ECHR: Confiscation of land over unlawful site development: Italy in violation of Convention

The cases concern the confiscation of land as provided for by domestic legislation in the event of unlawful site development. The applicants alleged that this confiscation had an insufficient legal basis.

The Court observed that all the applicants had had their property confiscated even though none of them had received a formal conviction. In accordance with the Varvara v. Italy case-law, the Court reiterated that Article 7 precluded the imposition of a criminal sanction on an individual without personal criminal liability being established and declared beforehand.

Where the courts found that all the elements of the offence of unlawful site development were made out, while discontinuing the proceedings solely on account of statutory limitation, those findings could be regarded, in substance, as a conviction for the purposes of Article 7, which in such cases would not be breached. It followed that there had been no violation of Article 7 in respect of Mr Gironda.

The applicant companies had not been parties to any proceedings. Having regard to the principle that a person could not be punished for an act engaging the criminal liability of another, a confiscation measure that was applied, as in the present case, to individuals or legal entities which were not parties to the proceedings, was incompatible with Article 7.

The Court took the view that there had been a violation of Article 1 of Protocol No. 1 in respect of all the applicants on account of the disproportionate nature of the confiscation measures.

Lastly, Mr Gironda had been declared guilty, in substance, by the Court of Cassation, following proceedings in which the right to be presumed innocent had not been respected. There had thus been a violation of Article 6 § 2 in respect of Mr Gironda.