CEDH · CASELAW;COMMUNICATEDCASES;ENG — 29 janvier 2025

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 17 February 2025   FIRST SECTION Application no. 12040/22 PENELOPE SPV S.R.L. against Italy lodged on 23 February 2022 communicated on 29 January 2025 SUBJECT MATTER OF THE CASE The application concerns the deprivation of the effects of the mortgage ( ipoteca ) registered in favour of the applicant company, as a consequence of the acquisition without compensation by the municipality ( acquisizione di diritto al patrimonio del comune ) of the immovable property to which the mortgage was related. In 2006 company T.R. obtained a loan from a bank and secured it with a mortgage on a housing complex and on the adjoining area that it owned. The mortgage was entered in the land register on 25 August 2006. On 30   September 2009 the municipality, considering that the complex had been built with significant differences from the construction covered by the building permit, ordered its demolition, notifying T.R. Following T.R.’s failure to comply with the demolition order, on 1   March 2011 the complex was acquired by the municipality without compensation pursuant to Article 31 of Presidential Decree no. 380 of 6 June 2001. The acquisition was entered in the land register on 25 March 2011. According to the settled domestic practice (see, among many other authorities, Court of Cassation’s judgment no. 23453 of 6 October 2017), the acquisition deprives the mortgage of any effect. The bank, which had taken knowledge of the acquisition within a procedure to obtain the foreclosure of the complex, unsuccessfully challenged the municipality’s orders before the Regional Administrative Court, which denied it standing. In 2018 the applicant company – a debt-collection company – took over the credit owned by the bank towards T.R. and appealed against the Regional Administrative Court’s decision to the Consiglio di Stato . By judgment no.   5997 of 2021 the Consiglio di Stato dismissed the appeal, considering that the applicant company had failed to demonstrate the existence of grounds to set aside the acquisition or the underlying municipality’s orders. Relying on Article 6 § 1 of the Convention, the applicant company complains that the burden of proof placed on it by the Consiglio di Stato was impossible to discharge, given that it had no relation with the unauthorised construction. The applicant company further complains that the acquisition, and its consequent effects on the mortgage, amounted to a disproportionate interference with its rights under Article 1 of Protocol No. 1 to the Convention. Lastly, relying on Article 13 of the Convention, the applicant company complains of the absence of an effective remedy in respect of the alleged violation of Article 1 of Protocol No. 1 to the Convention. QUESTIONS TO THE PARTIES 1.     Did the applicant company have a fair trial in the determination of its civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, did the applicant company have effective access to a court, having regard to the burden of proof imposed on it by the Consiglio di Stato ?   2.     Has there been an interference with the applicant company’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No.   1 to the Convention? 2.1.     If so, was the interference necessary and proportionate to the aim pursued, as required by Article 1 of Protocol No. 1 (see Depalle v. France [GC], no. 34044/02, § 83, ECHR 2010; Beyeler v. Italy [GC], no. 33202/96, § 114, ECHR 2000-I; and Lekić v. Slovenia [GC], no. 36480/07, §   110, 11   December 2018)? 2.2.     Was the applicant company afforded a reasonable opportunity of putting its arguments before the domestic courts ( Lekić , cited above, § 85, in fine )?   3.     Did the applicant company have an effective domestic remedy for its complaint under Article 1 of Protocol No. 1, as required by Article 13 of the Convention (see Iatridis v. Greec e [GC], no. 31107/96, § 65, ECHR 1999-II, and Budayeva and Others v. Russia , nos. 15339/02 and 4 others, § 196, ECHR   2008 (extracts))?   The parties are invited to answer the questions taking into account the findings of Constitutional Court’s judgment no. 160 of 6 June 2024.