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CURMI v. MALTA - 2243/10 [2011] ECHR 1956 (22 November 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1956.html
Cite as:
[2011] ECHR 1956
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FOURTH
SECTION
CASE OF CURMI v. MALTA
(Application
no. 2243/10)
JUDGMENT
(Merits)
STRASBOURG
22
November 2011
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:
Nicolas Bratza, President,
Päivi
Hirvelä,
George Nicolaou,
Ledi
Bianku,
Zdravka Kalaydjieva,
Nebojša
Vučinić, judges,
David Scicluna, ad hoc
judge,
and Fatoş Aracı,
Deputy Section
Registrar,
Having
deliberated in private on 3 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
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. The
applicant was represented by her son John Curmi, who also
brought domestic proceedings on her behalf. The latter is represented
by Dr I. Refalo, Dr S. Grima and Dr R. Montebello, lawyers
practising in Valletta. The Maltese Government
(“the Government”) were represented by their Agent, Dr
Peter Grech, Attorney General.
3. The
applicant alleged that her property rights under Article 1 of
Protocol No.1 to the Convention had been breached as the taking of
her land had not been effected in the public interest and twenty-one
years after the land was taken she had not received any compensation.
In this respect she complained that no mechanism had been provided
whereby the applicant could have initiated proceedings for
compensation, contrary to Article 6 of the Convention.
On
26 August 2010 the President of
the Fourth Section decided to give notice of the application
to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
5. 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)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1922 and lives on the Isle
of Man.
A. Background of the case
The
applicant owned an area of land in Marsaxlokk, Malta, measuring
approximately 13,557 sq. m.
On
18 March 1988, by means of a President’s declaration made by
virtue of Article 3 of the Land Acquisition (Public Purposes)
Ordinance, it was declared that the land was required for a public
purpose and was thereby being expropriated. According to the
Government the site was to be protected as a nature reserve.
Following
the issue of the relevant permit dated 10 August 1998, in 1999 the
boundary of the plot was fenced with a chain-link fence, but no other
use has ever been made of the property to date. According to an
architect’s report submitted by the applicant the site had been
abandoned and allowed to deteriorate. It was completely neglected and
not looked after in any way. In consequence the land had been
vandalised and the watercourses on the land contaminated by leakages
from a nearby pig farm. According to the applicant the land had
become a dumping site. The Government contested the veracity of this
allegation.
The
said fencing incorporated an area of land which was effectively
larger than that covered by the declaration. In consequence, in
relation to this additional land (hereinafter Land B for ease of
reference) measuring 362.5 sq. m the applicant claimed that there had
been a de facto expropriation which was not in accordance with
the law.
The
entirety of the land was part of the Marsaxlokk Bay Local Plan 1995,
which recognised the site as a salt marsh of ecological importance.
Nevertheless, the Malta Environment and Planning Authority’s
policies authorise development in the area subject to specific
conditions.
The
applicant contended that although the site was declared a Special
Conservation Zone in 2005, in 1998 when it was taken there existed no
public purpose. In the meantime she was prevented from developing the
land in accordance with the relevant policies, since any permit
requests she made were refused on the basis of the supposed
expropriation.
To
date, the Commissioner of Lands had not issued a “notice to
treat” and the applicant had not received any compensation for
the taking of her land.
The
applicant’s judicial protest of 11 January 2005 requesting the
Government to dispossess itself of certain adjoining lands (including
Land B) which she claimed had been expropriated illegally, and to pay
compensation, was unsuccessful.
2. Constitutional redress proceedings
In
2005 the applicant instituted proceedings before the Civil Court
(First Hall) in its constitutional jurisdiction, complaining of a
breach of her rights as guaranteed by Article 1 of Protocol No. 1 to
the Convention and Article 6. She claimed that no use had been made
of the expropriated land, that the taking could not be considered
proportionate and that she had not obtained any compensation.
Moreover, the delay in initiating compensation proceedings denied her
the right of access to court. She further noted that certain
adjoining lands were also her property and that notwithstanding her
judicial protest of 11 January 2005, which she attached to her
application (Rikors promotorju), the State had not taken the
desired action.
On
4 February 2009 the Civil Court rejected the applicant’s
claims. It held that there was no doubt that the land in question was
saline marshland that had great ecological importance in Malta.
Therefore, its taking for the preservation of a natural reserve had
been legitimate and in the public interest. As to Article 6 it held
that the applicant could have instituted ordinary proceedings to
oblige the Commissioner of Lands to institute proceedings before the
Land Arbitration Board (“LAB”) or could have made a
request for the relevant Government department to appoint a lawyer to
establish the origin of the land. However, she had not taken up any
of these procedures.
The
applicant appealed on the grounds that the public interest upheld by
the court was an objective one. However, the Government had failed in
the circumstances of the present case to demonstrate how and whether
the protection of the said reserve would occur. Moreover, the public
interest had to be established at the time of the taking and must
persist. However, in the present case the site was declared a Special
Conservation Zone only in 2005, seventeen years after the taking and
it surely did not persist in view of the state of the land to date.
Furthermore, as was clear from the testimony before the
first-instance court, the fencing had taken over more land than was
covered by the President’s declaration. Thus, as had been
argued in the applicant’s submissions, the court should have
ordered its release and upheld a violation in the terms explained in
her original application (“rikors promotur”).
On
26 June 2009, the Constitutional Court found that the applicant’s
property rights had not been violated but that there had been a
breach of Article 6 in so far as the failure of the Commissioner of
Lands to issue a “notice to treat” amounted to a lack of
access to court. It awarded the applicant 2,000 euros (EUR) in
respect of non-pecuniary damage.
The
Constitutional Court reiterated that the public interest should
persist from the moment of taking the land to the moment when the
Government obtained ownership of the land on conclusion of the
expropriation procedure. It considered the evidence produced, in
particular the witness testimony of the Commissioner of Lands,
stating that the Environment Protection Department had requested that
such land be expropriated; Departmental correspondence related to the
use of the land evidencing that because fencing had been built the
property should not be released, whereas it would have been otherwise
had nothing been done on site; photographs of the state of the land
when it was being taken care of by the applicant’s ancestors;
and the witness testimony of an employee at the MEPA who classified
the land as saline marshland (Mediterranean sea meadows) hosting rare
and healthy flora and fauna communities. He further stated that the
land was in a good state although the man in the street might deem
otherwise due to the appearance of salt marshes and that the
department had added certain species to the site in order to avoid
erosion and had carried out engineering works to improve the state of
the pools therein. In this light, and having considered subsequent
structural plans and assessments confirming the necessity of
protecting the biodiverse site, the court held that the taking of the
land had been in the public interest, which persisted,
notwithstanding that no construction had taken place. It was in fact
the aim of the taking of the land to leave the site in its original
state, a state which could not have been guaranteed if it had been
left in the hands of private individuals.
In
respect of Land B of the land, while noting that the Commissioner of
Lands did not contest the allegation and was willing to give the
relevant portion back to the applicant, the court found that the
applicant had not made any request in this respect in her application
(“rikors”) to the court. It noted that the court
had to decide on the case as presented in the application which fixed
the parameters of a case at issue. Indeed in the present case no
request for rectification of the application had been made in order
to include this complaint. The court therefore rejected this ground
of appeal.
Under
Article 6 it held that the applicant, who became aware of the
expropriation in 1999, had not solicited the action of the
authorities. Nevertheless, it was unacceptable that the Commissioner
of Lands, who had the duty to take action, had, in twenty years,
failed to pay compensation, or at least to make an offer of such. In
consequence this amounted to a violation of Article 6 for lack of
access to court.
II. RELEVANT DOMESTIC LAW
The
Land Acquisition (Public Purposes) Ordinance (Chapter 88 of the Laws
of Malta) in so far as relevant read 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.”
23. Articles
2 and 3 of subsidiary legislation 12.09 regarding court practice and
procedure and good order rules, read as follows:
Article
2
“Proceedings before the Civil Court, First Hall,
under article 46 (1) of the Constitution of Malta and under article 4
(1) of the European Convention Act and proceedings before the
Constitutional Court in cases referred to in article 95 (2) of the
Constitution of Malta shall be instituted by application.”
Article
3
“(1) An application before the Civil Court, First
Hall, shall state concisely and clearly the facts out of which the
complaint arises and shall indicate the provision or provisions of
the Constitution of Malta or of the European Convention for the
Protection of Human Rights and Fundamental Freedoms alleged to have
been, to be or likely to be contravened.
(2) The application shall also specify the redress
sought by the applicant:
Provided that it shall be lawful for the court, if the
application is allowed, to give any other redress within its
jurisdiction which it may consider to be more appropriate.
(3) In cases referred to in article 95 (2) (a)
of the Constitution of Malta, the application before the
Constitutional Court shall state clearly and concisely the
circumstances out of which the question arises, the demand and the
provision or provisions of the Constitution or of any other law on
which the applicant relies.
(4) In cases referred to in article 95 (2) (c),
(d), (e)
and (f) of the
Constitution of Malta, the application shall state clearly and
concisely the circumstances out of which the appeal arises, the
reasons of appeal and the prayer for the reversal or a specific
variation of the decision appealed from.
(5) Default of compliance in the application with the
requirements of sub-rules (1), (2), (3) and (4) shall not render the
application null; but the court may, in any such case, order the
applicant to file, within such time as the court shall fix, a note
containing the particulars required and the costs of such order shall
be borne by the applicant.”
24. Article
1078 of the Civil Code (Chapter 16 of the Laws of Malta), in so far
as relevant, read as follows:
“Where the time for the performance of the
obligation has been left to the will of the debtor, or where it has
been agreed that the debtor shall discharge the obligation when it
will be possible for him to do so, or when he will have the means for
so doing, the following rules shall be observed:
(a) if the subject-matter of the obligation is
the payment of a sum of money, such obligation shall be performed
within two years, if the sum is due without interest, or, within six
years if the sum is due with interest;
(b) if the subject-matter of the obligation is
other than the payment of a sum of money, the time within which the
obligation is to be performed shall be fixed by the court according
to circumstances.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
The
applicant complained that her property rights
had been breached as the taking of her land had not been effected in
the public interest and twenty-one years later she had not received
any compensation. In this respect she complained that no mechanism
had been provided whereby she could have initiated proceedings for
compensation. The applicant further complained that Land B had been
expropriated illegally and contrary to the requirements of Article 1
of Protocol No. 1 of 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
1. The property which was the subject of the President’s
declaration
The
Court notes that this part of the complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Land B
The
Government submitted that, as noted by the Constitutional
jurisdictions, the issue relating to Land B had not been brought
before the domestic courts according to the relevant procedure, as it
had only been raised at the appeal stage. This part of the complaint
was therefore inadmissible for non-exhaustion of domestic remedies.
Moreover, if the fence had indeed been installed irregularly, the
applicant could also lodge a claim for eviction or for compensation
with the ordinary courts.
The
applicant submitted that she had filed a judicial protest in respect
of Land B, reference to which she had made in the constitutional
application. Indeed, she had requested the domestic courts to return
all her land to her possession, and to decide that the taking of the
land by the Government had violated her rights under the Convention.
The issue relating to Land B had also been raised in oral arguments,
both before the first-instance court and on appeal.
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 applicant’s
attempted appeal in respect of Land B as the applicant had made no
such request in her original application (see paragraph 20 above).
Thus, by her own fault, the applicant 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
applicant failed to properly exhaust domestic remedies in this
respect.
Consequently,
this part of the complaint must be rejected as inadmissible, in
accordance with Article 35 §§ 1 and 4 of the Convention.
B. Merits
1. The parties’ submissions
The
applicant submitted that the taking of the property had not been in
the public interest. Indeed the site had only been declared a Special
Conservation Zone in 2005, and EU law had not been applicable in
Malta before 2004. No measures had been taken in respect of the land
except for the building of a fence which had also not been maintained
in good condition. The property was now derelict (according to an
architect’s report) and was not supervised or protected from
vandalism. It had moreover been contaminated by nearby pig farms. In
the applicant’s view, if she had retained possession of the
property she would have kept it in order as she had always done,
respecting the ecological balance, and could have developed it
according to the relevant local plan issued by the Malta Environment
and Planning Authority (MEPA). The latter, although it recognised the
site as a salt marsh of ecological importance, nevertheless allowed
for development of the site if it took into account the potential
effects on the site. However, the applicant had always been precluded
from such development because of the supposed expropriation of the
said land. Indeed, the applicant’s family had not only taken
care of the property but had prepared projects for its development
(an environment-friendly yacht marina), which had then been put aside
when they discovered the land had been expropriated in 1999.
Moreover,
the applicant had to date, twenty-one years after the land was taken,
not received any compensation. Nor had the relevant procedures been
instituted, as the COL had failed to issue a notice to treat. Indeed,
Article 1078 of the Civil Code had not been intended for
expropriation purposes and the applicant could not be expected to
pursue such an action when, according to the legal procedure relevant
to expropriation, it was the COL’s duty to institute
proceedings. Moreover, local jurisprudence had been unclear as to the
effectiveness of such a remedy. Furthermore, the delay could not be
blamed on the fact that the owner was unknown or resided abroad, as
the law clearly gave the option to institute proceedings by means of
a curator, an option the COL had not taken up.
Furthermore,
the applicant argued that any sum of money awarded as compensation
for the taking of the land would only be subject to interest at a
rate which would not suffice to redress the delay in the payment of
such compensation. It followed that the applicant had been made to
suffer an excessive individual burden.
The
Government submitted that the taking of the land had been in the
public interest, namely the land was to be used and conserved as a
nature reserve. The area had national and international importance,
because of species which grew only in that part of Malta and because
of the marshlands in the area. In 1993 the area was protected under
the Environment Protection Act and in 2005 the site was declared a
Special Conservation Zone, it being a habitat type listed in the
pertinent EU Council Directive (21 May 1992). However, this did not
mean that the Government could not protect such areas before the
relevant legislation entered into force. While the taking of the land
had been carried out to conserve the site in its original state,
certain development of an ecological nature had been carried out as
mentioned by the domestic courts (see paragraph 19 above). The area
was also regularly cleaned up, at least twice a year. However no
measures could totally protect it from vandalism, to which any
property could be subjected. Moreover, the Government rejected the
applicant’s argument that she could take better care of the
property, particularly in view of the fact that she wanted to develop
it, and any such development could not be in line with the
preservation of the habitat.
The
Government submitted that the delay in issuing the relevant notice to
treat (containing an offer of compensation, which the applicant could
then refuse, in which case it would have been for the COL to
institute proceedings before the LAB for the setting of compensation)
was due to the fact that the applicant was unknown and resided
abroad. The Government submitted that in practice declarations were
published in the Government Gazette to allow owners to come forward.
It was then for the owners to provide proof of ownership in order for
the Government to issue a notice to treat. In respect of the option
of the COL to institute proceedings by means of a curator, the
Government considered that this was not an appropriate course of
action, since it could prevent the owners, once their identity had
eventually been established, from contesting the amount of
compensation awarded. It further transpired that the applicant only
became aware of the expropriation in 1999, and until then had shown
absolutely no interest in the property. Thereafter the applicant did
not institute ordinary proceedings demanding the performance of an
obligation (in this case by the COL) according to Article 1078 of the
Civil Code, opting to take constitutional proceedings in 2005. Nor
did the applicant cooperate in offering proof of her ownership title,
notwithstanding that any related legal costs were paid by the State.
The
Government submitted that the applicant’s aim was to have her
land returned. While this was not possible, the Government noted that
the applicant would eventually obtain compensation, with interest.
The Government noted that no yacht marina projects could ever be
allowed, as the applicant had no right to use land such as the
seashore, which was clearly in the public domain. Bearing in mind
that the land had no commercial value or development potential, the
applicant had not suffered an excessive individual burden.
2. The Court’s assessment
The
Court reiterates that Article 1 of Protocol No. 1 guarantees, in
substance, the right to property and comprises three distinct rules
(see, for example, Sporrong and Lönnroth v. Sweden, 23
September 1982, § 61, Series A no. 52). The first, which is
expressed in the first sentence of the first paragraph and is of a
general nature, lays down the principle of peaceful enjoyment of
property. The second rule, in the second sentence of the same
paragraph, covers deprivation of possessions and subjects it to
certain conditions. The third, contained 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 or to secure the payment of taxes or other contributions or
penalties. However, the rules are not “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. They must be construed in the light of the
general principle laid down in the first rule (see, for example, Air
Canada v the United Kingdom, 5 May 1995, §§
29 and 30, Series A no. 316-A).
A
taking of property 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 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. The Court 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).
Thus,
any interference with 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).
Compensation terms under the relevant legislation are
material to the assessment of whether the contested measure respects
the requisite fair balance and, notably, whether it imposes a
disproportionate burden on the individuals (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, 9 December 1994, § 71, Series A
no. 301-A ). 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
reimbursement of less than the full market value (see Urbárska
Obec Trenčianske Biskupice v. Slovakia, no. 74258/01, §
115, ECHR 2007-... (extracts)).
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 of Judgments and Decisions). 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).
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, and that the taking
of this plot of land had been carried out in accordance with
procedures provided by law.
The
Court further accepts the domestic courts’ assessment as to the
relevant public interest (see paragraph 19 above). Indeed it
considers that conservation does not necessarily entail development
of the land, particularly when the aim is to maintain an original
habitat. It notes however that in the present case certain measures
have been taken by the Government to improve the relevant conditions.
Lastly, the Court considers that the State is allowed to take
measures in order to ensure ecological conservation, regardless of
any international obligations in this respect. It follows that the
taking fulfilled the public interest requirement (see, for example,
Fredin v. Sweden (no. 1), 18 February 1991, § 48, Series
A no. 192; Matos e Silva, Lda.,
and Others v. Portugal, 16 September 1996, § 88,
Reports of Judgments and Decisions 1996 IV; and Posti
and Rahko v. Finland, no. 27824/95, § 77, ECHR
2002 VII).
As
to the proportionality of the measure, the Court
considers that, in the light of the circumstances of the case, and
particularly the fact that the applicant made no such claims before
the domestic court, it is not necessary to determine, at this stage,
whether the amount yet to be offered to the applicant could satisfy
the requirements of Article 1 of Protocol No. 1.
46. It
suffices to say that, having regard to the
fact that the applicant has not received any compensation for the
expropriation of the property to date, twenty-three years after the
taking of the land, the applicant has been required to bear a
disproportionate burden.
In
so far as the Government argued that the delay in paying compensation
was due to the owners, the Court notes that, according to the Land
Acquisition (Public Purposes) Ordinance, it was up to the authorities
to initiate the relevant compensation proceedings (see paragraph 19
above) (see also Bezzina Wettinger and Others v. Malta, no.
15091/06, § 92, 8 April 2008). Whatever the effectiveness
of an action under the Civil Code might be, an action of a general
nature and in respect of which the Government have not produced any
evidence in relation to its prospects of success (see, mutatis
mutandis, Horvat v. Croatia, no. 51585/99, § 44,
ECHR 2001 VIII, and Marini v. Albania, no. 3738/02, §
156, ECHR 2007 XIV (extracts)), the Court considers that, in
such cases, owners could not be expected to incur the expense and
burden of instituting proceedings to ensure the authorities’
fulfilment of their legal obligation (see, mutatis mutandis,
Apostol v. Georgia, no. 40765/02, §§ 64-65, ECHR
2006 XI, in relation to enforcement proceedings). Moreover, the
Court notes that notwithstanding the Constitutional Court judgment,
to date no proceedings have been instituted by the COL. Lastly, the
Court rejects the Government’s argument that the applicant was
not cooperative in proving ownership title. Indeed the Court
considers that, in the context of an expropriation mechanism, it can
understandably be the responsibility of the Government to identify
the relevant owners. This responsibility also entails the
necessary research to identify the owners. Moreover, the Court
further notes that the Maltese legal system also provided for the
possibility of initiating proceedings by means of a curator. It
follows that the delay in paying compensation was totally
attributable to the State.
The
Court therefore concludes that in view of the delay in instituting
the relevant proceedings and the fact that to date, twenty-three
years after the taking of the land, the applicant has not been
awarded, let alone paid, any compensation for it, the applicant has
been made to bear an excessive individual burden.
There
has accordingly been a violation of Article 1 of Protocol No. 1 to
the Convention.
II. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION
The
applicant complained that the Constitutional
Court which found a violation of Article 6 did not award adequate
just satisfaction and did not redress the violation found, as she
still did not have a means to oblige the Government to initiate
compensation procedures and remains uncompensated to date. She
relied on Articles 6 and 13 of the Convention, which read as follows:
Article 6
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair hearing within a
reasonable time by [a] ... tribunal ...”
Article 13
“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.”
The
Government submitted that the Constitutional Court had held that the
COL’s inaction had constituted a violation of the applicant’s
right to access to court and to a trial within a reasonable time, and
awarded the applicant EUR 2,000. Thus, they considered that the
applicant could no longer be considered a victim of a violation of
Article 6 § 1. In any case, as explained in the submissions
above, the Government considered that the applicant was also partly
to blame for the delay in the proceedings.
The
applicant submitted that she was still a victim of a violation of
Article 6 § 1, as she had suffered non-pecuniary as well as
pecuniary damage. She had been entitled to compensation, which the
constitutional jurisdictions had not taken account of. Moreover, it
had not even ordered the COL to institute the relevant proceedings.
It followed that the constitutional remedy was highly ineffective in
terms of Article 13. As to the merits, she contended that for the
reasons referred to above she could not be blamed for the delay in
the proceedings.
The
Court reiterates that a decision favourable to the applicant is not
in principle sufficient to deprive him or her of his or her 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 notes that the Constitutional Court’s acknowledgment that
the excessive delay on the part of the Commissioner of Lands in
instituting proceedings for compensation amounted to a denial of
access to court satisfies in substance the first condition. However,
as far as the second condition is concerned, even assuming that the
award of EUR 2,000 is comparable to Strasbourg awards, the Court
notes that the domestic courts, although empowered to do so, failed
to order the COL to initiate proceedings as soon as possible. Indeed,
to date in 2011 proceedings have not been instituted. In these
circumstances the Court considers that the applicant can still claim
to be a victim of a violation of Article 6 § 1.
The
Government’s objection is therefore dismissed.
The
Court notes that the complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
Having
regard to the finding of the Constitutional Court relating to Article
6 § 1 (see paragraph 19 above), the Court considers that it is
not necessary to re-examine in detail the merits of the complaint.
Also bearing in mind that the situation persists to date, the Court
finds that there has been a violation of Article 6 § 1 of the
Convention on account of the fact that the applicant was denied and
continues to be denied access to a court for the determination of the
compensation due to her.
58. The Court reiterates that the role of Article 6 §
1 in relation to Article 13 is that of a lex specialis,
the requirements of Article 13 being absorbed by the more stringent
requirements of Article 6 § 1 (see, for example, Société
Anonyme Thaleia Karydi Axte v. Greece, no. 44769/07, § 29,
5 November 2009; Dauti v. Albania, no. 19206/05, §
58; 3 February 2009; Jafarli and Others v. Azerbaijan, no.
36079/06, § 55, 29 July 2010, and Urbanek v. Austria, no.
35123/05, § 70, 9 December 2010).
It
follows that it is not necessary to examine the complaint under
Article 13.
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.”
A. Damage
The
applicant claimed EUR 3,700,930 in respect of
pecuniary damage. This included EUR 3,141,881 for loss of annual
revenue for the planned project of the 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.
The
Government submitted that the yacht marina could never come into
existence and any claims in respect of any revenue it could have
obtained were totally imaginary and unfounded. The same held for any
restoration works which had never been carried out and would not be
carried out at the applicant’s expense, since the land was now
in the State’s hands. As to the value of the land, the
Government submitted that since it had no commercial use but only an
ecological one, the land was comparable to waste land and could not
be valued at more than EUR 75,000. However, this sum had yet to be
determined by the LAB. The Government considered that no compensation
for non-pecuniary damage was called for in the circumstances of the
present case.
The
Court considers that the claim for loss of revenue on account of the
expansion of a yacht marina does not reflect the realities of the
situation and does not take account of the nature of the land and its
surroundings or ecological value. In addition, no costs in relation
to restoration works have been incurred by the applicant.
It
therefore rejects these claims.
On
the other hand, it notes that no compensation has yet been paid to
the applicant in respect of the taking of the land. In view of the
fact that the domestic proceedings relating to the payment of
compensation have not even been instituted more than twenty years
after the land was taken, the Court considers that it would be
unreasonable to wait for the outcome of those proceedings (see
Serrilli v. Italy (just satisfaction), no. 77822/01, § 17,
17 July 2008, and Mason and Others v. Italy (just
satisfaction), no. 43663/98, § 31, 24 July 2007). However,
in view of the submissions made by the parties at this stage, the
question of pecuniary damage in relation to the compensation for the
expropriation of the applicant’s land is not ready for
decision. Thus, that question, together with the issue of
non-pecuniary damage, must accordingly be reserved and a subsequent
procedure arranged, having due regard to any agreement which might be
reached between the respondent Government and the applicant
(Rule 75 § 1 of the Rules of Court).
B. Costs and expenses
The
applicant also claimed EUR 3,271.65 as per taxed
bill of costs, and a further sum of approximately EUR 3,000 covering
other legal fees, services and ex parte architect’s
fees, for costs and expenses incurred before the domestic courts, and
EUR 1,823.68 for those incurred before the Court.
The
Government submitted that some of the costs incurred in the domestic
proceedings were being claimed twice, since they had already been
included in the taxed bill of costs. Moreover, bills for ex parte
experts should not be reimbursed, since it was the applicant’s
choice not to use court-appointed experts.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, the Court notes that
the applicant has submitted double billing by claiming the amount
stated in the taxed bill of costs and then a number of services
separately. Regard being had to the violations found, the
documents in its possession and the above criteria,
the Court considers it reasonable to award the sum of EUR 4,500
covering costs under all heads.
C. Default interest
The
Court considers it appropriate that the default interest 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
Declares the complaint
under Article 1 of Protocol No. 1 to the Convention in relation to
Land B inadmissible and the remainder of the application
admissible;
2. Holds that there has been a
violation of Article 1 of Protocol No. 1 to the
Convention in respect of the land subject to the President’s
declaration;
Holds that there has been a
violation of Article 6 § 1 of the
Convention;
Holds that there is no need to examine the
complaint under Article 13 of the Convention in conjunction with
Article 6 § 1;
Holds that, as far as the financial award to the
applicant for non-pecuniary and pecuniary damage resulting from the
violations found in the present case is concerned, the question of
the application of Article 41 is not ready for decision and
accordingly,
(a) reserves
the said question as a whole in respect of non-pecuniary damage and
in part in respect of pecuniary damage, namely in so far as it
relates to the award of compensation for the expropriation of the
land subject of the President’s declaration;
(b) invites
the Government and the applicant to submit, within three months from
the date on which this 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
Section the power to fix the same if need be;
Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, the following amount:
(i) EUR
4,500 (four thousand five hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs
and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of
the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 22 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza Deputy
Registrar President
