FIRST SECTION

DECISION

Application no. 37631/13 Filippo D’ELIA against Italy

The European Court of Human Rights (First Section), sitting on 23 January 2024 as a Committee composed of:

Péter Paczolay , President , Gilberto Felici, Raffaele Sabato , judges , and Attila Teplán, Acting Deputy Section Registrar,

Having regard to:

the application (no. 37631/13) 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 May 2013 by an Italian national, Mr Filippo D’Elia, born in 1926, who lived in Castellaneta (“the applicant”) and was represented by Mr R. Baldassini and Mr B. Forte, lawyers practising in Sora;

the decision to give notice of the application to the Italian Government (“the Government”), represented by their Agent, Mr L. D’Ascia,

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the deprivation of the applicant’s land through the application by the domestic courts of the constructive-expropriation rule ( accessione invertita or occupazione acquisitiva ).

2. The applicant was the owner of a plot of land in Taranto, recorded in the land register as folio 163, parcels nos. 172, 155, 236, 159, 467 and 468 and located along a highway. According to the 1974 municipal land-use plan ( piano regolatore comunale ), parcels nos. 236, 172, 467 and 468 were designated as a road buffer zone, parcel no. 159 as a green area and parcel no. 155 partially as a green area and the rest for public facilities and services.

3. In 1984, the National Autonomous Road Corporation ( Azienda nazionale autonoma delle strade ; “ANAS”) approved a project for the widening of the road; and the Taranto prefect authorised the temporary occupation of the land. On 21 November 1984 the company entrusted with the works took physical possession of the land. The works were completed on 1 November 1986. They affected an area corresponding to parcels no. 172, 236, 159, 467 and 468. Therefore, by the time the occupation authorisation expired, part of the applicant’s land had been irreversibly altered. However, the authorities did not issue a formal expropriation order.

4. On 21 February 1989 the applicant brought an action for damages before the Lecce District Court against ANAS and the companies entrusted with the roadworks, arguing that the occupation of the land had been unlawful and seeking compensation.

5. By judgment of 30 March 2004, the District Court upheld the applicant’s complaints and found that part of his land had been irreversibly altered following the completion of the public works. As a consequence, pursuant to the constructive-expropriation rule, the applicant was no longer the owner of that land. Furthermore, the District Court accepted that the applicant was entitled to damages for the loss of his property in the amount indicated by the court-appointed expert report, and thus awarded a total amount of 220,146,000 Italian Lire (ITL), corresponding to 113,695.92 euros (EUR) plus inflation adjustment and statutory interest.

6. ANAS appealed against that judgment; and the Lecce Court of Appeal ordered a new independent expert valuation.

7. The expert assessed the market value of the land at the time of the deprivation at EUR 34,441.84 (EUR 7.3 per square metre for a total of 4,708 square metres), the improvement of the land due to the addition of humus at EUR 45,859.47 and the value of the existing facilities at ITL 31,077,797 (approximately EUR 16,000).

8. By judgment of 10 November 2010, the Lecce Court of Appeal stated that the applicant had lost ownership of the land at the end of the period of lawful occupation (14 June 1991) and confirmed that the deprivation of property had been unlawful.

9 . As regards compensation, the Court of Appeal departed from the expert’s valuation and assessed the market value of the land at the time of the deprivation at EUR 18,832. In reaching this conclusion, the Court of Appeal noted that the land had an agricultural nature, considering its designation as road buffer zone, which had not been contested by the parties. It further stressed that according to the expert’s assessment the area in which it was located lacked any appeal for investment and that in 1985 building land neighbouring the applicant’s property were valued between EUR 8.92 and 4.13 per square metre. In the light of these considerations, the Court of Appeal deemed appropriate to award compensation corresponding to EUR 4 per square metre. It noted that the sum thus calculated did not deviate considerably from the average agricultural value ( valore agricolo medio “VAM”) of the land. The court further specified that the value also reflected the improvement made to the land. In respect of the facilities, it awarded EUR 5,360.78. The sums were to be adjusted for inflation and increased by statutory interest.

10 . The applicant’s appeal to the Court of Cassation was dismissed on 5 December 2012. To the extent that the applicant had challenged the appellate court’s decision concerning the sum awarded for the facilities and the inclusion of the value of the improvement in the calculation of the market value of the land, the court declared such claims inadmissible for failure to comply with the applicable rules on lodging an appeal on points of law.

11 . As a consequence, ANAS instituted judicial proceedings for the reimbursement of part of the amount paid to the applicant after the first instance judgment. These proceedings were still pending at the time of the exchange of the parties’ observations (21 January 2020).

12. The applicant complained that he had been unlawfully deprived of his land on account of the application by the domestic courts of the constructive ‑ expropriation rule and that the amount of compensation received was inadequate, in breach of his rights under Article 1 of Protocol No. 1 to the Convention.

13. Additionally, relying on Article 6 § 1 of the Convention, the applicant complained that in deciding to depart from the court-appointed expert report the domestic courts had violated his right to a fair trial.

THE COURT’S ASSESSMENT

14. The Court takes note of the information regarding the death of the applicant and the wish of his heirs, Giuseppe D’Elia, Paola D’Elia and Maria Grazia D’Elia, to continue the proceedings in his stead, as well as of the absence of any objection on the Government’s part. Therefore, the Court considers that they have standing to continue the proceedings on behalf of the deceased. However, for practical reasons, reference will still be made to the initial applicant throughout the ensuing text.

15. The Court notes at the outset that the Government objected to the admissibility of the application on the grounds of non-exhaustion of domestic remedies because national proceedings were still ongoing at the time the application was lodged, as well as on the grounds that the applicant was no longer a victim of the violation complained of. With regard to the first objection, the Court notes that the proceedings referred to by the Government concerned the enforcement of the final domestic decision and are thus not capable of calling into question the content of the decision which is the object of the applicant’s complaint before the Court (see paragraph 11 above). It follows that the proceedings referred to by the Government are not related to the violation complained of, and the objection should be dismissed.

16. That being said, the Court finds that the complaint is inadmissible, in any event, on the following grounds.

17. The relevant domestic law and practice concerning constructive expropriation is to be found in Guiso-Gallisay v. Italy ((just satisfaction) [GC], no. 58858/00, §§ 18-48, 22 December 2009).

18. The Court notes that the applicant was deprived of the property by means of indirect or constructive expropriation, an interference with the right to the peaceful enjoyment of possessions which the Court has previously considered, in a large number of cases, to be incompatible with the principle of lawfulness, leading to findings of a violation of Article 1 of Protocol No. 1 (see, among many other authorities, Carbonara and Ventura v. Italy , no. 24638/94, §§ 63-73, ECHR 2000 ‑ VI; and, as a more recent authority, Messana v. Italy , no. 26128/04, §§ 38-43, 9 February 2017).

19. The Court further observes that the Lecce Court of Appeal acknowledged that the deprivation of property had been unlawful and held that the applicant was entitled to compensation. The Court is satisfied that this amounts to an acknowledgement by the domestic courts of the infringement complained of.

20. As to the adequacy of the compensation awarded for the loss of property, the applicant argued that it had been determined on the basis of the average agricultural value criterion. The Government contested the claim, arguing that the domestic courts relied on the actual market value of the land determined by regard being had to its characteristics.

21. The Court observes that the Lecce Court of Appeal awarded a sum that it considered as reflecting the market value of the property (see paragraph 9 above). In this respect, it notes that the domestic court did not simply reduce the market value as estimated by the court-appointed expert without explanation but provided specific reasoning – which does not appear to be manifestly arbitrary – why it chose not to rely on the expert’s valuation (contrast Kutlu and Others v. Turkey , no. 51861/11, §§ 72-74, 13 December 2016). Indeed, the Court of Appeal determined the value of the land on the basis of its categorisation at the time of the loss of the ownership, which is a line of reasoning consistent with the case-law of the Court (see Maria Azzopardi v. Malta, no. 22008/20, §§ 62-63, 9 June 2022). The Court notes that, in doing so, the Court of Appeal did not simply refer to the average agricultural value but, rather, took into account additional elements affecting the value of the property (see paragraph 9 above). The court then determined the market value by making an overall assessment of those elements in the light of the characteristics of the plot of land (contrast Preite v. Italy, no. 28976/05, § 51, 17 November 2015).

22. In these circumstances and having regard to the margin of appreciation afforded to national authorities in such matters, the Court is prepared to accept that the Lecce Court of Appeal awarded a sum reflecting the property’s market value, to be adjusted for inflation and increased by statutory interest.

23. To the extent that the applicant is not satisfied with the additional sum awarded in connection with the facilities present on the land and with the inclusion of the value of the improvement in its calculation of the market value, the Court notes that, in lodging an appeal before the Court of Cassation on this aspect of the compensation, the applicant failed to comply with domestic rules, thus depriving the domestic courts of the possibility of addressing and taking a position on these issues (see paragraph 10 above).

24. In any event, the Court points out that, in a case similar to the one under scrutiny, it found that an award comparable to the one issued by the Lecce Court of Appeal constituted appropriate and sufficient redress for the breach of Article 1 of Protocol No. 1 suffered by the applicant, who had been unlawfully dispossessed of his property by means of constructive expropriation, and concluded that the applicant could no longer be considered a victim of the violation complained of (see Armando Iannelli v. Italy , no. 24818/03, §§ 35-37, 12 February 2013). Having examined all the material submitted to it, the Court has not found any element capable of persuading it to reach a different conclusion in the present case.

25. In the light of the foregoing considerations, the Court is prepared to accept that the domestic courts afforded appropriate and sufficient redress for the breach of the Convention complained of. The Court is therefore satisfied that the applicant can no longer be considered a victim of such a breach.

26. It follows that the 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.

27. In his observations of 2 November 2020, the applicant complained, in a generic manner, that in deciding to depart from the court-appointed expert report, the domestic courts had violated his right to a fair trial under Article 6 § 1 of the Convention.

28. The Court observes that the applicant did not complain about the fairness of the proceedings in the initial application form. Even assuming that the applicant intended to raise such a complaint in his subsequent observations, the Court notes that the domestic proceedings ended on 5 December 2012, that is more than six months before the filing of those observations.

29. It follows that this complaint is inadmissible under Article 35 § 1 of the Convention for non-compliance with the six-month rule, and that it must therefore be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 February 2024.

Attila Teplán Péter Paczolay Acting Deputy Registrar President