decree.

In the case of N.C., father of the first applicant and husband of the second applicant, the request for bankruptcy had been lodged with the competent domestic court before the date of adoption of the decree, but only finalised through the judicial declaration of bankruptcy after that date. N.C. complained that the delay by the courts in declaring the bankruptcy should not deprive him of the State’s financial support.

While the proceedings were pending before the TAR, N.C. died and the applicants intervened as heirs in the proceedings.

On 8 April 2010 the TAR declared the provision at issue unlawful and void. Following this judgment, the applicants requested the Ministry to obtain reimbursement of the sums that they had paid in respect of debts which, in the absence of the provision declared unlawful, should have been paid by the Ministry (Article 1 § 1- bis of Decree-Law no. 149 of 20 May 1993). Their request was dismissed.

The applicants instituted enforcement proceedings ( giudizio di ottemperanza ), asking for the enforcement of the TAR’s judgment, and disputed the Ministry’s dismissal of their reimbursement request, claiming compensation for the damages allegedly suffered on account of the administrative act declared unlawful.

The Council of State eventually dismissed the applicants’ claims. As regards the enforcement of the TAR’s judgment, it observed that it was precluded by “factual and legal obstacles”, as the applicants had in the meantime paid the relevant debts which therefore could not be assumed by the Ministry. Concerning the compensation claim, the Council of State found that the Ministry had made an “excusable error” ( errore scusabile ) in issuing the unlawful act because of the lack of clarity of the relevant domestic provision and the subsequent conflicting case-law on the issue.

The applicants complain that the non-enforcement of the final judgment in their favour, coupled with the dismissal of their reimbursement request, was in violation of Article 6 § 1 of the Convention. Under Article 1 of Protocol No. 1 to the Convention, the applicants further complain of the alleged unlawfulness and lack of proportionality of the interference with their “possessions”.

QUESTIONS TO THE PARTIES

1. Was the finding by the Council of State that the enforcement of the final judgment in the applicants’ favour was precluded by “factual and legal obstacles” and therefore objectively impossible, in the absence of any form of compensation, compatible with the applicants’ rights guaranteed by Article 6 § 1 of the Convention (see Cıngıllı Holding A.Ş. and Cıngıllıoğlu v. Turkey , nos. 31833/06 and 37538/06, § 41, 21 July 2015, and Nikoloudakis v. Greece , no. 35322/12, § 50, 26 March 2020)?

2. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention?

If so:

2.1. was that interference in accordance with the conditions provided for by law, within the meaning of this provision, considering that the TAR declared the relevant administrative act unlawful?

2.2. did that interference impose an excessive individual burden on the applicants, considering that they did not obtain any compensation (see Gashi v. Croatia , no. 32457/05, § 40, 13 December 2007, and Casarin v. Italy , no. 4893/13, § 71, 11 February 2021; see also Centro Demarzio s.r.l. v. Italy [Committee], no. 24/11, 5 July 2018)?

3. The parties are invited to provide clarifications, also in the light of relevant case-law examples, with regard to the notions resorted to in the judgment of the Council of State, namely:

(a) factual or legal obstacles capable of making impossible the enforcement of a court judgment ( sopravvenienza di mutamenti nella realtà fattuale o giuridica, tali da non consentire l’integrale ripristino dello status quo ante); and

(b) excusable error ( errore scusabile ) on the part of the public administration.