7.  The applicant companies have their registered offices respectively in Bari (G.I.E.M. S.r.l.), Rome (Hotel Promotion Bureau S.r.l. and R.I.T.A. Sarda S.r.l.), and Pellaro (Reggio di Calabria) (Falgest S.r.l.).
Mr F. Gironda was born in December 1959 and lives in Pellaro.
8.  The applicant company owned a plot of land in Bari on the coast at Punta Perotti, with a total area of 10,365 sq. m, adjacent to land belonging at the time to a limited liability company Sud Fondi S.r.l. The land was classified as suitable for building in the general land-use plan (piano regolatore generale) in respect of two plots, the rest being earmarked for use by small businesses according to the plan’s specifications.
9.  In By-Law no. 1042 of 11 May 1992 the Bari municipal council approved a site division and development plan (piano di lottizzazione ‑ hereinafter “site development plan”) submitted by Sud Fondi S.r.l. The plan provided for the construction of a multi-purpose complex, comprising housing, offices and shops. According to the applicant company, its land was automatically incorporated into the development plan by the municipal council.
10.  On 27 October 1992 the Bari municipal authority asked the applicant company if it wished to be party to a site development agreement in order to be able to build on the land. If its response was negative, the authority would have to expropriate the land under Law no. 6 (1979) of the Apulia Region.
11.  On 28 October 1992 the applicant company informed the Bari municipal authority that it wished to participate in a site development agreement. The authority did not reply.
12.  On 19 October 1995 the Bari municipal authority issued a building permit to Sud Fondi S.r.l.
13.  On 14 February 1996 Sud Fondi S.r.l. began the building work, which had mostly been completed by 17 March 1997.
14.  On 27 April 1996, following the publication of a newspaper article about the building work carried out near the sea at Punta Perotti, the public prosecutor of Bari opened a criminal investigation.
15.  On 17 March 1997 the public prosecutor ordered a temporary measure restraining disposal of property in respect of all the buildings in question. He also added the names of certain individuals to the register of persons prosecuted, including those of the authorised representative of Sud Fondi S.r.l. and the managers and foremen responsible for the building work. In his decision the public prosecutor expressed the view that the locality known as Punta Perotti was a protected natural site and that the building of the complex was therefore illegal.
16.  The representatives of Sud Fondi S.r.l. challenged the temporary restraining measure before the Court of Cassation. In a decision of 17 November 1997 that court declared the measure null and void and ordered the return of all the buildings to their owners, on the ground that it was not prohibited to build on the site according to the land-use plan.
17.  In a judgment of 10 February 1999 the Bari District Court acknowledged the illegality of the buildings erected at Punta Perotti as they had been built in breach of Law no. 431 of 8 August 1985 (“Law no. 431/1985”), which prohibited the granting of planning permission in respect of sites of natural interest, including coastal areas. However, since in the present case the local authority had issued the building permits, and in view of the lack of coordination between Law no. 431/1985 and the regional legislation, which was incomplete, the court found that no negligence or criminal intent could be imputed to the defendants. All the defendants were thus acquitted on the ground that the mental element of the offence had not been made out (“perché il fatto non costituisce reato”).
18.  In the same judgment, finding that the development plans were materially in breach of Law no. 47/1985 and illegal, the Bari District Court ordered, in accordance with section 19 of that Law, the confiscation of all the developed land at Punta Perotti, including that belonging to the applicant company, together with the buildings thereon, and the incorporation of the property, without compensation, into the estate of the municipal authority of Bari.
19.  In an order of 30 June 1999 the Heritage Minister (Ministro dei beni culturali) prohibited any building in the coastal area near the city of Bari, including at Punta Perotti, on the ground that it was a site of significant natural interest. That measure was declared null and void by the Regional Administrative Court the following year.
20.  The public prosecutor appealed against the judgment of the Bari District Court, calling for the defendants to be convicted.
21.  In a judgment of 5 June 2000 the Bari Court of Appeal overturned the decision of the court below. It found that the granting of planning permission had been legal, in the absence of any ban on building at Punta Perotti, and there having been no appearance of illegality in the procedure for the adoption and approval of the site development agreements.
22.  The Court of Appeal thus acquitted the defendants on the ground that no material element of an offence had been made out (“perché il fatto non sussiste”) and revoked the confiscation measure in respect of all the buildings and land. On 27 October 2000 the public prosecutor appealed on points of law.
23.  In a judgment of 29 January 2001 the Court of Cassation quashed the Court of Appeal’s decision without remitting it. It acknowledged the material illegality of the site development plans on the ground that the land in question was subject to an absolute ban on building and to a landscape protection measure, both provided for by law. In that connection, the court noted that at the time the development plans had been adopted (20 March 1990), Regional Law no. 30/1990 on landscape protection had not yet entered into force. Consequently, the applicable provisions in the present case were those of Regional Law no. 56 of 1980 (on land use and development) and National Law no. 431/1985 (on landscape protection).
24.  The Court of Cassation observed that Law no. 56/1980 in fact imposed a prohibition on building within the meaning of section 51(F), from which the circumstances of the case allowed no derogation, because the site development plans concerned plots of land that were not situated within the city limits. The court added that, at the time when the site development agreements were adopted, the land in question was included in an implementation plan (piano di attuazione) for the general land-use plan which post-dated the entry into force of Regional Law no. 56/1980.
25.  The Court of Cassation noted that in March 1990 (see paragraph 23 above), at the time when the site development plans had been approved, no implementation scheme (programma di attuazione) had been in force. In that connection the court referred to its case-law to the effect that an implementation scheme had to be in force at the time of the approval of site development plans (Court of Cassation, Section 3, 21 January 1997, Volpe; 9 June 1997, Varvara; 24 March 1998, Lucifero). The reason for this was ‑ again according to the case-law – that once an implementation scheme had expired, a building ban which had been discontinued by the scheme would become effective once again. Consequently, it was necessary to find that the land in question had been subject to a building ban at the time of the approval of the site development plans.
26.  The Court of Cassation further referred to the existence of a landscape protection measure, under section 1 of National Law no. 431/1985. In the present case, as the competent authorities had not issued a notice of conformity with the requirements of landscape protection (that is, neither the nulla osta approval issued by the national authorities attesting to such conformity – under section 28 of Law no. 150/1942 – nor the prior approval of the regional authorities under sections 21 and 27 of Law no. 150/1942, nor the approval of the Regional Planning Committee under sections 21 and 27 of Regional Law no. 56/1980).
27.  Lastly, the Court of Cassation noted that the site development plans concerned only 41,885 sq. m, whereas, according to the specifications of the general land-use plan for the city of Bari, the minimum area was set at 50,000 sq. m.
28.  In the light of those considerations, the Court of Cassation thus found that the site development plans and building permits had been illegal. It acquitted the defendants on the grounds that they could not be found to have negligently or intentionally committed offences and that they had made an “unavoidable and excusable mistake” in the interpretation of the regional legislation, which was “obscure and poorly worded” and interfered with the national law. The Court of Cassation also took into account the conduct of the administrative authorities, and in particular the following facts: on obtaining the building permits, the defendants had been reassured by the director of the relevant municipal office; the site-protection prohibitions with which the construction project was at odds did not appear in the land-use plan; and the competent national authority had not intervened. Lastly, the Court of Cassation found that in the absence of any investigation concerning the reasons for the conduct of the public bodies, it was not possible to speculate on those reasons.
29.  In the same judgment the Court of Cassation ordered the confiscation of all the buildings and plots of land, on the ground that, in accordance with its case-law, the application of section 19 of Law no. 47 of 1985 was mandatory in the case of illegal site development, even where the property developers had not been convicted.
30.  The judgment was deposited in the court Registry on 26 March 2001.
31.  In the meantime, on 1 February 2001 the applicant company had again asked the Bari municipal authority for permission to enter into a site development agreement.
32.  On 15 February 2001 the Bari municipal authority informed the applicant company that, following the judgment of the Court of Cassation of 29 January 2001, the ownership of the land at Punta Perotti, including that belonging to the applicant company, had been transferred to the municipality.
33.  The criminal proceedings described above gave rise to another application to the Court (see Sud Fondi S.r.l. and Others v. Italy, no. 75909/01, 20 January 2009).
34.  On 3 May 2001 the applicant company applied to the Court of Appeal of Bari seeking the return of its land. It alleged that, in line with case-law of the Court of Cassation, the confiscation of property belonging to a third party in relation to criminal proceedings could be ordered only to the extent that the latter had participated in the commission of the offence, in terms of either material or mental elements.
35.  In a decision of 27 July 2001 the Court of Appeal upheld the applicant company’s appeal.
36.  The public prosecutor appealed on points of law.
37.  In a judgment of 9 April 2002 the Court of Cassation quashed the decision of the Bari Court of Appeal and remitted the case to the Bari District Court.
38.  The applicant company lodged an interlocutory application for review of the enforcement order, seeking the return of its land.
39.  In a decision deposited in the court’s Registry on 18 March 2004, the Bari preliminary investigations judge (giudice per le indagini preliminari) dismissed the applicant company’s application. He first observed that the company’s grievances concerned neither the existence nor the formal lawfulness of the impugned measure, which was a mandatory administrative sanction that the criminal court was also entitled to impose in respect of the property of third parties which had not taken part in the commission of the offence of unlawful site development offence. The judge found that the public imperative of protecting land had to prevail over the individual interests.
40.  The applicant company appealed on points of law. It emphasised that no construction work had actually been carried out on its land, which had not been the subject of a building permit. By its very nature, it argued, a confiscation measure should be directed solely against land upon which unlawful construction had taken place.
41.  In a judgment of 22 June 2005, deposited in the court’s Registry on 18 January 2006, the Court of Cassation, finding that the Bari preliminary investigations judge had addressed all the points in dispute giving logical and correct reasons, dismissed the applicant company’s appeal on points of law. The court noted that the confiscation of the applicant company’s land had been compliant with its settled case-law whereby the measure provided for in section 19 of Law no. 47 of 1985 was a mandatory administrative sanction imposed by the criminal court on the basis of the incompatibility of the situation of the property in question with the legislation on unlawful site development, even where the defendants had been acquitted. Property owners who were not parties to the criminal proceedings and who claimed to have acted in good faith would be entitled to seek redress before the civil courts.
42.  According to the information provided by the parties, in October 2012 the Bari municipal authority, having regard to the principles set out and the violations found by the Court in its Sud Fondi S.r.l. and Others judgments (merits and just satisfaction, no. 75909/01, 10 May 2012), asked the Bari District Court to return the confiscated land to the applicant company. In a decision of 12 March 2013 the preliminary investigations judge of that court revoked the confiscation measure and ordered the return of the land on account of the fact that, first, the Court had found a violation of Article 7 of the Convention in Sud Fondi S.r.l. and Others and, secondly, that the company was to be regarded as a bona fide third party because none of its directors had been found liable for the offence of unlawful site development. The judge’s decision was entered in the land register on 14 June 2013 and the applicant company was thus able to recover its property on 2 December 2013.
43.  On 7 April 2005 the applicant company had applied to the Bari District Court, seeking compensation for the damage it had sustained as a result of the conduct of the Bari municipal authority and the consequences for the company’s assets. It reproached the municipal authority for: (1) failing to adopt an alternative to the land-use plan; (2) failing to clarify the existence of the constraints arising as to the authorised use of the areas concerned by the site development at issue; and (3) approving site development procedures which had apparently been lawful but had led to the confiscation of the land and had caused a significant economic loss.
According to the information provided by the parties, the proceedings were still pending, as the expert’s report evaluating the damage, estimated at 52 million euros by the applicant company, had not yet been filed.
44.  The applicant company R.I.T.A. Sarda S.r.l. was the owner of land suitable for building with an area of 33 hectares at Golfo Aranci.
45.  Under the municipal development scheme (programma comunale di fabbricazione) for Golfo Aranci, approved on 21 December 1981, the land in question belonged to zone F – classified as a tourist zone – and was suitable for building within a given volume. It was possible to exceed that volume in the context of hotel or hotel-type development.
46.  Wishing to build a hotel-type residential complex for tourists with a number of accommodation units (produttiva alberghiera), R.I.T.A. Sarda S.r.l. submitted a site development plan (piano di lottizzazione) to the competent authorities.
47.  On 27 March 1991, under section 13 of Regional Law no. 45 of 1989, the Sardinia Region issued its nulla osta approval for building at a minimum distance of 150 metres from the sea, provided that once erected the buildings would actually be used for tourist accommodation. That obligation had to be recorded in the land register.
48.  On 29 November 1991 the Sardinia Region granted the landscape transformation permit, under Law no. 431/1985 and section 7 of Law no. 1497/1939, to R.I.T.A. Sarda S.r.l. (see paragraphs 93-96 below).
49.  The municipality of Golfo Aranci approved the site development plan with final effect on 17 December 1991.
50.  On 22 April 1992, subject to the regional approval, the municipality of Golfo Aranci authorised the mayor to issue a derogating building permit allowing a greater construction volume than that provided for by its municipal development scheme, for the purposes of a hotel-type structure (opere alberghiere ricettive). The file shows that the site development plan concerned an area of 330,026 sq. m.
51.  On 17 July 1992 the Sardinia Region issued its final approval of the plan.
52.  In the meantime, on 22 June 1992, Regional Law no. 11/1992 had entered into force. It removed the possibility of derogating from the prohibition on building near the sea and fixed the minimum distance at 2 kilometres for dwellings and 500 metres for hotels. As regards buildings intended for hotel-type use, such as the hotel-type residential complexes for tourists in the present case, they were to be treated as dwellings. Under the same law, the minimum distance of 2 kilometres thus had to be maintained, except in the cases where, before 17 November 1989, a site development agreement had already been signed and the infrastructure work had already begun.
53.  On 17 July 1992 the Sardinia Region authorised the mayor to grant a building permit to R.I.T.A. Sarda S.r.l. by way of derogation from the municipal land-use plan.
54.  On 13 August 1992 the mayor of Golfo Aranci and R.I.T.A. Sarda S.r.l. entered into a site development agreement. Under Article 10 thereof the buildings erected on the site would continue to be used for tourist-hotel purposes and could not be sold off in separate units for a period of twenty years. The agreement stipulated that the development plan was compliant with section 13 of Regional Law no. 45/1989 and with the other planning regulations; it certified that the applicant company had paid a deposit of an amount equivalent to the total cost of the amenities. That work was to be paid for by the applicant company, which would also be required to assign 30% of the land free of charge to the municipality for the primary infrastructure (urbanizzazione primaria).
55.  On 31 August 1992 the municipality of Golfo Aranci issued a permit for the primary infrastructure. On 23 November 1992 the municipality issued the building permit for the construction work.
56.  On 19 February 1993, following the entry into force on 22 June 1992 (see paragraph 52 above) of Regional Law no. 11/1992, amending Regional Law no. 45/1989, the regional authority revoked certain permits that had been granted under the previous legislation. The applicant company was not affected.
57.  The work began in 1993. In 1997 eighty-eight housing units, less than one third of the total number, had been built. A number of them had been sold to individuals, subject to a clause stipulating that the property had to remain assigned, for a number of years, for tourist-hotel use.
58.  On 28 January 1995 R.I.T.A. Sarda S.r.l., which was seeking new partners to optimise the project and share the risks, asked the municipal authority whether the sale of the buildings to third parties was compatible with the development agreement. On 14 February 1995 the municipal authority stated that the agreement had been drafted clearly enough; it therefore did not need clarification. It gave a favourable opinion as to the possibility of selling the buildings, but not in single units and provided the intended use of the properties remained unchanged.
59.  On 11 March 1996 the municipal authority, again approached by the applicant company, confirmed the opinion issued on 14 February 1995.
60.  At an unknown date, R.I.T.A. Sarda S.r.l. entered into a preliminary contract of sale with Hotel Promotion Bureau S.r.l. concerning part of the land covered by the development agreement and certain buildings erected in the meantime. In addition, on 15 January 1996, Hotel Promotion Bureau S.r.l. entered into an agreement (contratto di appalto) with R.I.T.A. Sarda S.r.l. under which the latter undertook to carry out construction work on the land forming the object of the preliminary contract of sale.
61.  With a view to becoming the owner of the land and buildings, on 26 February 1997 Hotel Promotion Bureau S.r.l. also signed agreements with a travel agent for the purpose of renting out units on a weekly basis.
62.  On 22 October 1997 R.I.T.A. Sarda S.r.l. sold to Hotel Promotion Bureau S.r.l. 36,859 sq. m of land and the buildings known as “C2”, namely sixteen units for residential-tourist use. In addition to the buildings R.I.T.A. Sarda S.r.l. assigned the construction rights to Hotel Promotion Bureau S.r.l. The price of the transaction was fixed at 7,200,000,000 Italian lire (ITL), equivalent to 3,718,489.67 euros (EUR).
63.  In November 1997 R.I.T.A. Sarda S.r.l. was the owner of sixteen housing units and the plots of land covered by the site development plan, with the exception of plot no. 644 and those previously sold to Hotel Promotion Bureau S.r.l., which was the owner of the land it had purchased and of sixteen units.
64.  On 26 March 1998 the municipal authority approved the transfer (voltura) of the building permit concerning the land and buildings purchased by Hotel Promotion Bureau S.r.l.
65.  On 3 April 2006, further to a request by R.I.T.A. Sarda S.r.l. for a planning certificate in respect of the relevant property for the period 1990‑1997, the municipal authority stated that the development agreement signed with R.I.T.A. Sarda S.r.l. and the permits granted were compatible with the planning regulations in force at the material time, and in particular with Regional Law no. 45/1989, and it therefore considered that the offence of unlawful site development was not made out in the circumstances.
66.  In 1997 the public prosecutor of Olbia opened a criminal investigation in respect of Mr M.C. and Mr L.C., the legal representatives of the applicant companies. They were suspected of a number of offences, including that of unlawful site development within the meaning of section 20 of Law no. 47/1985 for building too close to the sea and without planning permission, together with fraud for changing the intended use of the properties in breach of the development agreement.
67.  On 20 November 1997 a court order restraining disposal of property was imposed on the land and buildings.
68.  In a decision of 17 January 2000 the Sassari District Court returned the land and buildings to their rightful owners.
69.  In a judgment of 31 March 2003 the Olbia District Court acquitted M.C. and L.C. on the merits in respect of all the offences, with the exception of that of unlawful site development, the prosecution of which was declared statute-barred.
70.  Having regard to the entry into force of Regional Law no. 11 of 1992 (see paragraph 52 above) and the new minimum distance from the sea introduced therein, the District Court took the view that the municipality of Golfo Aranci should never have issued the building permits and that the previously issued authorisations could not legitimise the situation. The building permits were thus in breach of the law or, at least, ineffective (inefficaci). Although erected in accordance with the permits issued by the municipal authority, the constructions were thus incompatible with the statutory provisions and their existence thus constituted unlawful site development. In addition, the sale of the housing units to individuals cast doubt on their continued use for tourist-hotel purposes and this change of purpose also placed the buildings in breach of the law. In conclusion, the District Court ordered the confiscation of the property previously placed under a restraining order and the transfer of ownership to the municipality of Golfo Aranci within the meaning of section 19 of Law no. 47/1985.
71.  As regards, in particular, the charge of fraud, the court took the view that the offence was not made out because there had been no financial loss to the municipality, since the cost of the infrastructure work remained the same even if the intended use changed. In addition, the mental element, that is to say the existence of intent to defraud the municipality, had not been proved in view of the fact that the sale had been carried out as a result of the financial difficulties of R.I.T.A. Sarda S.r.l. Moreover, the court pointed out that the municipal authority had issued the company with a favourable opinion as regards the sale of the buildings.
72.  In a judgment of 11 October 2004 the Cagliari Court of Appeal upheld the Olbia District Court’s finding of dismissal (non doversi procedere) in respect of the offence which was statute-barred and reiterated that the municipality of Golfo Aranci should not have issued the building permits, which were illegal and in any event ineffective. The constructions erected were de facto incompatible with the regional legislation prohibiting them. In addition, between March 1995 and November 1997 most of the housing units had been sold off, thus changing their intended use. As to the charge of fraud, the Court of Appeal upheld the acquittal of the applicant companies’ legal representatives on the basis of the same considerations, on this point, as those of the District Court. It confirmed the confiscation order.
73.  Mr M.C. and Mr L.C. appealed on points of law but their appeal was dismissed by the Court of Cassation in a judgment of 15 February 2007.
74.  According to the information provided by the Government, on 29 July 2015 the individual purchasers of the confiscated property still retained full possession. Shortly before that, on 21 May 2015, a resolution of the municipality of Golfo Aranci had acknowledged the genuine interest of the community in keeping the confiscated complex, referring in particular to the possibility of using the housing to cope with situations of urgency in the event that the local authorities should decide to assign the use of the property, directly or indirectly, for rent by persons with low income.
75.  The company Falgest S.r.l. and Mr Filippo Gironda were the co‑owners, each with a 50% interest, of a plot of land at Testa di Cane and Fiumarella di Pellaro (Reggio di Calabria) with a total surface area of 11,870 sq. m. The land-use plan provided solely for the possibility of building hotel-type residential complexes for tourists on that land.
76.  On 12 October 1994 the applicants applied for a building permit to erect a tourist residential complex consisting of forty-two houses and sports facilities.
77.  On 15 September 1997 the municipality of Reggio di Calabria issued the building permit.
78.  After verification by the municipality, a number of variations from the plan were noted. The municipality ordered the suspension of the work on 26 January 1998.
79.  On 29 January 1998 the applicants filed an amended plan (variante in corso d’opera), which provided for fewer houses (forty instead of forty‑two) and restricted the construction area. This amended plan sought to regularise the work as already carried out, within the meaning of Law no. 47/1985.
80.  On 10 February 1998 the mayor of Reggio di Calabria cancelled the order suspending the work on the ground that the discrepancies in relation to the initial construction project could be regularised by means of the amended plan submitted in respect of ongoing work under section 15 of Law no. 47/1985.
81.  On 1 October 1998 the inspector of the municipality of Reggio di Calabria noted that the work was in conformity with the amended plan. The work was pursued.
82.  In 2002 the public prosecutor of Reggio di Calabria opened an investigation in respect of Mr Gironda, in his capacity as co-owner of the property, and five others: a director of the company, two signatories to the development project and two foremen. They were all suspected of committing a number of offences, in particular that of unlawful site development within the meaning of section 20 of Law no. 47/1985.
83.  In a judgment of 22 January 2007 the Reggio di Calabria District Court acquitted all the defendants on the merits (perché il fatto non sussiste) in respect of all the charges, except for the offence of unlawful site development, the prosecution of which it declared statute-barred. The court noted that the project had provided for the construction of residences for hotel-type tourist accommodation. However, the structural specifications of the buildings (caratteristiche strutturali) and the evidence suggested that the real purpose of the project was the sale of houses to individuals, thus casting doubt on the intended hotel-type tourist use. This change of purpose rendered the site development unlawful. In conclusion, the court ordered the confiscation of the land and buildings and the transfer of the property to the municipality of Reggio di Calabria under section 19 of Law no. 47 of 1985.
84.  In a judgment of 28 April 2009 the Reggio di Calabria Court of Appeal acquitted the applicants on the merits (perché il fatto non sussiste) in respect of all the charges, including that of unlawful site development. It revoked the confiscation of the property and ordered its return to the owners.
85.  The Court of Appeal took the view, in particular, that the approved project was compatible with the land-use plan and the planning regulations. Given that there had been no preliminary or final contract of sale, there was no evidence of any change in the purpose of the constructions and therefore no unlawful development.
86.  In a judgment of 22 April 2010, deposited in the Registry on 27 September 2010, the Court of Cassation quashed the judgment of the Court of Appeal without remitting it, finding that the change in purpose of the constructions was proved by statements made by third parties and by documents in the file. For the Court of Cassation, the offence of unlawful site development (the prosecution of which was statute-barred, entailing the dismissal of the case) had thus indeed been knowingly committed by the defendants. Consequently, the property in question again became subject to the confiscation order made at first instance by the Reggio di Calabria District Court. The acquittals were maintained.
87.  According to an expert’s report of 5 May 2015, the expert having been appointed by the applicants, the complex confiscated from the latter was in an advanced state of abandonment and neglect. In the applicants’ submission, the municipal authority, which was the owner of the property, had not carried out any work to keep the open spaces maintained.