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SCORDINO v. ITALY DECISION 1

...

THE FACTS

The applicants are four Italian nationals, Giovanni, Elena, Maria and

Giuliana Scordino, who were born in 1959, 1949, 1951 and 1953

respectively and live in Reggio di Calabria. Having originally been

designated by the initials G.S. and Others, the applicants subsequently

agreed to the disclosure of their names. They were represented before the

Court by Mr N. Paoletti, a lawyer practising in Rome.

A hearing was held on 27 March 2003 at which the applicants were also

represented by Ms A. Mari, Counsel. The respondent Government were

represented by Mr F. Crisafulli, Deputy Co-Agent.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as

follows.

1. The expropriation of the land

In 1992 the applicants inherited from Mr A. Scordino several plots of

land in Reggio di Calabria, entered in the land register as folio 111, parcels

105, 107, 109 and 662.

On 25 March 1970 Reggio di Calabria District Council adopted a general

development plan, which was approved by the Calabria Regional Council

on 17 March 1975.

The land in issue in the instant case, an area of 1,786 sq. m designated as

parcel 109, was classified as building land; an expropriation permit was

issued under the development plan with a view to the construction of

housing on the land.

In 1980 Reggio di Calabria District Council decided that a cooperative

society, Edilizia Aquila, would carry out building work on the land in

question. In a decision of 13 March 1981 the administrative authorities

granted the cooperative permission to occupy the land.

On 30 March 1982, pursuant to Law no. 385/1980, Reggio di Calabria

District Council offered an advance on the compensation payable for the

expropriation, the amount having been determined in accordance with Law

no. 865/1971. The sum offered, 606,560 lire (ITL), was calculated

according to the rules in force for agricultural land, using a value of ITL 340

per square metre as a basis, with the proviso that the final amount of

compensation would be determined once a law had been enacted laying

down new compensation criteria for building land.

The offer was refused by Mr A. Scordino.

2 SCORDINO v. ITALY DECISION

On 21 March 1983 the Regional Council issued an expropriation order in

respect of the land.

On 13 June 1983 the District Council made a second offer for an

advance, this time amounting to ITL 785,000. The offer was not accepted.

In judgment no. 223, delivered in 1983, the Constitutional Court declared

Law no. 385/1980 unconstitutional on the ground that it made the award of

compensation subject to the enactment of a future law.

As a result of that judgment, Law no. 2359/1865, which provided that

compensation for expropriation should correspond to the market value of

the land in question, came back into force.

On 10 August 1984 Mr A. Scordino served formal notice on the District

Council to determine the final amount of compensation in accordance with

Law no. 2359/1865. On 16 November 1989 he learned that Reggio di

Calabria District Council had assessed the final amount at ITL 88,414,940

(ITL 50,000 per square metre) in an order of 6 October 1989.

2. Proceedings for the award of compensation for the expropriation

On 25 May 1990, contesting the amount of compensation he had been

awarded, Mr A. Scordino brought proceedings against the District Council

and the cooperative in the Reggio di Calabria Court of Appeal.

He argued that the amount determined by the District Council was

ridiculously low in relation to the market value of the land and requested,

among other things, to have the compensation calculated in accordance with

Law no. 2359/1865. He also sought compensation for the period during

which the land had been occupied before the expropriation order had been

issued, and for the area of land (1,500 sq. m) that had become unusable as a

result of the building work.

Preparation of the case for hearing began on 7 January 1991.

The cooperative gave notice of its intention to defend and raised an

objection, arguing that it could not be considered a party to the proceedings.

On 4 February 1991, as the District Council had still not given notice of

its intention to defend, the Reggio di Calabria Court of Appeal declared it to

be in default and ordered an expert assessment of the land. In an order of

13 February 1991 an expert was appointed and was given three months in

which to submit his report.

On 6 May 1991 the District Council gave notice of its intention to defend

and raised an objection, arguing that it could not be considered a party to the

proceedings. The expert agreed to his terms of reference and was sworn in.

On 4 December 1991 the expert submitted a report.

On 8 August 1992 Law no. 359/1992 came into force. Section 5 bis of

the Law laid down new criteria for calculating compensation for the

expropriation of building land. The Law was expressly applicable to

pending proceedings. SCORDINO v. ITALY DECISION 3

Following Mr A. Scordino’s death on 30 November 1992, the applicants

joined the proceedings on 18 September 1993.

On 4 October 1993 the Reggio di Calabria Court of Appeal appointed

another expert and instructed him to assess the compensation for the

expropriation according to the new criteria laid down in section 5 bis of

Law no. 359/1992.

The expert submitted his report on 24 March 1994, concluding that the

land’s market value on the date of the expropriation had been ITL 165,755

per square metre. In accordance with the new criteria laid down in section 5

bis of Law no. 359/1992, the compensation due was ITL 82,890 per square

metre.

At the hearing on 11 April 1994 the parties asked for time to submit

comments on the expert’s report. Counsel for the applicants produced a

separate expert opinion and observed that the expert appointed by the court

had omitted to calculate the compensation for the 1,500 sq. m of land that

were not covered by the expropriation order but had become unusable as a

result of the building work.

A hearing was held on 6 June 1994 at which observations were submitted

in reply. The next hearing, scheduled for 4 July 1994, was adjourned by the

court of its own motion until 3 October 1994 and then until 10 November

1994.

In an order of 29 December 1994 the court ordered a further expert

assessment and adjourned the proceedings until 6 March 1995. However,

the hearing was subsequently adjourned on several occasions as the

investigating judge was unavailable. At the applicants’ request, the

investigating judge was replaced on 29 February 1996 and the parties made

their submissions at a hearing on 20 March 1996.

In a judgment of 17 July 1996 the Reggio di Calabria Court of Appeal

held that the applicants were entitled to compensation calculated according

to section 5 bis of Law no. 359/1992, both for the land that had been

formally expropriated and for the land that had become unusable as a result

of the building work. It also held that the compensation thus determined

should not be subject to the further 40% statutory deduction applicable

where the owner of the expropriated land had not signed an agreement for

its transfer (cessione volontaria), seeing that in the applicants’ case the land

had already been expropriated when the Law had come into force.

In conclusion, the Court of Appeal ordered the District Council and the

cooperative to pay the applicants:

(a) ITL 148,041,540 (ITL 82,890 per square metre for 1,786 sq. m of

land) in compensation for the expropriation;

(b) ITL 91,774,043 (ITL 75,012.50 per square metre for 1,223.45 sq. m)

in compensation for the part of the land that had become unusable and was

to be regarded as having been de facto expropriated; and

4 SCORDINO v. ITALY DECISION

(c) compensation for the period during which the land had been

occupied prior to its expropriation.

Those amounts were to be index-linked and interest was payable on them

until the date of settlement.

On 20 December 1996 the cooperative appealed on points of law,

arguing that it could not be considered a party to the proceedings. On 20 and

31 January 1997 respectively the applicants and the District Council

likewise appealed.

On 30 June 1997 the cooperative applied for a stay of execution of the

Court of Appeal’s judgment. That application was rejected on 8 August

1997.

In a judgment of 3 August 1998, deposited with the registry on

7 December 1998, the Court of Cassation allowed the cooperative’s appeal,

acknowledging that it could not take part in the proceedings as it had not

formally been a party to the expropriation, although it had benefited from it.

It upheld the remainder of the Reggio di Calabria Court of Appeal’s

judgment.

The date on which the applicants actually received the compensation is

not known.

In accordance with Law no. 413/1991, the compensation was paid after

tax had been deducted at the source at a rate of 20%.

3. The Pinto Act claim

On 18 April 2001 the applicants applied to the Reggio di Calabria Court

of Appeal, claiming compensation under the Pinto Act for the length of the

proceedings.

They sought redress for non-pecuniary and pecuniary damage.

In a decision of 1 July 2001 the Reggio di Calabria Court of Appeal

awarded the applicants an aggregate sum of 2,450 euros (EUR) for non-

pecuniary damage only and ordered the parties to pay their own costs.

In a letter of 4 December 2002 the applicants stated that, having regard to

the Court of Cassation’s relevant case-law, they did not intend to appeal on

points of law. They appended the two judgments of the Court of Cassation

summarised below in “Relevant domestic law and practice”.

B. Relevant domestic law and practice

1. As regards the complaint concerning the length of proceedings

The relevant parts of Article 111 of the Constitution provide:

“1. Jurisdiction shall be exercised through fair proceedings, conducted in

accordance with the law.

SCORDINO v. ITALY DECISION 5

2. All proceedings shall be conducted in compliance with the principles of

adversarial process and equality of arms before a neutral and impartial court. The right

to be tried within a reasonable time shall be guaranteed by law.”

The relevant provisions of the Pinto Act (Law no. 89/2001) are worded

as follows: Section 2

(Entitlement to just satisfaction)

“(1) Anyone sustaining pecuniary or non-pecuniary damage as a result of a

violation of the Convention for the Protection of Human Rights and Fundamental

Freedoms, ratified by Law no. 848 of 4 August 1955, on account of a failure to

comply with the ‘reasonable time’ requirement in Article 6 § 1 of the Convention,

shall be entitled to just satisfaction.

(2) In determining whether there has been a violation, the court shall have regard to

the complexity of the case and, in the light thereof, the conduct of the parties and of

the judge deciding procedural issues, and also the conduct of any authority required to

participate in or contribute to the resolution of the case.

(3) The court shall assess the quantum of damage in accordance with Article 2056

of the Civil Code and shall apply the following rules:

(a) only damage attributable to the period beyond the reasonable time referred to in

subsection 1 may be taken into account;

(b) in addition to the payment of a sum of money, reparation for non-pecuniary

damage shall be made by giving suitable publicity to the finding of a violation.”

Section 3

(Procedure)

“...

(2) The claim shall be made on an application lodged with the registry of the court

of appeal by a lawyer holding a special authority containing all the information

prescribed by Article 125 of the Code of Civil Procedure.

...

(6) The Court shall deliver a decision within four months after the application is

lodged. An appeal shall lie to the Court of Cassation. The decision shall be

enforceable immediately.

...”

The Italian Court of Cassation has jurisdiction to deal only with points of

law. In civil matters, Article 360 of the Code of Civil Procedure lists the

circumstances in which appeals on points of law are possible.

6 SCORDINO v. ITALY DECISION

In cases relating to the Pinto Act, the Court of Cassation has to date

delivered and published approximately one hundred judgments, copies of

which have been sent to the Registry of the Court.

In Adamo and Others v. Ministry of Justice (judgment of 10 June 2002),

the appellants had applied to the Rome Court of Appeal claiming

compensation under the Pinto Act for the excessive length of proceedings

(in a labour dispute). The Rome Court of Appeal had dismissed their claim

on the ground that they had not proved that they had sustained damage. In

the Court of Cassation the appellants argued that they were entitled to

redress for non-pecuniary damage, in the light of the Strasbourg Court’s

case-law.

The Court of Cassation held that a claimant was not automatically

considered to have sustained damage where there had been a finding of a

violation of the right to a hearing within a reasonable time; in other words,

to use the Court of Cassation’s own expression, the damage was not

in re ipsa. In that connection, the Court of Cassation stated that the right to a

hearing within a “reasonable time” was not a fundamental human right

guaranteed by an immediately applicable constitutional provision, but

merely a right laid down in an ordinary law (the Pinto Act). That right could

not even come under the “right to a fair hearing”, which was protected by

the Constitution but did not give rise to individual safeguards since it was an

outline provision. Consequently, where a court held that the length of

proceedings had been excessive it could award compensation only where it

had been proved that damage had actually been sustained. The Court of

Cassation accordingly dismissed the appeal on the ground that no proof of

non-pecuniary damage had been made out.

In Ministry of Justice v. Maccarone (judgment of 10 June 2002), the

claimant had been awarded ITL 8,000,000 (EUR 4,132) by the Perugia

Court of Appeal. The ministry had contested that decision, arguing, in

particular, that where a court held that the length of proceedings had been

excessive, non-pecuniary damage was not in re ipsa and the court then had

to assess the evidence of the alleged damage.

The Court of Cassation allowed the appeal, quashed the decision

complained of and remitted the case to the Court of Appeal. In so doing, it

reiterated that a violation of the right to a hearing within a reasonable time

was not in itself a source of damage and that it was necessary to ascertain

whether any damage had been sustained by the claimant. The Court of

Cassation considered that the right to a hearing within a reasonable time was

not a fundamental right since it was laid down solely in an ordinary law.

Consequently, the existence of any damage, in particular non-pecuniary

damage, had to be proved by the claimant. Such proof could in practice

follow from inferences or presumptions on the basis of what was known

about the effects of the length of proceedings on those concerned.

SCORDINO v. ITALY DECISION 7

It is clear from a comparative examination of the Court of Cassation’s

judgments available to date that the principles established in the two cases

cited above have been applied consistently.

There are no cases in which the Court of Cassation has entertained a

complaint to the effect that the amount awarded by the Court of Appeal was

insufficient in relation to the alleged damage or inadequate in the light of

the Strasbourg institutions’ case-law. The Court of Cassation has treated

such complaints either as factual issues outside its jurisdiction or as issues

arising on the basis of provisions that are not directly applicable.

2. As regards the expropriation

Section 39 of Law no. 2359/1865 provided that where land was

expropriated, the compensation to be paid should correspond to its market

value at the time of the expropriation.

Article 42 of the Constitution, as interpreted by the Constitutional Court

(see, among other authorities, judgment no. 138 of 6 December 1977),

guarantees the payment of compensation for expropriation, in an amount

lower than the market value of the land.

Law no. 865/1971 laid down new criteria: compensation for any land,

whether it was agricultural or building land, should be paid as though it

were agricultural land.

In judgment no. 5/1980 the Constitutional Court declared

Law no. 865/1971 unconstitutional on the ground that it afforded the same

treatment to two very different situations by providing for the same form of

compensation for building and agricultural land.

In order to remedy the situation, Parliament enacted Law no. 385 of

29 July 1980, which reaffirmed, but this time on a provisional basis, the

criteria that had been declared unconstitutional. The Law provided that

compensation should be paid in the form of an advance, to be supplemented

by a payment calculated on the basis of a subsequent law that would lay

down specific compensation criteria for building land.

In judgment no. 223/1983 the Constitutional Court declared

Law no. 385/1980 unconstitutional on the ground that it made the award of

compensation subject to the enactment of a future law.

As a result of that judgment, Law no. 2359/1865 came back into force.

Consequently, the compensation payable for building land was to

correspond to the land’s market value (see, for example, Court of Cassation,

Section I, judgment no. 13479 of 13 December 1991, and Section I,

judgment no. 2180 of 22 February 1992).

Legislative Decree no. 333 of 11 July 1992, which became Law no. 359

of 8 August 1992, introduced (in section 5 bis) a “temporary, exceptional

and urgent” measure aimed at stabilising public finances, to remain valid

until structural measures were adopted.

8 SCORDINO v. ITALY DECISION

Section 5 bis provides that the compensation payable for the

expropriation of building land is to be calculated using the following

formula: market value of the land plus the total of annual ground rent

multiplied by the last ten years, divided by two, minus a 40% deduction.

In such cases, the compensation corresponds to 30% of the market value.

That amount is subject to tax, deducted at source at a rate of 20% (in

accordance with section 11 of Law no. 413/1991).

The 40% deduction can be avoided if the basis for the expropriation is

not an expropriation order but a “voluntary agreement” for the transfer of

the land or, as in the instant case, if the expropriation took place before

section 5 bis came into force (see the Constitutional Court’s judgment

no. 283 of 16 June 1993).

In such cases, the resulting compensation corresponds to 50% of the

market value. Again, that amount is subject to tax at a rate of 20% (see

above).

The Constitutional Court has held section 5 bis of Law no. 359/1992 and

its retrospective application to be compatible with the Constitution

(judgment no. 283 of 16 June 1993; judgment no. 442 of 16 December

1993) on account of the urgent and temporary nature of the Law.

COMPLAINTS

1. Relying on Article 6 § 1 of the Convention, the applicants complained

of the length of the proceedings.

2. The applicants also complained of an infringement of their right to the

peaceful enjoyment of their possessions in that compensation had been paid

to them a long time after the confiscation of their land and had not been

sufficient, having been calculated on the basis of section 5 bis of

Law no. 359/1992. They alleged a violation of Article 1 of Protocol No. 1.

3. The applicants complained under Article 6 § 1 of the Convention that

the enactment of section 5 bis of Law no. 359/1992 and its application in

their case had amounted to interference by the legislature in breach of their

right to a fair hearing.

THE LAW

1. The applicants complained of the length of the proceedings. They

relied on Article 6 § 1 of the Convention, the relevant parts of which

provide:

“In the determination of his civil rights and obligations ..., everyone is entitled to

a ... hearing within a reasonable time by [a] ... tribunal ...”


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Atreyu

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DESCRIZIONE DISPENSA

La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
Il documento riporta il testo della sentenza della Corte di Giustizia Europea riguardo il caso Scordino in cui si trattava di determinate l'indennizzo a seguito di espropriazione e la ragionevole durata del processo.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
Università: Perugia - Unipg
A.A.: 2011-2012

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Costituzionale Avanzato e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Perugia - Unipg o del prof Cerrone Francesco.

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