CASE OF RUSSO v. ITALY
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney
4. The applicant was born in 1943 and lives in Rome. 5. The applicant was the owner of a plot of land in Randazzo (Catania). The land in issue was recorded in the land register as Folio no. 57, Parcels no. 24, 28, 31, 32, 35 and 360. 6. By an order issued on 5 August 1981, the regional administrative authorities approved a land development plan for the construction of a road on the applicant’s land. 7. On 24 February 1984 the Mayor of Randazzo issued a decree authorising the Randazzo Municipality to take possession, through an expedited procedure and on the basis of a public-interest declaration, of a portion of the applicant’s land in order to begin the construction of the road. 8. On 2 April 1984 the authorities took physical possession of the land. 9. By a writ served on 26 July 1991, the applicant brought an action for damages against the Randazzo Municipality before the Catania District Court. They alleged that the occupation of the land was illegal and that the construction work had been completed without there having been a formal expropriation of the land and payment of compensation. They claimed a sum corresponding to the market value of the land and a further sum in damages for the loss of enjoyment of the land during the period of lawful occupation. 10. On an unspecified date the court ordered an expert valuation of the land. In his report the expert concluded that the occupied land covered a surface area of 2,235 square metres and confirmed that it could be classified as agricultural land. He further concluded that the market value of the land on the date the occupation became unlawful, which was identified as having occurred on 2 April 1990, amounted to 9,000,000 Italian Lire (ITL). 11. By a judgment delivered on 26 May 1999 and filed with the court registry on 8 June 1999, the Catania District Court declared that the possession of the land, which had been initially authorised, had become unlawful as of 2 April 1990. It found that the land had been irreversibly transformed by the public works. As a result, in accordance with the constructive-expropriation rule (occupazione acquisitiva or accessione invertita), the applicant had been deprived of his property, by virtue of its irreversible alteration, on the date on which the possession had ceased to be lawful. In the light of those considerations, the court concluded that the applicant was entitled to compensation in consideration for the loss of ownership caused by the unlawful occupation. 12. The court drew on the expert valuation to conclude that the land could be classified as agricultural land and that its market value on the date the occupation had become unlawful in 1990 corresponded to ITL 9,000,000 (approximately EUR 4,600), to be adjusted for inflation, plus statutory interest. The court further awarded the applicant ITL 2,339,600 (approximately EUR 1,200) as compensation for the damage occasioned by the unavailability of the land during the period from the beginning of the lawful occupation (24 February 1984) until the date of loss of ownership (13 July 1990), as well as ITL 5,150,000 (approximately EUR 2,700) as compensation for the decrease in the value of the adjoining land. 13. On 17 July 2000 the Municipality appealed against the judgment before the Catania Court of Appeal, primarily contesting the assessment of the property’s market value by the court-appointed expert and arguing that the District Court’s awards for damages ought to be reduced. 14. The applicant lodged a cross-appeal whereby he also challenged the court-appointed expert’s findings with regard to the calculation of the land’s market value and criticised the expert’s assessment methods which led, in his view, to an under-evaluation of the land. 15. By a judgment delivered on 30 July 2002 and filed with the court registry on 25 June 2003, the Court of Appeal reduced the amount to be awarded as compensation concerning the adjoining land that had not been subject to occupation but that had nonetheless been damaged to 4,950,000 ITL (approximately EUR 2,500). The court upheld the remainder of the Catania District Court’s judgment. It considered that the first instance court had awarded a sum equal to the property’s full market value. In the court’s view, the latter sum had been correctly determined by the court-appointed expert, who had taken into account the land’s actual characteristics and reached his conclusions by means of a standard methodology. 16. The judgment became final in September 2004.