AS TO THE ADMISSIBILITY OF
by Agnes GERA DE PETRI TESTAFERRATA BONICI GHAXAQ
The European Court of Human Rights (Fourth Section), sitting on 3 November 2009 as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Nebojša Vučinić, judges
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 28 June 2007,
Having deliberated, decides as follows:
The applicant, Ms Agnes Gera de Petri Testaferrata Bonici Ghaxaq, is a Maltese national who was born in 1949 and lives in Balzan, Malta. She is represented before the Court by Dr I. Refalo, a lawyer practising in Valletta.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background of the case
The applicant is the owner of a property, known as Palazzo Bonici, in Valetta. The property had been damaged during the Second World War and the applicant’s ancestors, from whom she inherited the property, had at the time applied to the Damage Commission to obtain the necessary funding to have the property restored.
In 1958 the then Colonial Government issued an order taking control of the property under title of possession and use, that is, a forced temporary taking of property subject to the payment of annual compensation, known as a “recognition rent”, to the owners.
Despite this order, the property was left unused until 1972, during which time it deteriorated considerably.
In 1972 the Government commenced works to repair the property with a view to using it in conjunction with the Manoel Theatre situated nearby.
On 5 August 1976 the Government issued a “notice to treat” by which the owner was informed that the compensation offered by way of recognition rent amounted to 210 Maltese Liras (MTL – approximately 490 euros (EUR)). The applicant rejected the offer and in the same year proceedings were initiated before the Land Arbitration Board (“LAB”). These proceedings were suspended sine die on 10 October 1996 and were never concluded (see annex for a detailed chronological list of hearings in the proceedings). The applicant submitted that even if these proceedings had been concluded, the LAB would have been unable to establish a fair rent reflecting market values, since it was bound by the law to assess rent on the basis of 1914 rental values.
After repairing the property the Government allocated it and entrusted its management to the Manoel Theatre Management Committee (“MTMC”), the organ of the Ministry of Culture and Education which administers the Manoel Theatre. The latter leased out the property to a number of commercial entities, including offices, cafeterias, reception halls, a restaurant and a publishing house, which paid rent to the MTMC.
2. Proceedings before the Civil Court in its constitutional jurisdiction
In 1996 the applicant instituted constitutional redress proceedings complaining under Articles 6 and 14 of the Convention and Article 1 of Protocol No.1 to the Convention. She complained that the property, estimated at the time to be worth MTL 880,000 (approximately EUR 2,050,000), was not used for a public purpose, that she had not been offered fair compensation, that the proceedings pending before the LAB were taking an unreasonably long time to be decided and that she had been discriminated against vis-à-vis other property owners who, unlike her, had their properties expropriated by outright purchase and not subject to the less favourable forced rents. She requested the court to grant adequate redress and to pay damages.
On 18 January 1999 the Civil Court (First Hall) found for the applicant. It declared the taking null and void, as the property was not being used for a public purpose, and therefore contrary to the Convention. It further found a violation of the applicant’s right to a fair hearing within a reasonable time. It considered that the period to be taken into account started running on 25 February 1958, the date when the applicant’s right to compensation arose, and had not yet ended 40 years later. It noted that it took the Government 18 years to issue a “notice to treat” without which compensation proceedings could not be initiated. This, together with the lack of initiative of the Commissioner of lands to pursue those proceedings, was enough to consider that the applicant had suffered a serious prejudice, incompatible with Article 6 of the Convention, over the forty years she had been left without compensation. It declared that it was not necessary to examine the Article 14 complaint. The issue of payment of damages in respect of the violation of Article 6 (which depended on the value of the property, the estimated value of which was not contested by the Government) was reserved.
3. Proceedings before the Constitutional Court
The Government appealed against the above-mentioned judgment.
The applicant submitted that during those proceedings, lasting 8 years, the judges were replaced several times and there had been numerous adjournments.
On 8 January 2007 the Constitutional Court upheld the first-instance judgment in part. It held that there had been a violation of Article 1 of Protocol No.1 to the Convention, in that a proper balance had not been reached between the private interest and the public need, particularly in view of the use that was being made of the building. In the light of the compensation being received by the applicant and the fact that she had been deprived of her property for nearly fifty years, the applicant had been made to bear a disproportionate burden. It declared the Governor’s declaration of 1958 null and void and ordered the Government to release the property. The Constitutional Court, however, found that there had not been a violation of Article 6 in respect of the length of the proceedings. It was true that the proceedings had been lengthy, the “notice to treat” having been issued only 18 years after the taking of the property and the proceedings before the LAB having not yet been concluded. However, the court noted that the time to be considered was that after the Convention took effect in respect of Malta, namely on 30 April 1987 (when Malta introduced the right of individual petition) and the applicant had failed to submit evidence of what caused the delay after 1987. As to the Article 14 complaint, the court held that it had been misconceived, since the first-instance court had not examined it. As to the adequacy of compensation, it confirmed that the release of the property was an adequate remedy for the upheld violation of Article 1 of Protocol No.1 to the Convention, and the reservation of the issue of compensation by the first court was related to the Article 6 complaint, which had not been upheld on appeal.
4. The circumstances after the Constitutional Court judgment
On an unspecified date following this judgment, the applicant obtained an eviction order, against the Government. However, prior to its enforcement, on 22 January 2007, the Government issued a fresh order, this time under title of public tenure in accordance with the Land Acquisition (Public Purposes) Ordinance (“the Ordinance”). Included in the taking were a number of shops and offices adjacent to Palazzo Bonici, of which the applicant owned an undivided share together with third parties. The Government offered an annual recognition rent of MTL 21,000 (approximately EUR 49,000), basing it on section 22 (11) (c) of the Ordinance (see “Relevant Domestic Law” below), without indicating what portion of this amount was due for the applicant’s house of which she was the sole owner.
According to an architect’s valuation, the present day rental value of Palazzo Bonici, excluding the other adjacent property, amounted to MTL 110,000 (approximately EUR 256,000) per year. The market value in the case of sale is MTL 2,200,000 (approximately EUR 5,125,000), but the Government estimate it to be only MTL 1,500,000 (approximately EUR 3,494,000).
5. Ordinary Proceedings
On an unspecified date, the applicant lodged ordinary proceedings (327/07-ATB 10) complaining that the new taking of the property under public tenure had been unlawful, as it was not permissible under the Land Acquisition Ordinance to take property by means of public tenure, if it was not already being used by the Government.
At the request of the Government the eviction order was suspended pending the outcome of those proceedings.
On the date of introduction of this application the proceedings were still pending. Although the Court has not been informed of this by the applicant, it appears from the Maltese Courts’ website that the Civil Court, in its ordinary jurisdiction, gave judgment in the case on 11 November 2008. The latter held that the taking of the property by public tenure had been ultra vires and was therefore null and void. An appeal was lodged on 19 November 2008 and therefore the case is still pending.
6. The second Constitutional Proceedings
On an unspecified date the applicant lodged further constitutional redress proceedings (23/07 - ATB 10 A) claiming that the taking of the property under public tenure breached Articles 6 and 14 of the Convention and Article 1 of Protocol No.1 to the Convention.
She claimed that the taking had not been in the public interest as the property was mainly being used for commercial purposes in relation to the Theatre, even though the Government had at its disposal other properties in the vicinity which could have served the same purpose. She also claimed that the inadequate compensation offered by the Government was arbitrary and not in accordance with the law. Compensation for the taking of a property under public tenure had to be calculated on the basis of section 27 (13) of the Ordinance and not section 22 (11) (c), which applied where property taken under “public tenure” was converted by absolute purchase (see the relevant domestic law part). Although it could be supposed that the Government’s offer amounted to more than what was applicable by law, it did not reflect the real current market value, since calculations were restricted to rental values applicable in 1939. Even assuming that the offer reflected compensation for Palazzo Bonici alone and not the adjacent properties, it still represented a fifth of its real value on the market; therefore, it did not constitute adequate compensation and the applicant was being made to bear an excessive burden. She further claimed that the decision to take her property under public tenure had been arbitrary and discriminatory. At the time only four other properties had been taken under this title, as opposed to outright purchase. All these properties had already been in the possession of the Government under a different title and were all related to slum clearance and housing projects, unlike the applicant’s. Finally, she complained that the taking was in breach of Article 6, in that she was not given a fair hearing within a reasonable time, as she had no real and effective possibility of having the value of her property determined by a court. Notwithstanding the Constitutional Court judgment in her favour, in these circumstances the applicant remained without an effective remedy.
At the time of lodging the application the proceedings were still pending. It appears from the Maltese Courts’ website that these proceedings are to date still pending at first instance.
7. The compensation proceedings
Meanwhile, on 3 April 2007, the applicant filed an application (537/1996) before the Civil Court (First Hall) for determination of the compensation owed to her as a result of the judgment of 8 January 2007. During these proceedings the Government argued that the case had now been closed and no compensation was due.
At the date of introduction of this application these proceedings were still pending.
B. Relevant domestic law
Section 22 (11) of the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta, reads as follows:
“The compensation due for the acquisition by absolute purchase of any land, and the sum to be deposited in accordance with this article shall be:
(c) in the case of conversion from public tenure into absolute purchase a sum arrived at by the capitalisation at the rate of one point four per centum of the annual recognition rent due under the provisions of this Ordinance.”
Section 27 of the Ordinance relates to the assessment of compensation by the Land Arbitration Board. Subsection 13, reads as follows:
“The compensation in respect of the acquisition of any land on public tenure shall be equal to the acquisition rent assessable in respect thereof in accordance with the provisions contained in subarticles (2) to (12), inclusive, of this article, increased (a) by forty per centum (40%) in the case of an old urban tenement and (b) by twenty per centum (20%) in the case of agricultural land.”
b. She further complained that she had been denied access to a court to assess the amount of compensation due to her for the second taking of the property by the Government.
b. She further complained that the taking of the property for the second time suspended the enforcement of the judgment in her favour.
c. Lastly, the applicant complained that the second taking of the property under public tenure deprived her of a remedy which could grant her adequate compensation, the latter having been established in an allegedly capricious manner unrelated to the parameters set by the law for determining rental values.
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
a. As to the complaint that the proceedings related to the first taking of the applicant’s property had not been heard within a reasonable time, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
b. In respect of the applicant’s complaint that she had been denied access to a court, the Court notes that the complaint is related to the lack of ordinary remedies that would have allowed her to contest the amount of compensation awarded, particularly in that, even if such remedies were provided, they would still not provide her with adequate compensation. The Court notes that the substance of this complaint has been brought before the domestic constitutional jurisdictions in the applicant’s second set of constitutional proceedings. As stated by the applicant, these proceedings are still pending.
It follows that this complaint is premature and must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of 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.”
The Court notes that on an unspecified date the applicant filed her second set of constitutional proceedings which consisted, inter alia, of the complaint put before this Court. As stated by the applicant, these proceedings are still pending.
It follows that this complaint is also premature and must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
As the facts at issue fall within the ambit of Article 1 of Protocol No. 1, Article 14 is applicable in the instant case.
The Court reiterates that as provided in the first Protocol of the Convention, a State has a right to enforce such laws as it deems necessary to control the use of property. Moreover, Contracting States should enjoy a wide margin of appreciation in order to implement their town and country planning policies (see J. Lautier Company Limited v. Malta (dec.), no. 37448/06, 2 December 2008). In the present case, the Court observes that although the applicant raised the complaint before them, the domestic courts did not express themselves on this matter. However, the Court notes that the applicant failed to substantiate her claim before this Court. She failed to provide evidence that she was in an analogous situation to that of others - that her property was comparable in size, prominence or venue, to adjacent properties or any other properties. Moreover, she failed to explain the ground for any alleged discrimination. The Court considers that in these circumstances there is no indication that the applicant was discriminated against on the first occasion that the property was taken.
It follows that this part of the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
As to the second part of her complaint, namely, that the second taking of the property was discriminatory, the Court notes that this complaint also forms part of the claims she put forward in her second set of constitutional proceedings, which are still pending.
It follows that this part of the complaint is premature and must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
a. As to the complaints that the applicant did not have an effective remedy in respect of the violation of her property rights, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
b. As to the complaint that the taking of the property for the second time suspended the enforcement of the judgment in her favour, the Court considers that this complaint falls to be examined under Article 6 § 1. Execution of a judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 (see Hornsby v. Greece, judgment of 19 March 1997, Reports 1997-II, p. 510, § 40). While it may be accepted that Contracting States may, in exceptional circumstances and, by availing themselves of their margin of appreciation to control the use of property, intervene in proceedings for the enforcement of a judicial decision, the consequence of such intervention should not be that execution is prevented, invalidated or unduly delayed or, still less, that the substance of the decision is undermined (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 74, ECHR 1999 V).
The Court notes in this connection that on 8 January 2007 the Constitutional Court held that there had been a violation of Article 1 of Protocol No.1 to the Convention, it declared the Governor’s declaration of 1958 null and void and ordered the Government to release the property. The applicant obtained an eviction order. However, before the State ceded possession, on 22 January 2007, the Government issued a fresh order for the taking of the property and the applicant did not regain possession.
The Court notes that the matters of which complaint is made are indissociably linked to the applicant’s complaints currently pending before the Constitutional Court <<in which she contests the second taking of her property. It follows that this complaint is premature and must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
c. As to the complaint that the taking of the property under public tenure deprived her of a remedy which could provide her with adequate compensation, the Court reiterates that, in such cases, Article 6 § 1 constitutes a lex specialis in relation to Article 13. It further notes that this complaint is, in substance, the same as that aired above under Article 6 which the Court has declared inadmissible. It follows that for the same reasons, this complaint is premature and must be rejected for non exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the length of proceedings, the applicant’s property rights in respect of the first taking and the lack of an effective remedy in respect of the first taking of the applicant’s property;
Declares the remainder of the application inadmissible.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
List of hearings before the Land Arbitration Board