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FOURTH
SECTION
CASE OF SCHEMBRI AND OTHERS v. MALTA
(Application
no. 42583/06)
JUDGMENT
(merits)
STRASBOURG
10
November 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Schembri and Others
v. Malta,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ján
Šikuta,
Ledi Bianku,
Mihai Poalelungi,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 20 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42583/06) against Malta lodged
with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by Ms Rosaria Schembri, Mr Saviour Schembri, Mr Carmel Schembri,
Mr Anthony Schembri, Mr Emanuel Schembri, Ms Michelina Farrugia,
Ms Catarina Formosa, Ms Mary Fenech, Ms Rosanna Mula,
Ms Anna Zammit and Sr Rosangela Schembri (“the
applicants”), all Maltese nationals, on 4 October 2006.
- The
applicants were represented by Dr T. Azzopardi, a lawyer practising
in Valetta. The Maltese Government (“the Government”)
were represented by their Agent, Dr S. Camilleri, Attorney General.
- The
applicants complained under Article 1 of Protocol No.1 to the
Convention that the expropriation of their land had not been
necessary for a public purpose and that the compensation awarded was
not fair and adequate. They further complained under Article 6 of the
Convention of a violation of the reasonable time requirement.
- On
25 February 2008 the President of the Fourth Section decided to
communicate the complaint concerning the expropriation of the
applicants' land under Article 1 of Protocol No.1 to the Government.
It was also decided to examine the merits of the application at the
same time as its admissibility (Article 29 § 3).
- On 14 October 2008 the applicant requested
that an oral hearing be held in the case. On 20 October 2009, the
Court considered this request. It decided that having regard to
the materials before it, an oral hearing was not necessary.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1918, 1944, 1946, 1947, 1939, 1943, 1950,
1949, 1955, 1965 and 1940 respectively. They all live in Ghaxaq
except for the last applicant who lives in Mosta.
A. The background of the case
- The
applicants are owners of two plots of land (“A and B”) in
Ghaxaq, Malta. Plot A measures 71.5 sq.m and plot B measures
1,930.3 sq.m.
- By
a Governor's declaration of 15 February 1974, the Government gave
notice of expropriation of both plots of land. It was declared that
the land was required for a public purpose and was to be acquired by
outright sale. At the relevant time, this declaration did not
transfer the ownership of the land to the Government. In particular,
it was provided that the Commissioner of Lands should serve a copy of
the Presidential Declaration on the owner of the land, together with
a “notice to treat” informing him or her about the amount
that the Commissioner was willing to pay.
- By
a Notice to Treat of 19 November 1974 the applicants were offered the
sum of 81 Maltese liras (MTL – approximately 189 euros (EUR))
for plot A and MTL 2,905 (approximately EUR 6,762) for plot B.
Consequently, the procedure to compensate the applicant and to
transfer the legal ownership of the land to the legal authority was
initiated.
- The
applicants refused the offer and on an unspecified date in 1990
proceedings were instituted before the Land Arbitration Board
(“LAB”). On 13 October 1995 the LAB ordered the
applicants to transfer the two plots of land to the Government by
outright sale and established the amount of compensation to be paid
to the applicants in the sum of MTL 277.75 (approximately EUR 647)
for Plot A and MTL 7,099.94 (approximately EUR 16,512) for Plot B, in
accordance with the appointed architects' evaluations according to
domestic law. The applicants submitted that according to their
architect's valuation dated January 1993 the land then was worth MTL
105,000 (approximately EUR 243,850).
- The
applicants appealed against this decision to the Court of Appeal,
which on 30 May 1997 declared the appeal null and void as no appeal
could be entered against the decision of the LAB.
- In
the meantime, building permits had been issued by the administration
in respect of all the entire area surrounding the plots of land at
issue; however, the administration had not considered that Plots A
and B could be used for building purposes. The applicants alleged
that from 1974 to 1998 (the year when they instituted constitutional
proceedings, see paragraph 13 below), Plots A and B had not been
utilised for any public purpose. Plot A had been allocated to a
private individual so that he could have a garage and a garden next
to his residence and Plot B had remained unused until 1979, when a
commemorative plaque was placed in a small area of the land. The
remainder had not been utilised by the authorities for twenty-five
years.
B. Proceedings before the Civil Court
- On
18 May 1998 the applicants lodged an application with the Civil Court
(First Hall) in its constitutional jurisdiction claiming that there
had been a violation of Article 1 of Protocol No.1 to the Convention,
in that the property expropriated had not been used for a public
purpose and the amount determined by the LAB did not constitute
adequate compensation for the taking of the property. They further
complained, under Article 6 of the Convention, that the Government,
which alone had the possibility of initiating proceedings before the
LAB in order to determine the amount of compensation due, had waited
sixteen years before instituting these proceedings, in breach of the
reasonable time principle.
- On
29 April 2005 the Civil Court dismissed their complaints under
Article 1 of Protocol No.1 to the Convention. It held that, according
to the evidence produced, the land at issue was used to form part of
a road, more than 90% of it to make a public garden, and the rest for
a bus shelter, a commemorative plaque, a niche and four garages. The
garages were not situated wholly on the expropriated land and
although they were used by private individuals they served the needs
of the adjoining housing estate; the fourth garage contained an
Enemalta (the only producer and distributor of electricity in Malta)
generator. Thus, the expropriated land had been taken for a public
purpose. In respect of the adequacy of the compensation the Civil
Court held that the LAB had determined the amount awarded according
to established objective criteria found in the law, which were not
arbitrary or capricious. Where the amounts were fixed by reference to
objective standards with the possibility for those deprived of the
property to be represented in the procedure, it was not its duty to
establish or revise the value so quantified.
- The
Civil Court upheld, however, a violation of the reasonable time
principle under Article 6 of the Convention, finding that there had
been an excessive delay regarding the commencement of proceedings
before the LAB and awarded the applicants jointly MTL 300
(approximately EUR 700).
C. Proceedings before the Constitutional Court
- On
an unspecified date the applicants appealed to the Constitutional
Court. They claimed that the expropriation had not been effected in
the public interest and that the court had mistaken the land at issue
for another plot of land previously expropriated. They presented a
number of documents in order to support their argument that a mistake
had been made. The site plan exhibited by the applicants indicated
the land which had been expropriated earlier (1969) and which had
then been used to build a bypass, and the plots of land actually at
issue. They further argued that the amount of compensation awarded
was far below its market value. The applicants also requested the
court to vary the amount of compensation awarded by the Civil Court
for the acknowledged Article 6 violation.
- On
6 April 2006 the Constitutional Court dismissed the applicants'
appeal. It upheld the first-instance court's reading of the exhibited
cartographic and photographic evidence; it further maintained that
even if the land had remained unused for a period of time this was
normal in housing estate projects. Even if parts of the land had
eventually been allotted to private individuals this did not render
the taking of the property devoid of a public interest purpose. In
respect of the amount of compensation, the Constitutional Court held
that the estimates provided by the applicants were relatively recent
and based on the current market value which was not always decisive
according to the Strasbourg case-law, whereas the evaluation of the
LAB referred to the real value of the land in 1974, the year when the
land had been expropriated. Consequently this claim was manifestly
ill-founded. As to the last claim, namely compensation for the length
of proceedings, the Constitutional Court noted that, although it
appeared that a request for a variation of the compensation awarded
had been made in the appeal application, this had not been listed as
a ground of appeal.Consequently, it could not take cognisance of the
matter.
II. RELEVANT DOMESTIC LAW
- The
Land Acquisition (Public Purposes) Ordinance (Chapter 88 of the Laws
of Malta) in so far as relevant reads as follows:
Section 3
“The President of Malta may by declaration signed
by him declare any land to be required for a public purpose.”
Section 7
“The competent authority may deal with and dispose
of land acquired by it in such manner and subject to such conditions
as it considers expedient having regard to the public interest or
utility.”
Section 17
“Any land which is not a building site shall be
valued for the purpose of determining the compensation payable in the
case of compulsory acquisition as rural land or as wasteland, as the
case may be (...)”
Section 27 (1) (b)
“The value of the land shall,... be taken to be
the amount which the land if sold in the open market by a willing
seller might be expected to realise. Provided that - (i) the value of
the land shall be the value as at the time when the President's
Declaration was served (...)”
- Article
143 of the Code of Organisation and Civil Proceedings (Chapter 12 of
the Laws of Malta) in so far as relevant reads as follows:
“(2) The application for the variation of a
judgment shall contain a reference to the claim and to the judgment
appealed from and shall distinctly state the heads of the judgment
complained of together with detailed reasons for which the appeal is
entered and, in conclusion, shall state, specifically, the manner in
which it is desired that the judgment be varied under each head.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.1 TO THE
CONVENTION
- The
applicants complained that the expropriation of their land had not
been necessary for a public purpose and that the compensation awarded
was not fair and adequate as provided in Article 1 of Protocol No. 1
to the Convention, which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicants submitted that there existed no public purpose in the
present case. They contested the domestic court's assessment of
evidence, submitting that the land, said to be required for a public
purpose in 1974, was not used until 1998, apart from the placement of
a commemorative plaque in 1979. While most of the land remained a
field covered in soil, four units were built and leased to private
individuals, a particular area also allowed for the enhancement of a
private individual's garden and garage. Moreover, while contesting
the necessity of an open space to accompany a housing estate, nothing
made the applicants' land, which was detached from the housing
estate, the appropriate location for the open space required,
especially when it was located just opposite a public garden.
Acknowledging that the concept of public interest found its limits in
the principle of proportionality, they submitted that a fair balance
did not exist since they had been deprived of their property without
adequate compensation.
- In
1995 when the value of the land was assessed, the land had not been
deemed to be suitable for building notwithstanding that all the land
in the vicinity had in the meantime been granted building permits.
Moreover, the value of the land in 1974, when the Notice to treat was
issued by the Government, represented only a fraction of the value of
the property. According to an architect's evaluation the value of the
property in 1995 was MTL 105,000 (approx EUR 244,600) and the current
market value was approximately EUR 2,500 per square metre. The value
awarded by the LAB, although higher than the initial offer, was much
less than the then current market value and a payment of accumulated
interest at the time of transfer would not be a substitute for proper
compensation vis-a-vis the price that the property could fetch
on the open market. Indeed, to date, thirty-four years after the
expropriation, the applicants had not yet received full and fair
compensation. Thus, in the present case the applicants had had to
bear a disproportionate burden.
- The
Government submitted that the expropriation had been effected for the
purpose of the construction and planning of a Government public
garden in connection with a housing estate. Such housing projects had
to be seen as a whole, in that dwellings also required shops and
amenities, parking and open spaces. The land in question was used for
the public purposes identified by the domestic courts, namely a
public garden, the partial provision of a road, a bus stop, and
services to the nearby housing estate. It had been used as a public
open space fronting the Government housing estate from 1978.
Moreover, although the shops built partly on the applicants' land
were run by private individuals, the expropriation had not been
carried out to confer a benefit upon them but to render a service to
the community of the estate and its surroundings. Moreover, in the
field of town planning, the authorities enjoyed a wide margin of
appreciation as to what fell within the concept of public interest.
- The
Government submitted that the price offered for the land was based on
objective criteria in contentious proceedings before the LAB. It was
legitimate to take the value at the date when the land was taken over
(1974) to determine the compensation payable. At the time, the land
at issue was agricultural with little market value. Indeed the
applicants did not submit that the price fixed representing the value
in 1974 was incorrect. They simply argued that they should be awarded
the market value at the time of the proceedings.
- The
Government further submitted that the contract of formal transfer of
the land had not yet been concluded because of the judicial
proceedings brought by the applicants and culminating in the present
application. When the transfer eventually took place, apart from
paying the price established by the LAB, the Commissioner of Lands
would also make good any damage suffered by the owners due to the
lapse of time between the date of the de facto taking of the
land and that of the contract, in the form of interest at 5 % per
annum. The applicants had furthermore been awarded compensation by
the Civil Court in respect of the authorities' delay in commencing
proceedings before the LAB. Thus, the applicants had not been subject
to an excessive individual burden.
2. The Court's assessment
a) Whether there has been interference
- The
Court reiterates that Article 1 of Protocol No. 1 comprises three
distinct rules: “the first rule, set out in the first sentence
of the first paragraph, is of a general nature and enunciates the
principle of the peaceful enjoyment of property; the second rule,
contained in the second sentence of the first paragraph, covers
deprivation of possessions and subjects it to certain conditions; the
third rule, stated in the second paragraph, recognises that the
Contracting States are entitled, amongst other things, to control the
use of property in accordance with the general interest. The three
rules are not, however, “distinct” in the sense of being
unconnected. The second and third rules are concerned with particular
instances of interference with the right to peaceful enjoyment of
property and should therefore be construed in the light of the
general principle enunciated in the first rule”
(see, among other authorities, James and Others v. the
United Kingdom, judgment of 21 February 1986, Series A
no. 98, pp. 29-30, § 37; Iatridis v. Greece
[GC], no. 31107/96, § 55, ECHR 1999-II; and Beyeler v. Italy
[GC], no. 33202/96, § 98, ECHR 2000-I).
- In order to determine whether there has been a
deprivation of possessions within the meaning of the second rule, the
Court must not confine itself to examining whether there has been
dispossession or formal expropriation, it must look behind the
appearances and investigate the realities of the situation complained
of. Since the Convention is intended to guarantee rights that are
“practical and effective”, it has to be ascertained
whether that situation amounted to a de facto expropriation
(see, among other authorities, Sporrong and Lönnroth v.
Sweden, judgment of 23 September 1982, Series A no. 52,
pp. 24-25, § 63, and Vasilescu v. Romania,
judgment of 22 May 1998, Reports of Judgments and Decisions
1998-III, p. 1078, § 51). A taking of property within this
second rule can be justified only if it is shown, inter alia,
to be “in the public interest” and “subject to the
conditions provided for by law”.
- The
Court notes that, it has not been contested that in the present case
there has been a deprivation of possessions within the meaning of the
first paragraph of Article 1 of Protocol No. 1. Indeed the Court
notes that although the transfer had not yet taken effect and that
the applicant was still the owner of the property, the Presidential
Declaration of 1974 officially stated that the property taken from
the applicant was required for a public purpose. Moreover, some use
had been made of the land and it would in practice be impossible for
the applicant to enjoy, sell or develop his property. Under these
circumstances, the Court finds that there had been a deprivation of
possessions within the meaning of the first paragraph of Article 1 of
Protocol No. 1 (see Abdilla v Malta, (dec.) no. 38244/03).
b) Whether the taking was in accordance
with the law
- The
Court reiterates that it has already held that this type of taking in
the Maltese system constitutes an interference with property which
satisfies the requirement of lawfulness (see Abdilla, cited
above). A Presidential Declaration and the taking of an applicant's
land were based on Chapter 88 of the Laws of Malta, which was
accessible and the effects of the Presidential Declaration provided
for therein foreseeable (ibid).
c) Whether the taking was in the public
interest
- The Court reiterates that because
of their direct knowledge of their society and its needs, the
national authorities are in principle better placed than the
international judge to appreciate what is “in the public
interest”. Furthermore, the notion of “public interest”
is necessarily extensive. In particular, the
decision to enact laws expropriating property will commonly involve
consideration of political, economic and social issues.
The Court, finding it natural that the margin of appreciation
available to the legislature in implementing social and economic
policies should be a wide one, will respect the legislature's
judgment as to what is “in the public interest” unless
that judgment is manifestly without reasonable foundation (see Jahn
and Others v. Germany
[GC], nos. 46720/99, 72203/01 and 72552/01, ECHR 2005-VI, § 91,
Immobiliare Saffi v. Italy, [GC], no. 22774/93,
§ 49, ECHR 1999-V; and, mutatis mutandis, Fleri Soler
and Camilleri v. Malta, no. 35349/05, § 65, 26 September
2006). Moreover,
a taking of property effected in pursuance of legitimate social,
economic or other policies may be “in the public interest”
even if the community at large has no direct use or enjoyment of the
property taken (see James and Others v. the United Kingdom,
judgment of 21 February 1986, Series A no. 98, § 45).
33. The
Court notes that the parties before the Court disagreed as to the use
made of the expropriated land. Nonetheless, the domestic courts held
that some use was made of it in the public interest.
- The Court accepts that the respondent State, in
pursuit of its economic and social policies, was entitled to cater
for the needs and interests of the individuals living on a nearby
housing estate. Considering the wide margin of appreciation which the
Contracting States enjoy in similar matters, the interference with
the applicants' rights to peaceful enjoyment of their possessions
cannot be said to have been manifestly without reasonable foundation.
Therefore the proposed transfer of ownership complained of was “in
the public interest” within the meaning of the second sentence
of Article 1 of Protocol No. 1. Whether this public interest aim
was of sufficient weight for the Court to be able to find the
interference proportionate will be examined hereunder.
d) Whether there was proportionality
- Any
deprivation of property must also satisfy the requirement of
proportionality. As the Court has repeatedly stated, a fair balance
must be struck between the demands of the general interest of the
community and the requirements of the protection of the individual's
fundamental rights, the search for such a fair balance being inherent
in the whole of the Convention. The requisite balance will not be
struck where the person concerned bears an individual and excessive
burden (see Sporrong and Lönnroth, cited above, pp.
26-28, §§ 69-74, and Brumărescu v. Romania
[GC], no. 28342/95, § 78, ECHR 1999-VII). Thus, in the
exercise of its power of review the Court must determine whether the
requisite balance was maintained in a manner consonant with the
applicants' right of property (see Abdilla, cited above).
- Compensation terms under the relevant legislation are
material to the assessment whether the contested measure respects the
requisite fair balance and, notably, whether it imposes a
disproportionate burden on the applicants (see Jahn and Others,
cited above, § 94). In this connection, the taking of
property without payment of an amount reasonably related to its value
will normally constitute a disproportionate interference, and a total
lack of compensation can be considered justifiable under Article 1 of
Protocol No.1 only in exceptional circumstances (see The Holy
Monasteries v. Greece, judgment of 9 December 1994, Series A
no. 301-A, p. 35, § 71). However, while it is true that in many
cases of lawful expropriation only full compensation can be regarded
as reasonably related to the value of the property, Article 1 of
Protocol No. 1 does not guarantee a right to full compensation in all
circumstances. Legitimate objectives in the “public interest”,
such as those pursued in measures of economic reform or measures
designed to achieve greater social justice, may call for less than
reimbursement of the full market value (see Urbárska
Obec Trenčianske Biskupice v. Slovakia, no. 74258/01, §
115, ECHR 2007 ... (extracts)).
- It is in the first place for the national authorities,
and notably the courts, to interpret domestic law and the Court will
not substitute its own interpretation for theirs in the absence of
arbitrariness (see Tejedor García v. Spain, judgment of
16 December 1997, Reports 1997-VIII, p. 2796, § 31).
The same applies in respect of calculating values of land and
property (see Panagiotou v. Greece (dec.), no. 38361/03, 3
November 2005).
- The
Court, however, reiterates that the adequacy of the compensation
would be diminished if it were to be paid without reference to
various circumstances liable to reduce its value, such as
unreasonable delay. Abnormally lengthy delays in the payment of
compensation for expropriation lead to increased financial loss for
the person whose land has been expropriated, putting him in a
position of uncertainty (see Akkuş v. Turkey, 9 July
1997, § 29, Reports). The same applies to abnormally
lengthy delays in administrative or judicial proceedings in which
such compensation is determined, especially when people whose land
has been expropriated are obliged to resort to such proceedings in
order to obtain the compensation to which they are entitled (see
Aka v. Turkey, 23 September 1998, § 49, Reports).
- Moreover, bearing in mind the importance of the
consequences of the expropriation for the applicants' property
rights, the Court considers that a careful examination of all
relevant factors by a court dealing with the case was necessary to
ensure that the requirements of Article 1 of Protocol No.1 were
complied with (see Bistrović v. Croatia, no. 25774/05, §
36, 31 May 2007).
- The
Court takes as its starting point that in the present case the taking
did not pursue any pressing public interest objective capable of
justifying less than reimbursement of the market value (compare and
contrast Urbárska Obec Trenčianske Biskupice,
cited above, §120) .
- The
Court notes that, neither the transfer of the land, nor, in
consequence, the payment of compensation, have yet taken place,
thirty-five years after the President's Declaration and the
Government's taking possession of the land. It observes that, as
pointed out by the Government, upon actual transfer of the property
by deed, the applicant will, in accordance with the relevant law, be
entitled to receive a sum equal to the price of the land at the time
when the said declaration had been served, in the present case on 15
February 1974. The Government added that on the date of transfer the
Commissioner of Lands will have to pay interest on the amount so as
to offset, at least in part, the long period for which the applicants
have been deprived of the land.
- The
Court considers that, in respect of a deed of expropriation which has
not yet been concluded thirty-five years after the Government took
over the land, to assess the price of the land for the purposes of
compensation, yet to be paid, in accordance with values applicable
decades before, would not be consonant with the spirit of the
Convention. It follows that the value of the land established in
accordance with the law cannot by itself be considered adequate, in
the applicants' case. The Court notes that to this sum interest of 5%
per annum will be added. However, while acknowledging that the
setting of an interest rate came within the wide margin of
appreciation which the Contracting States enjoy in deciding the terms
and conditions on which compensation is to be paid following an
expropriation (see Aka, cited above, § 47), the Court
considers that the sum, including interest, to be awarded on transfer
would not offset the failure to pay compensation to date and cannot
be decisive in view of the length of all the proceedings already
instituted by the applicants (see, mutatis mutandis, Guillemin
v. France, 21 February 1997, § 56, Reports 1997 I).
- Moreover,
the Court observes that in determining the amount of compensation,
the LAB did not take account of the fact that over twenty years had
elapsed and the applicants had not yet received any compensation.
Similarly, ten years after the LAB's decision, the Constitutional
jurisdictions, while finding a violation of the reasonable time
requirement in respect of the expropriation proceedings and awarding
some compensation to that effect, failed to alter the amount of
compensation for the expropriation or to consider it inadequate on
account of the time which had lapsed.
- The
Court lastly notes that the Government have claimed that the payment
was not completed due to the applicants' institution of
constitutional proceedings. The Court is not convinced that the
acceptance of the sum awarded by the LAB in 1995 would not have
prejudiced any future claims the applicant may have had in its
respect. As to whether such claims would have been reasonable, the
Court observes that while the applicant submitted that the amount
awarded by the LAB in 1995 amounted to far less than the land's
market value, the Government did not comment on the matter and no
information has been provided in relation to this assessment. In
consequence, the Court is unable to determine whether the ensuing
constitutional proceedings in so far as they related to compensation
would have been vexatious or unnecessary.
- However,
in the circumstances of the present case, it is sufficient for the
Court to conclude that by awarding compensation reflecting values
applicable decades before and deferring the payment of such for at
least twenty years until the date of the LAB decision which did not
take into account this delay, the national authorities rendered that
compensation inadequate and, consequently, upset the balance between
the protection of the right to property and the requirements of the
general interest.
- There
has accordingly been a violation of Article 1 of Protocol No.1 to the
Convention in this respect.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained of a violation of the reasonable time
requirement under Article 6 of the Convention. They claimed that they
could still be considered victims in view of the sum awarded by the
domestic courts, which did not constitute adequate compensation for
the violation found.
- The
Court reiterates that a decision favourable to the applicant is not
in principle sufficient to deprive him of his status as a “victim”
unless the national authorities have acknowledged, either expressly
or in substance, and then afforded redress for the breach of the
Convention (see Central Mediterranean Development Corporation
Limited v. Malta, no. 35829/03, § 24, 24 October
2006). The Court observes that the Constitutional Court's
acknowledgment of the excessive length of the proceedings satisfies
in substance the first condition. However, as far as the second
condition is concerned, the Court observes that the domestic court
awarded EUR 700 for a delay of twenty years. Thus, the amount awarded
to the applicants is at least thirty times lower than the amount that
could have been given in Strasbourg (see, for example, Del Bono
and Others v. Italy, no. 52968/99, § 16, 12
February 2002, and Luciani v. Italy, no. 52919/99, § 15,
12 February 2002, where the Court awarded EUR 28,000 with
respect to civil proceedings which lasted more than nineteen years
before one instance). This factor in itself leads to a result that is
manifestly unreasonable, having regard to the Court's case-law. The
Court therefore considers that the redress afforded to the applicants
was insufficient. As the second condition – that of
appropriateness and sufficiency – has not been fulfilled, the
Court considers that the applicants can still claim to be the
“victim” of a breach of the “reasonable time”
requirement in the instant case (see Central Mediterranean
Development Corporation Limited, cited above, §§ 29-30).
- However,
the Court reiterates that the complaints intended to be made
subsequently at the international level should have been aired
before the appropriate domestic courts, at least in substance and in
compliance with the formal requirements and time-limits laid down in
domestic law (see, among many other authorities, Azinas v.
Cyprus [GC], no. 56679/00, § 38, ECHR 2004 III ).
The Court has previously
rejected applications for non-exhaustion of domestic remedies where
the applicant, who was represented by a lawyer, failed to lodge his
constitutional complaint in accordance with the applicable procedural
rules and established practice (Obluk
v. Slovakia,
no. 69484/01, § 62, 20 June 2006) or had not made use of the
constitutional remedy in accordance with the formal requirements, as
interpreted and applied by the Constitutional Court (see Lubina
v. Slovakia,
no. 77688/01, § 63, 19 September 2006).
The Court
notes that in the present case the Constitutional Court refused
to take cognisance of the applicants' attempted appeal on their claim
under Article 6 in view of the manner in which it was put forward
(see paragraph 17, in fine, above). Thus, by their own fault,
the applicants did not provide the Maltese courts with the
opportunity which is in principle intended to be afforded to a
Contracting State by Article 35 of the Convention, namely the
opportunity of addressing, and thereby preventing or putting right,
the particular Convention violation alleged against it (see Azinas,
cited above, § 41). It follows that the applicants failed
to properly exhaust domestic remedies in this respect.
- Consequently,
the complaint must be rejected as inadmissible, in accordance with
Article 35 §§ 1 and 4 in fine of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicants claimed the value of the property in 2008 amounting to EUR
2,200,000, in accordance with an architect's valuation dated 2008
whereby the property was estimated to be worth EUR 1,100 per square
metre, in respect of pecuniary damage and EUR 50,000 in respect of
non pecuniary damage. The applicants also claimed EUR 6,090 for
costs and expenses incurred before the domestic courts and this
Court, covering legal fees of two solicitors.
- The
Government submitted that the applicants had no claim to the
hypothetical increase in value of the land following its taking over
by the Government. The value of the land payable to the applicants is
the value at the time of the taking over, namely in 1974. Moreover,
the sum claimed for non-pecuniary damage was unfounded as the
applicants suffered no particular nuisance and the prolongation of
the issue was mainly the result of their contestation of the
expropriation.
- The Court first observes that it has found that there
has been a violation of the applicants' right to the peaceful
enjoyment of their possessions (see paragraph 45 above). It further
observes that the damage, in the present case, stems from the failure
of the authorities to award adequate compensation also reflecting the
delay in payment, with the consequence that the expropriation has not
yet been concluded and payment today, in accordance with domestic
law, would not represent adequate compensation for the de facto
taking which took place thirty-five years ago.
- Indeed,
according to the Court's standard practice in respect of just
satisfaction, the estimated market value of lawfully expropriated
land is that at the date of the expropriation. That amount will have
to be converted to current value to offset the effects of inflation.
Moreover, interest will have to be paid on this amount so as to
offset, at least in part, the long period for which an applicant
would have been deprived of the land (see Scordino v. Italy
(no. 1) [GC], no. 36813/97, §§ 110, 258, ECHR
2006 ...). Only where the expropriation had been unlawful,
just satisfaction should be in line with the principle of
restitutio in integrum, if this is impossible, compensation
for the loss of property requires an award of the current value of
the land, increased solely by the appreciation brought about by the
existence of the buildings (see Belvedere
Alberghiera S.r.l. v. Italy (just satisfaction),
no. 31524/96, §§ 34-36, 30 October 2003, and
Carbonara and Ventura v. Italy (just satisfaction), no.
24638/94, §§ 36-41, 11 December 2003).
- In
the present case, on the one hand the de jure expropriation
(the deed of transfer) had not yet taken effect, on the other
hand the de facto taking took place in 1974 and the Court has
already established that it consisted of a lawful deprivation of
property (see paragraph 30 above). It follows that the
circumstances of the case do not fit squarely within any of the
above-mentioned categories. Moreover, the Court has been unable to
establish responsibility for the lack of payment after 1995 and the
ensuing failure to conclude the transfer.
- In
these circumstances, the Court considers that the question of the
application of Article 41 is not ready for decision. That
question must accordingly be reserved and the subsequent procedure
fixed, having due regard to any agreement which might be reached
between the respondent Government and the applicants (Rule 75 §
1 of the Rules of Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Article 1 of
Protocol No.1 to the Convention admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No.1 to the Convention;
- Holds unanimously that the question of the
application of Article 41 of the Convention is not ready for
decision;
accordingly,
(a) reserves the said question in whole;
(b) invites
the Government and the applicants to submit, within the forthcoming
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
their written observations on the matter and, in particular, to
notify the Court of any agreement that they may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in English, and notified in writing on 10 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
