FOURTH SECTION

CASE OF CURMI v. MALTA

(Application no. 2243/10)

JUDGMENT
(Just satisfaction)

STRASBOURG

9 July 2013

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 Curmi v. Malta,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	Ineta Ziemele, President,
	Päivi Hirvelä,
	George Nicolaou,
	Ledi Bianku,
	Zdravka Kalaydjieva,
	Krzysztof Wojtyczek, judges,
	David Scicluna, ad hoc judge,
and Françoise Elens-Passos, Section Registrar,
Having deliberated in private on 18 June 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 2243/10) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Maltese national, Ms Helen Curmi (“the applicant”), on 22 December 2009.
2.  Mr V. De Gaetano, the judge elected in respect of Malta, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber accordingly appointed Mr David Scicluna to sit as an ad hoc judge (Rule 29 § 1(b)).
3.  In a judgment delivered on 22 November 2011 (“the principal judgment”), the Court held that in view of the delay in instituting the relevant proceedings and the fact that at the date of that judgment, twenty‑three years after the taking of the land, the applicant had not been awarded, let alone paid, any compensation for it, the applicant had been made to bear an excessive individual burden. There had accordingly been a violation of Article 1 of Protocol No. 1 to the Convention (Curmi v. Malta, no. 2243/10, §§ 48-49, 22 November 2011). The Court also found that there had been a violation of Article 6 § 1 of the Convention on account of the fact that the applicant had been denied and continued to be denied access to a court for the determination of the compensation due to her (ibid., § 57).
4.  Under Article 41 of the Convention, the applicant sought just satisfaction of 3,700,930 Euros (EUR) in respect of pecuniary damage. This included EUR 3,141,881 for loss of annual revenue from the planned project of a yacht marina and restoration works on the land, and EUR 559,049, representing the value of the land in 2006, in the event that it was not returned to her. She further claimed EUR 24,000 in compensation for non-pecuniary damage.
5.  Since the question of the application of Article 41 of the Convention, in so far as it related to pecuniary damage in relation to the compensation for the expropriation of the applicant’s land, and for non-pecuniary damage, was not ready for decision, the Court reserved it and invited the Government and the applicant to submit, within three months of the date on which the judgment became final, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (ibid., § 65, and point 5 of the operative provisions). It further dismissed the claims in relation to loss of revenue on account of the expansion of the yacht marina, and the alleged costs in relation to restoration works (ibid., § 63), but awarded EUR 4,500 in respect of costs and expenses (ibid., § 68)
6.  The applicant and the Government each filed observations.
THE LAW
7.  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.”
A.  Damage
1.  The parties’ submissions
8.  The applicant claimed EUR 1,678,670 for pecuniary damage, representing the compensation due for the expropriation of her land. The sum, according to an architect’s evaluation, represented (in rounded values) the value of the land in its deteriorated state in 2006, namely EUR 560,000, plus EUR 70,000 for necessary maintenance works, an added value of EUR 70,000 following the restoration works, EUR 84,000 increase in the value of land between 2006-2012 (given the demand for marinas) and another EUR 896,000 reflecting the potential of the land for development into an ecologically friendly marina.
9.  The applicant stated that she failed to understand why a property which was supposed to be of world ecological importance should be assessed as low‑value wasteland by the Government for the purposes of compensation, and why, in the light of its ecological importance, a polluting power station with its own breakwater (which allegedly raised ecological concerns) had been built in the vicinity. The applicant further reiterated that the value of the land at the time of the taking had been much higher than its current value, since it had fallen into a state of neglect. Thus, the compensation had to take account of the losses in terms of current value if restored and should be calculated using present-day values. The applicant further reiterated that the land had had development potential as an eco-friendly yacht marina, as it was strategically placed in the bay opposite the Malta Freeport. Proof of this was the fact that, according to the applicant, the adjacent lands had also been expropriated by the Government and were being used as a marina. Moreover, she noted that, according to an architect’s report, a small portion of the land at issue in the present case had been used to build a road and thus that part of the land should attract compensation as building land. The applicant further considered that the interest provided by the law was not sufficient to make good for the years without compensation. The law provided for 5 % interest on the average between the value of the land at the time of the taking and its value at the time of the transfer by title of absolute purchase.
10.  The applicant also claimed EUR 24,000 for non-pecuniary damage on account of the psychological suffering caused by the violations found.
11.  The Government submitted that, taking into account the use of the property, its classification in terms of law, its size, and the market value of similar properties in the light of the current market situation, and given that the land had ecological but not commercial value and that it could only be used as a nature reserve, the current market value of the property as assessed by a Government-appointed architect was EUR 75,000. The Government submitted that, despite the Court’s case-law holding that the current market value was only due in cases of de facto or constructive expropriations, as in cases of the same type as Guiso-Gallisay v. Italy ((just satisfaction) [GC], no. 58858/00, 22 December 2009), given that in the instant case no Notice to Treat had been issued to date, in this particular case they were ready to pay the current market value in compensation for the transfer of the ownership of the land at issue from the applicant to the Government.
12.  The Government submitted that the payment of the said amount of compensation would also cover any non-pecuniary damage.
2.  The Court’s assessment
13.  The Court has already concluded in its principal judgment that, in view of the fact that domestic proceedings relating to the payment of compensation had still not been instituted more than twenty years after the land was taken, it would be unreasonable to wait for the outcome of such proceedings (see Curmi, cited above, § 65). Thus, the Court must now determine the compensation due for the applicant’s land measuring 13,557 sq. m, a claim in respect of which she was denied access to court.
14.  The Court notes that the taking in the applicant’s case was not unlawful and did not lack public interest (see Curmi, cited above, §§ 43-44). Thus, it was not the inherent unlawfulness of the taking of the land, that was at the origin of the violation found under Article 1 of Protocol No. 1, but rather the delay in instituting the relevant proceedings and the fact that at the date of the principal judgment, twenty-three years after the taking of the land, the applicant had still not been awarded any compensation for the expropriated land.
15.  In such cases, in determining the amount of adequate compensation the Court must base itself on the criteria laid down in its judgments regarding Article 1 of Protocol No. 1, according to which a deprivation of property without payment of an amount reasonably related to its value would normally constitute a disproportionate interference which could not be considered justifiable under Article 1 of Protocol No. 1 (see James and Others v. the United Kingdom, 21 February 1986, § 54, Series A no. 98), and a total lack of compensation may be considered justifiable only in exceptional circumstances. The provision does not, however, guarantee a right to full compensation in all circumstances, since legitimate objectives of “public interest” may call for reimbursement of less than the full market value (see The Holy Monasteries v. Greece, 9 December 1994, § 71, Series A no. 301-A, and Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 94, ECHR 2005‑VI).
16.  The Court considers that the compensation in the present case should be based on the lines of Schembri and Others v. Malta ((just satisfaction), no. 42583/06, § 18, 28 September 2010). Thus, the sum to be awarded to the applicant should be calculated on the basis of the value of the land at the time of the taking, and be converted to the current value to offset the effects of inflation, plus simple statutory interest applied to the capital progressively adjusted. Since in the present case the applicant has not yet received any payment at the national level, no such deduction is necessary.
17.  The Court notes that the applicant has not submitted any evaluation or suggestion as to what the value of the land was at the time of the taking, opting instead to claim market values or the cost of restoration where this was not called for and to insist on the potential for development despite the fact that the Court found in its principal judgment that the expansion of the yacht marina did not reflect the realities of the situation and did not take account of the nature of the land and its surroundings or ecological value (§ 63). In particular, the submissions made at this stage of the proceedings in reference to the fact that adjacent land had also been used by the Government for the purposes of a marina, together with the reports attached, continue to reinforce the idea that the specific land at issue may not be used for such purposes given its ecological value. The Court further notes that the Government have also failed to submit any estimate as to the value of the land at the time of the taking (or the relevant calculation to bring it up to its present-day value taking account of levels of inflation), opting instead to make a global offer in the case.
18.  Despite the lack of detailed information from the parties as to the value of the land at the time of the taking, which constitutes the basis for the calculation according to the applicable Convention case-law, the Court notes that it appears from the applicant’s architect’s report, attached to her submissions, that according to the records of the Lands Department the land at issue was valued at EUR 5,870 (including a structure assessed at EUR 815) in 1988. The Court notes that on the basis of this estimate, a calculation based on its case-law would result in a sum lower than that which the Government consider appropriate as compensation for the expropriation of the applicant’s land.
19.  In these circumstances, the Court does not find it appropriate to award that lower sum but considers it reasonable to award the applicant EUR 75,000 in respect of pecuniary damage for the expropriation of the said land.
20.  The Court considers that the applicant must have experienced frustration and stress having regard to the nature of the breaches found in the present case and thus awards the applicant EUR 10,000 in respect of non-pecuniary damage.
B.  Default interest
21.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Holds
(a)  that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention:
(i)  EUR 75,000 (seventy-five thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii)  EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

2.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 9 July 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Françoise Elens-Passos	Ineta Ziemele
	Registrar	President