CONCURRING OPINION OF JUDGE SABATO

1. I found convincing and concurred with the findings in the present just satisfaction judgment that:

– there was no need to rule on the question whether a violation of Article 6 § 2 of the Convention may give rise to damage requiring compensation, as in any event there was no causal link between Mr Gironda’s claims of pecuniary damage and the violation of his right to the presumption of innocence (see paragraph 43 of the present judgment);

– as to the violations of Article 7, even supposing that they could give rise to compensation for pecuniary damage, such compensation could not increase the amount to be awarded in respect of the established violations of Article 1 of Protocol No. 1 (ibid.); and

– as to the latter violations, that their nature was significantly different from that of the violations found in Sud Fondi S.r.l. and Others v. Italy (the principal and just satisfaction judgments having been cited above in the present judgment), such that “the present case should be distinguished from that of Sud Fondi ... in a number of respects”: so for example, “while in the Sud Fondi S.r.l. and Others judgment ... the violations were found on account of a lack of legal basis of the confiscations in question, thus rendering them arbitrary, in the present case the violations are mainly procedural, arising solely from the fact that the applicant companies were not parties to the relevant proceedings” (see paragraph 44 of the present judgment).

2. I must, however, note that the ground for distinction identified in the procedural nature of the violations in the present case pertains essentially to the breaches found in the principal judgment (see G.I.E.M. S.r.l. and Others v. Italy [GC], nos. 1828/06 and 2 others, 28 June 2018, hereinafter the “principal judgment”) in relation to Article 7 (i.e. those violations for which well-founded doubts existed as to the possibility of their causing pecuniary damage in the given context, and which at any rate the Grand Chamber held “could not increase the amount to be awarded in respect of the established violations of Article 1 of Protocol No. 1” – see paragraph 43 of the present judgment).

3. More appropriately, under Article 1 of Protocol No. 1, in my humble view, the central distinguishing element was that, while in Sud Fondi confiscation of the properties had not been based on a law of sufficient quality and was therefore arbitrary, in the present case the confiscation was disproportionate, as the automatic application of confiscation in cases of unlawful site development, as provided for – save in respect of bona fide third parties – by Italian legislation did not allow the courts to ascertain which instruments were the most appropriate in relation to the specific circumstances of the case or, more generally, to weigh up the legitimate aim against the rights of those affected by the sanction (see paragraph 5 of the present judgment).

4. Nevertheless, in the principal judgment the fact that the applicant companies were not parties to the impugned proceedings, and therefore did not have the benefit of any relevant procedural safeguards, was also mentioned as part of the non-proportionality assessment (see principal judgment, §§ 303-04).

5. Turning now to the concrete determination of the just satisfaction to be awarded, I wish to clarify that I also found convincing and concurred in the findings that:

– the only head of pecuniary damage having a causal link with the violations was the inability to use the land, while no link existed concerning the deterioration and/or loss of value of the property prior to restitution (see paragraphs 47, 62 and 64-65 of the present judgment);

– in order to compensate for the inability to use the land, the criterion adopted must in principle – as found in the Court’s previous practice – be that the calculation is solely based on the statutory interest applied to the “market value” of the land (see paragraph 47 of the present judgment) at the time of the confiscations (see paragraphs 41 and 48), in the period from confiscation until restitution of the property; and

– the “market value” of the land had to be determined based on: whether or not the land could be built upon at the time of the confiscation in relation to the designated use of the land in question under the relevant legislation and land-use plans, as ascertained also by way of reference to domestic judicial assessments; the duration of the inability to use the land; and the loss of value caused by the confiscation while, if appropriate, deducting the cost of the demolition of any illegal buildings, a cost whose calculation – I note – is essential in environmental protection and which might in some cases even result in negative values (see paragraph 40 of the present judgment).

6. That having been said, I feel that the specific features of the case, as compared to those of Sud Fondi S.r.l. and Others , might have warranted the inclusion of two additional criteria for an assessment of the market value of the land in the present context. The first criterion, in my modest view, should have been the loss of value that the land would have undergone if the authorities – instead of ordering the automatic, and therefore disproportionate, total confiscation – had adopted a more adapted, limited and proportionate measure, appropriate to the concrete situation, for example, confiscation of only part of the land on which buildings were erected; or if an attachment order had been made in respect of the land by way of guarantee to ensure payment of a fine imposed at the same time, etc. Indeed, a judgment of the Court finding a breach of the Convention imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see paragraph 37 of the present judgment), but not to create a better position than that which existed beforehand.

7. The same goes for the restitution of the property, which has been returned to all the applicants in its entirety (see paragraph 13 of the present judgment): this too is an improvement on the situation existing before the breach, whilst a proportionate measure could have been adopted such as to deprive the applicants of only part of the land’s value. Therefore, I would suggest that a second criterion be added: the value of the loss that has thereby been avoided should have been calculated in favour of the respondent State.

8. The lack of consideration of the above criteria made me hesitate to accept the award of the sums as stated in paragraphs 52, 57, and 60 of the present judgment. Indeed, the finding that the automatic application of the confiscation was disproportionate meant that the Court could have accepted that a lesser interference would have been in compliance with Article 1 of Protocol No. 1. Thus, given that the measure was not “ illicite en soi ” (an issue left open in the principal judgment), but solely disproportionate (see the principal judgment, cited above, §§ 303-04), and therefore a less serious violation, this finding should have opened the door to the approach used in cases where the finding of a violation is not based on the unlawfulness of the measure. This was the case, for example, in Terazzi S.r.l. v. Italy ((just satisfaction), no. 27265/95, § 34, 26 October 2004), where the Court held (emphasis added): “ Quant à l’indemnisation à fixer en l’espèce, celle-ci n’aura pas , contrairement à celle octroyée dans les affaires concernant des dépossessions illicites en soi, à refléter l’idée d’un effacement total des conséquences de l’ingérence litigieuse ... ” [1] .

9. But a more important issue has prompted me to express my views separately in this opinion. I note that in the principal judgment the Grand Chamber, when dealing with the objections alleging an abuse of the right of application and non-exhaustion of domestic remedies (see the principal judgment, cited above, §§ 173-74), considered that the proceedings brought by G.I.E.M. S.r.l. before the domestic courts and those before this Court pursued different objectives and purposes.

10. It is, however, undeniable that G.I.E.M. S.r.l. claimed the same heads of damage before both judicial authorities (see the principal judgment, § 43, and, for a list of the heads of damage sought before the Court, paragraph 28 of the present judgment). The Grand Chamber could therefore have chosen not to rule on the pecuniary damage claim, G.I.E.M. S.r.l. having opted to come to the Court before those domestic proceedings came to an end (see, for similar considerations, albeit in a different context, Canè and Others v. Malta (dec.), no. 24788/17, § 75, 13 April 2021).

11. This has not been the case and the issue is cursorily mentioned in paragraph 65 of the present judgment. It is therefore a fact that, in the present judgment, the Court has ruled on (by awarding or rejecting) all items of pecuniary (and also non-pecuniary) damage consequent to the facts and omissions complained of in the principal judgment, regardless of the findings made (for the purpose of admissibility) in paragraphs 173-74 and 176 of the principal judgment.

12. In this situation, it is necessary to refer to the Court’s case-law, which resolves the problems linked to the risk that, once the Court has awarded amounts for damage, or has rejected claims, the applicant could be compensated twice, or could be compensated in spite of a rejection by the Court. The applicable principle is that the national authorities must inevitably take note of awards (or rejections) by the Court (both awards and rejections being final and complete determinations of an applicant’s complaints) in respect of an applicant’s domestic claims (see, mutatis mutandis, Serghides v. Cyprus (just satisfaction), no. 44730/98, § 29, 10 June 2003; Serrilli v. Italy (just satisfaction), no. 77822/01, § 17, 17 July 2008; and Silva Barreira Júnior v. Portugal , nos. 38317/06 and 38319/06, § 40, 11 January 2011). This is particularly important in the situation of G.I.E.M. S.r.l., since the observations and expert reports mentioned in paragraph 28 of the present judgment appear to cover every possible item of harm.

Appendix

List of applications:

No.

Application no.

Lodged on

Applicant

Place of residence or registered office

1.

1828/06

21/12/2005

G.I.E.M. S.R.L.

Bari

2.

34163/07

02/08/2007

HOTEL PROMOTION BUREAU S.R.L. Rome

R.I.T.A. SARDA S.R.L.

Rome

3.

19029/11

23/03/2011

FALGEST S.R.L. Pellaro

Filippo GIRONDA

Pellaro

[1] “As to the compensation to be awarded in the present case, it will not , unlike awards in cases of per se illegal dispossessions, have to reflect the idea of total elimination of the consequences of the interference at issue ...”