(Application no. 42583/06)
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:
David Thór Björgvinsson,
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:
I. THE CIRCUMSTANCES OF THE CASE
A. The background of the case
B. Proceedings before the Civil Court
C. Proceedings before the Constitutional Court
II. RELEVANT DOMESTIC LAW
“The President of Malta may by declaration signed by him declare any land to be required for a public purpose.”
“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.”
“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 (...)”
“(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.”
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.1 TO THE CONVENTION
“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.”
1. The parties' submissions
2. The Court's assessment
a) Whether there has been interference
b) Whether the taking was in accordance with the law
c) Whether the taking was in the public interest
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.
d) Whether there was proportionality
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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