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GERA DE PETRI TESTAFERRATA BONICI GHAXAQ v MALTA - 26771/07 [2011] ECHR 591 (5 April 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/591.html
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[2011] ECHR 591
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FOURTH
SECTION
CASE OF GERA DE PETRI TESTAFERRATA BONICI GHAXAQ
v.
MALTA
(Application
no. 26771/07)
JUDGMENT
(merits)
STRASBOURG
5
April 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 Gera de Petri
Testaferrata Bonici Ghaxaq v. Malta,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Zdravka Kalaydjieva,
judges,
Joseph Zammit Mckeon, ad hoc judge,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 15 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 26771/07) 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 Agnes Gera de Petri
Testaferrata Bonici Ghaxaq (“the applicant”), on 28 June
2007.
The
applicant was represented by Dr Ian Refalo, a lawyer practising in
Valletta. The Maltese Government (“the Government”) were
represented by their Agent, Dr Silvio Camilleri, Attorney General.
The
applicant alleged that the length of her proceedings had been
excessive, and that she had suffered a breach of her property rights
as a consequence of the first taking of her property and the lack of
an effective remedy in this respect.
On
3 November 2009 the Court declared the application partly
inadmissible and decided to communicate the complaint concerning the
length of proceedings and the lack of an effective remedy in respect
of the first taking of the applicant’s property, to the
Government. It also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
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 Joseph Zammit
McKeon to sit as an ad hoc judge (Rule 29 §
1(b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1949 and lives in Balzan, Malta.
A. Background of the case
The
applicant is the owner of a property, known as Palazzo Bonici, in
Valetta. She partly owns some of the ground floor shops, and entirely
owns the house, from the rest of the ground floor and the basement to
the top floors.
The
property had been damaged during the Second World War and the
applicant’s ancestors, from whom she inherited the property,
had on 11 January 1945 applied to the War Damage Commission to
obtain the necessary funding to have the property restored. At the
time, the building consisted of a large eighteenth century town house
including a few rooms on the ground floor which were rented out as
shops. Between 1945 and 1950 the War Damage Commission had paid out a
sum corresponding to EUR 1,307, for the premises excluding the shops
in respect of which no amount had been paid as a consequence of
undefined claims. According to the applicant the sums awarded covered
expenses for required temporary works to secure the premises, as had
originally been claimed, and not the entire works to repair the whole
of the property. While the Government contended that, despite the
payments, the building was left in a state of neglect, the domestic
courts acknowledged that the applicant had attempted to reconstruct
the damaged area (page 21 of the Constitutional Court judgment of 8
January 2007)
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 applicant’s ancestors refused to hand over the
keys of the building. Thus, the property was left unused until 1972
when the building was forced open by the Government, by which time it
had deteriorated considerably.
In
1972 the Government commenced works to repair the property with a
view to using it as a cafeteria and offices in conjunction with the
Manoel Theatre situated nearby. The Government evicted the tenants of
the shops on the ground floor which had been leased on the basis of
controlled rents, and a hall in the upper floors was converted into a
performance hall for small audiences. Subsequently a theatre
restaurant was housed in the basement of the building and another
floor was added to house the foundation for Maltese patrimony
“Fondazzjoni Patrimonju Malti”, a Government
foundation promoting national heritage, which also serves as a
commercial company dealing in publications.
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 amount was based on the 1914
rental value (according to rent laws relating to renting of
residences – not commercial premises – in force at the
time) increased by 40 % to allow for inflation. By a judicial letter
of 1976 the applicant’s ancestors rejected the offer and in the
same year the Commissioner of Lands instituted compensation
proceedings before the Land Arbitration Board (“LAB”).
These proceedings were suspended sine die on 10 October 1996
(see Annex A for a detailed chronological list of hearings in the
proceedings). Pending these proceedings, the applicant inherited the
property of which she gained possession by public deed on 26 March
1990. 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 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. It rented the property to a number of commercial
entities, including offices, cafeterias, reception halls, a
restaurant and a publishing house. According to the Government, the
economic income received by the MTMC per year amounted to
approximately EUR 13,000 and the Government had spent EUR 735,115
restoring the building and meeting its maintenance costs.
B. Proceedings before the Civil Court in its
constitutional jurisdiction
In
1996 the applicant instituted constitutional redress proceedings in
which she brought complaints 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 award 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 forty years later. It noted that it had taken the Government
eighteen 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 allow it to conclude that the applicant
had suffered a serious prejudice, incompatible with Article 6 of the
Convention, over the forty years during which 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) was reserved.
C. Proceedings before the Constitutional Court
The
Government appealed against the above-mentioned judgment.
The
applicant submitted that during the proceedings, lasting eight years,
the judges were replaced several times and there had been numerous
adjournments (see Annex B for a detailed chronological list of
hearings in the proceedings).
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 preserved between the private interest and the public need.
While it was true that the commercial purposes of the taking appeared
to have superseded the original purpose, it was in the light of the
compensation offered to the applicant (EUR 490 yearly rent for a
property valued at approximately EUR 1,863,500)
and the fact that she had been deprived of
her property for nearly fifty years, that she had been made to bear a
disproportionate burden. The fact that the property had been
refurbished by the State had little bearing on this conclusion,
although it could be relevant in determining the compensation terms.
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 eighteen 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 started running 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 had 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 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. However, it reserved any rights the applicant
might wish to assert in respect of compensation for the “possession
and use” of the premises during the relevant period.
D. 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, amounts to MTL
110,000 (approximately EUR 256,000) per year. The market value in the
case of sale is estimated to be MTL 2,200,000 (approximately EUR
5,125,000); the Government, however, estimate it to be only MTL
1,500,000 (approximately EUR 3,494,000).
E. 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. 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 the case is still pending.
F. 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 their 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 below). 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 the calculations had been based on rental values applicable in
1939. Even assuming that the offer comprised 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 the 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.
These proceedings are still pending.
G. The compensation proceedings
1.
Compensation for damage arising from the violation of Article 1 of
Protocol No. 1
On
15 January 2007 the applicant requested the Civil Court (First Hall)
to determine the claim (537/1996) for the compensation due for the
violation of Article 1 of Protocol No. 1 in accordance with Article
235 of the Code of Organisation and Civil Procedure (“COCP”).
On 29 November 2007 the Civil Court (First Hall) rejected the
applicant’s claim. It held that the Civil Court had only
reserved the matter of compensation in relation to Article 6, of
which no violation had been found by the Constitutional Court, which
had also found that declaring the taking null and void was a
sufficient remedy for the violation of Article 1 of Protocol No. 1.
Thus, the Constitutional Court’s judgment of 8 January 2007 had
been final, the applicant’s claims having been decided in their
entirety, except for the reservation in respect of payment due for
the possession and use of the land for the relevant period, which was
subject to ordinary civil remedies. In consequence Article 235 of the
COCP did not apply to the present case.
That
finding was confirmed on appeal by a judgment of the Constitutional
Court of 29 February 2008.
2.
Compensation for damage arising from the possession and use of the
premises
On
6 December 2007 the applicant instituted proceedings against the
Commissioner of Lands (1281/07) for damage arising from the loss of
possession and use of the premises in the light of the Constitutional
Court’s judgment of 8 January 2007 finding a violation of
Article 1 of Protocol No. 1 to the Convention. On 10 June 2010,
the court having established that such a decision had not been taken
by any other court and that the domestic courts had particularly
stated that such a measure had to be sought before the ordinary
domestic civil courts, took cognisance of the case and ordered the
submission of the relevant evidence.
The
proceedings are still pending.
II. 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 held by way of 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the proceedings relating to the first
taking of her property had not been decided within a reasonable time
as required by Article 6 § 1 of the Convention, which reads as
follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
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’ observations
The
applicant submitted that the proceedings she had been required to
undertake had not been decided within a reasonable time. The property
was taken in 1958 and the Government only initiated compensation
proceedings eighteen years later, in 1976. Pending the outcome of
those proceedings, which she did not consider effective, as they
could never have resulted in an adequate award of compensation, the
applicant instituted constitutional redress proceedings in 1996,
which were concluded in 1999 at first instance and in 2007 on an
appeal filed by the Government. Subsequently, the taking having been
found to be null and void, proceedings before the LAB became in her
view superfluous and were abandoned. Thus, after fifty years, during
which Malta was under the protection of the Convention (prior to
Malta’s ratification, the United Kingdom had extended the
protection of the Convention also to Maltese territory), the
applicant had still not been awarded compensation for the taking.
The
applicant submitted that she could not be penalised for having
requested a suspension pending the outcome of other cases, relevant
to her own, which had eventually been decided in favour of the
claimants. Indeed, she had no control over the unreasonable delay of
other courts in hearing parallel cases. This only went to prove that
the length of proceedings was an endemic problem. Similarly, it had
been appropriate to re-suspend proceedings before the LAB pending the
outcome of the constitutional redress proceedings, since the LAB
could establish compensation due only for lawful takings, a matter
which was being contested before the constitutional jurisdictions.
Moreover, she had had a right to bring constitutional proceedings and
submit all the relevant evidence supporting her case at that stage,
especially since it related to the intensification of the commercial
use of the premises, a matter crucial to her submissions. It was the
fact that it had taken the court two years to disallow the request
that had contributed to the delay and not the actual request. Lastly,
after fifty years the applicant still remained without compensation
and was still instituting proceedings to obtain it.
The
Government submitted that the delay had to be calculated only post
1987, when the right of individual petition entered into force in
Malta. They further submitted that the applicant and/or her ancestors
had requested adjournments or not attended hearings seven times
during the proceedings before the LAB. Moreover, the applicant gained
possession of the property at issue on 26 March 1990 following her
ancestor’s death in 1988, and it had taken her eight years to
file the necessary documents to enable her to continue in her
deceased ancestor’s stead, namely, until 9 May 1996.
Subsequently, on 10 October 1996 she requested the case to be
adjourned sine die pending the outcome of her constitutional
case and another, in the Government’s view, unrelated case. The
latter case was still pending to date and consequently the Government
could not request the resumption of the case that, according to them,
was still pending before the LAB; the former proceedings, namely, her
constitutional claims, which had been instituted on 14 March 1996,
were decided at first instance on 18 January 1999 and at second
instance on 8 January 2007. This delay on appeal had been due to the
applicant’s request that fresh evidence be produced (see Annex
B). As to any other proceedings, the Government submitted that the
applicant should not have persisted in pursuing compensation as the
Constitutional Court had held that it had not been due. Lastly, the
Government concluded that, overall, the length of the proceedings had
been due to the applicant and/or her ancestors’ behaviour.
2. The Court’s assessment
The
Court notes that the taking of the property took place in 1958. The
Government did not institute the relevant compensation proceedings
before the LAB for eighteen years. They eventually began in 1976 and
were suspended sine die on 10 October 1996 according to the
applicant, and remain pending to date according to the Government.
Meanwhile, constitutional redress proceedings started in 1996 and
were concluded in 1999 at first instance and on 8 January 2007 on
appeal.
The
Court observes that in the absence of an express limitation, the
Maltese declaration of 30 April 1987 is retrospective and the Court
is therefore competent to examine facts which occurred between 1967
the date of ratification and 1987 the date on which the State’s
declaration under former Article 25 became effective (see
Bezzina Wettinger and Others v. Malta, no. 15091/06, §
54, 8 April 2008). As to the antecedent period, even though the
Convention was applicable to Maltese territory, this had its basis in
the United Kingdom’s Convention obligations. The present
complaint is directed against the Maltese Government. Thus, the Court
can only take into consideration the period which has elapsed since
the Convention entered into force in respect of Malta (1967),
although it will have regard to the stage reached in the proceedings
by that date (see, for example, Humen v. Poland [GC], no.
26614/95, §§ 58-59, 15 October 1999). Moreover, since
the applicant has continued the proceedings as heir, she can complain
of the entire length of the proceedings (see Cocchiarella v. Italy
[GC], no. 64886/01, § 113, ECHR 2006-; and Bezzina
Wettinger, cited above, § 67).
In
the present case, the proceedings at issue, once undertaken, lasted
more than thirty years at three levels of jurisdiction.
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
The
Court observes that the applicant’s case was not particularly
complex; before the LAB it was restricted to determining the amount
of compensation for the property which had been taken from the
applicant, and before the constitutional jurisdictions the applicant
was complaining about the proportionality of the measure and the
unreasonable delay before the LAB. The Court further finds that the
issue at stake in the proceedings could, in principle, be regarded as
of importance to the applicant.
The Government argued that the delay in the proceedings was
attributable to the applicant’s and/or her ancestors’
absences and requests for adjournments, particularly, the requests to
adjourn the proceedings pending the outcome of other cases which the
Government deemed irrelevant.
The
Court does not find it necessary to determine whether any other
proceedings may have been of relevance or not to the decision to be
taken by the LAB, as the fact that the LAB granted the adjournments
for this purpose presupposes that the LAB found them to be relevant.
However, the latter decision did not release the domestic authorities
from their obligation to examine the case within a reasonable time.
The LAB remained responsible for the conduct of the proceedings
before it and ought therefore to have weighed the advantages of the
continued adjournments pending the outcome of other cases against the
requirement of promptness (see, mutatis mutandis, Šilih
v. Slovenia [GC], no. 71463/01, § 205, 9 April 2009 and
Konig v. Germany, Commission decision, 28 June 1978, §
104). Moreover, the Court notes that, apart from the adjournments
pending the outcome of other cases, the LAB adjourned the case
repeatedly, and on at least sixteen occasions the case was adjourned
either because members of the LAB were unable or failed to attend, or
because the Board was not appointed, or because no chambers were
available. Meanwhile the applicant’s legal counsel failed to
appear three times and requested four adjournments (see Annex A).
As
to the actual constitutional redress proceedings, the Court notes
that they lasted nearly three years at first instance and eight years
on appeal. As to the appeal, even assuming that some of the delay was
attributable to the applicant, it took the Constitutional Court four
years to hear the evidence, then one and a half years to deliver a
decree rejecting the applicant’s request to submit fresh
evidence, and subsequently another one and a half years to deliver
judgment (See Annex B). No explanation has been given in relation to
these periods of delay.
In
the light of the above, the Court considers that in the instant case
the overall length of the proceedings was excessive and failed to
meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
The
applicant complained of a violation of her property rights. She
relied on 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.”
A. Admissibility
1. The Government’s objection based on lack of victim status
The
Government submitted that the Constitutional Court’s judgment
finding a breach of Article 1 of Protocol No.1 for the lack of
proportionality of the impugned measure deprived the applicant of
victim status. Indeed, the fact that the Constitutional Court held
that the Government’s declaration was null and void constituted
substantial compensation because the Government were thereby
constrained to acquire the premises afresh at a cost of approximately
EUR 49,000 per year. Moreover, the Constitutional Court reserved the
applicant’s right to claim compensation for the occupation of
the premises and in fact the applicant instituted proceedings in this
connection which are still pending, together with those before the
LAB, which are intended to fix the rent for the said occupation.
The
applicant submitted that she was still a victim of a violation of
Article 1 of Protocol No.1 as the Constitutional Court had not
granted her compensation for either non-pecuniary or pecuniary
damage. The fact that she was still pursuing proceedings in this
connection did not alter her victim status, as it was unreasonable to
expect persons still to seek compensation after pursuing all the
relevant proceedings over numerous years. Indeed the Constitutional
Court could not have known that the Government would resort to taking
the land again. Thus, any future payments, which, to date, had not
been paid, and which according to the applicant did not amount to
adequate rent, could not be considered as the compensation intended
by the Constitutional Court. The applicant further submitted that it
was paradoxical that in the proceedings before the domestic courts
during which she was seeking compensation the Government were arguing
that the Constitutional Court had ruled out the possibility of
compensation and that before this Court they were arguing exactly the
opposite. Moreover, the fact that the Government regained possession
by means of another title rendered the Constitutional Court judgment
totally unenforceable.
The Court reiterates that an applicant is deprived of
his or her status as a victim if the national authorities have
acknowledged, either expressly or in substance, and then afforded
appropriate and sufficient redress for, a breach of the Convention
(see, for example, Scordino v. Italy (no. 1) [GC],
no. 36813/97, §§ 178-193, ECHR 2006-...).
As
regards the first condition, namely, the acknowledgement of a
violation of the Convention, the Court considers that the
Constitutional Court’s finding amounted to a clear
acknowledgment that there had been a breach of Article 1 of Protocol
No.1 to the Convention.
With regard to the second condition, namely,
appropriate and sufficient redress, the Court must ascertain whether
the measures taken by the authorities, in the particular
circumstances of the instant case, afforded the applicant appropriate
redress in such a way as to deprive her of her victim status. The
Court notes that the Constitutional Court ordered the release of the
property but awarded no compensation for the violation found.
However, it reserved the applicant’s right to claim the rent
due for the relevant period from the ordinary domestic courts.
The
Court, therefore, observes that after thirty years of proceedings the
Constitutional Court, having established that the amount offered by
the State had not been proportionate to the impugned measure, failed
to determine the amount of rent due. In fact, four years later, these
proceedings are still pending (at least before the ordinary
jurisdictions if not before the LAB) and the rent payable to the
applicant has not yet been established (see paragraphs 28 and 29
above). Moreover, the Constitutional Court failed to grant any
compensation for non-pecuniary damage which would generally be
required when an individual was deprived of, or suffered an
interference with, his or her possessions, contrary to the
Convention. Indeed, in the present case the violation persisted for
forty years after the Convention came into force in respect of Malta.
Thus, the Court considers that, quite apart from the issue of the
subsequent taking, in the circumstances of the present case, the
order for the release of the property coupled with the applicant’s
reserved right to bring further proceedings for compensation, half a
century after the taking, did not offer sufficient relief to the
applicant, who continues to suffer the consequences of the breach of
her rights (see, mutatis mutandis, Dolneanu v. Moldova,
no. 17211/03, § 44, 13 November 2007).
In
consequence, the Government’s objection is dismissed.
2. Other points on admissibility
The
Court notes that the 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
The
applicant submitted that, as established by the domestic courts,
there had been a violation of Article 1 of Protocol No. 1 to the
Convention because she had been made to bear a disproportionate
burden having regard to the amount of compensation payable, even
though this had not been finally determined by the LAB.
In
their fresh observations on the merits of the complaint, the
Government conceded that there had been a violation of Article 1 of
Protocol No. 1 to the Convention as held by the Constitutional Court.
58.
The Court reiterates that any interference with property must, in
addition to being lawful, 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 v. Sweden,
23 September 1982, §§
69-74, Series A no. 52 and
Brumărescu v.
Romania [GC],
no. 28342/95, § 78, ECHR 1999-VII).
Having
regard to the finding of the Constitutional Court relating to Article
1 of Protocol No.1 (see paragraph 18 above), the Court considers that
it is not necessary to re-examine in detail the merits of the
complaint. It follows that, as established by the domestic courts, in
the light of the compensation offered to the applicant and the fact
that she was deprived of her property for nearly fifty years, she was
made to bear a disproportionate burden.
There
has accordingly been a breach of Article 1 of Protocol No. 1 to the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH
ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
The
applicant also complains that she did not have an effective remedy in
respect of the violation of her property rights. She invokes Article
13 of the Convention, which provides as follows:
“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 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
The
applicant submitted that the remedy provided by the constitutional
proceedings would only have been effective when coupled with a
reservation of her right to seek damages if the property had been
effectively returned to her and not taken afresh under a new title.
The
Government submitted that the constitutional redress proceedings were
an effective remedy. The annulment of the expropriation was the most
radical remedy possible, and opened the way for the applicant to
acquire a high compensatory rent for the retention of the property by
the Government. Moreover, the Constitutional Court judgment reserved
the applicant’s right to institute ordinary proceedings to
obtain the relevant compensation for the period for which the
property had been taken under title of possession and use.
The
Court reiterates that the remedy required by Article 13 must be
“effective” in practice as well as in law (see, for
example, İlhan v. Turkey [GC], no. 22277/93,
§ 97, ECHR 2000-VII). The term “effective” is also
considered to mean that the remedy must be adequate and accessible
(see Paulino Tomás v. Portugal (dec.),
no. 58698/00, ECHR 2003-XIII). However, the Court recalls that
the effectiveness of a remedy within the meaning of Article 13 does
not depend on the certainty of a favourable outcome for the applicant
(see Sürmeli v. Germany [GC], no. 75529/01, § 98,
ECHR 2006 VII) and the mere fact that an applicant’s claim
fails is not in itself sufficient to render the remedy ineffective
(Amann v. Switzerland, [GC], no. 27798/95, §§ 88-89,
ECHR 2002-II).
Firstly,
the Court notes that in its partial decision of 3 November 2009 it
considered that the applicant’s complaint that the taking of
the property for the second time suspended the enforcement of the
judgment of 8 January 2007 was indissociably linked to the
applicant’s claims then and currently pending before the
domestic courts and therefore rejected the complaint for
non-exhaustion of domestic remedies. In consequence, the fact that
the property was taken afresh by the Government cannot have any
bearing on the examination under Article 13 of the effectiveness of
the constitutional redress proceedings in the present case. Although
the applicant’s submissions under Article 13 mainly related to
this aspect, namely, the non-enforcement of the judgment, the
complaint had originally been based on the lack of compensation
awarded by the Constitutional Court.
The
Court notes that a remedy was in principle provided under Maltese
law, which enabled the applicant to raise with the national courts
her complaint of the violation of her Convention right to peaceful
enjoyment of possessions. She pursued constitutional proceedings
before the Civil Court (First Hall) in its constitutional
jurisdiction and, on appeal, before the Constitutional Court.
The
Court observes that the Constitutional Court could have made an award
of non-pecuniary damage and there was no limit on the amount of
compensation which could be granted to an applicant for such a
violation. The fact that no such award was made resulted from the
exercise by the domestic court judges of their discretion
as to what constituted appropriate redress in
the circumstances of the applicant’s case. Thus, the mere fact
that they did not award compensation for non-pecuniary damage,
deeming that the release of the property was in itself sufficient,
did not render the remedy in itself ineffective. Furthermore, no
other evidence has been provided to show that the remedy at issue
could be considered ineffective.
In
the light of the foregoing, the Court finds that it has not been
shown that the constitutional remedy was ineffective.
Accordingly, there has been no violation of Article 13
of the Convention in the present case.
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 926,812.10 and EUR 5,620,797.13, respectively,
in respect of pecuniary damage for (i) loss of rent from the date of
the Constitutional Court judgment onwards as a consequence of the
failure to enforce the judgment; and (ii) loss of rent for the period
during which the owners were deprived of the possession of their
property, which currently consisted of four floors and a basement,
together amounting to approximately 1,800 square metres. From 1958 to
2006 the rent was calculated on the basis of the rental value in an
open market together with 8 % interest. She submitted that in
the event that the Court considered the latter claim to be premature
in view of the fact that proceedings were still pending three years
after the constitutional court judgment, she should be permitted to
reserve the right to make the claim at a later stage. She further
reserved her right to claim compensation for the value of the
property which had never been returned to her, a matter which was
still before the domestic courts. Lastly, she claimed EUR 100,000 for
non-pecuniary damage in respect of the violations of Articles 6 and
13 and Article 1 of Protocol No.1.
The
Government submitted that the applicant’s claim for the value
of the property on grounds of non-enforcement and for loss of rent
from the date of the Constitutional Court judgment onwards was
subject to pending domestic proceedings and for this reason the
complaints in this connection had been declared inadmissible by the
Court in its decision of 3 November 2009. As to her claim
regarding rent for the period during which the owners were deprived
of the possession of their property, the matter was also still
pending before the domestic court and therefore the claim was
premature. No other compensation for non-pecuniary damage was due,
particularly because any delay in assessing compensation was
attributable to the applicant.
The
Court reiterates that it rejected the applicant’s complaint of
non-enforcement of the judgment of 8 January 2007 for non-exhaustion
of domestic remedies in its decision of 3 November 2009. In
consequence the claim in respect of pecuniary damage arising from
loss of rent from the date of the Constitutional Court judgment
onwards and that for compensation for the value of the property which
was never returned to her cannot be entertained.
As
to the amount of rent for the period during which the owners
were deprived of the possession and use of their property, a matter
which had been reserved by the Constitutional Court and which is
currently pending before the domestic courts, the Court considers
that, having examined the circumstances of the case, the question of
compensation for pecuniary damage in this respect 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 applicant
(Rule 75 § 1 of the Rules of Court).
The
Court awards the applicant EUR 25,000 in respect of non-pecuniary
damage.
B. Costs and expenses
The
applicant also claimed EUR 3,169.61, attaching a bill of costs, for
the costs and expenses incurred before the domestic courts and EUR
6,224.23 for those incurred before the Court.
The
Government submitted that according to the domestic courts’
judgments at various levels of jurisdiction most of the costs were to
be borne by the Government; the relevant costs to be paid by the
applicant amounted to EUR 1,454.19 only. As to the costs incurred
before this Court, the Government argued that they were excessive and
should not exceed EUR 3,000.
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 did not find
a violation of Article 13, but found, however, a violation of Article
6 and Article 1 of Protocol No. 1 to the Convention, the latter
having already been established by the domestic courts. The Court,
moreover, accepts the Government’s argument in relation to the
costs in the domestic proceedings. Thus, regard being had to the
documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 5,000 to cover the
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 remainder of the application
admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds that there has been a violation of Article
1 of Protocol No.1 to the Convention;
Holds that there has been no violation of
Article 13 of the Convention;
Holds that, as far as the financial award to the
applicant for pecuniary damage resulting from the violation 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 in part, namely in so far as it relates to the
amount of rent for the period during which the owners were deprived
of the possession and use of their property, that is until 2007;
(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,
i)
EUR 25,000 (twenty–five thousand euros) plus any tax that may
be chargeable, in respect of non-pecuniary damage;
ii)
EUR 5,000 (five-thousand euros) 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 amounts 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 5 April 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
ANNEX A
The proceedings before the LAB - Application number 28/76
Commissioner of Lands vs Alfio Testaferrata Bonici Ghaxaq
Application filed by CoL in
the Registry
14.05.1976 Reply filed by the
respondent in the Registry
First Hearing: legal counsel
for respondent requested an adjournment awaiting judgment in the
case ‘Carmela Mercieca vs Commissioner of Lands’
pending in front of the Court of Appeal. Adjourned.
Board ordered adjournment.
Board ordered adjournment.
Board ordered adjournment.
Case in the names ‘Mercieca
vs Commissioner of Lands’ still pending. Adjourned.
Board ordered adjournment.
Board ordered adjournment
Case in the names ‘Mercieca
vs Commissioner of Lands’ still pending. Adjourned.
Board ordered adjournment.
Board ordered adjournment.
Board ordered adjournment.
Board not appointed.
Adjourned.
Board ordered adjournment.
Case in the names ‘Mercieca
vs Commissioner of Lands’ still pending. Adjourned.
Case in the names ‘Mercieca
vs Commissioner of Lands’ still pending. Adjourned.
Case in the names ‘Mercieca
vs Commissioner of Lands’ still pending. Adjourned.
Case in the names ‘Mercieca
vs Commissioner of Lands’ still pending. Adjourned.
Case in the names ‘Mercieca
vs Commissioner of Lands’ still pending. Adjourned.
Case in the names ‘Mercieca
vs Commissioner of Lands’ still pending. Adjourned.
Board ordered adjournment.
Awaiting judgment in the
names ‘Commissioner of Lands vs Attard’. Adjourned.
Board ordered adjournment.
Board ordered adjournment.
Board ordered adjournment.
Case adjourned.
Member of the Board unable to
attend. Adjourned.
Note filed by Dr Goffredo
Randon renouncing to defence of Respondent. Awaiting judgment in
the names ‘Mercieca vs Commissioner of Lands’.
Respondent to inform the Board about the legal counsel. Adjourned.
Chairman of the Board unable
to attend. Adjourned.
Awaiting judgment in the
names ‘Mercieca vs Commissioner of Lands’. Adjourned.
Board ordered adjournment.
Board ordered adjournment.
Board ordered adjournment.
Board ordered adjournment.
Board ordered adjournment.
Board ordered adjournment.
Board ordered adjournment.
Chairman sitting in other
Court. Adjourned.
No chambers available.
Adjourned.
Member of the Board unable to
attend sitting. Adjourned.
Member of the Board did not
attend sitting. Adjourned.
Board ordered adjournment.
Member of the Board did not
attend sitting. Adjourned.
Member of the Board did not
attend sitting. Adjourned.
Case adjourned for evidence
to be produced by respondent. Adjourned.
Legal counsel to respondent
did not attend. Adjourned to the ‘legittimazzjoni
ta’ l-atti’
following death of respondent. Adjourned.
Board ordered adjournment.
Board ordered adjournment.
Member of the Board did not
attend sitting. Adjourned.
Awaiting judgment in the case
‘Mercieca vs Commissioner of Lands’. Adjourned.
Board ordered adjournment.
Parties did not attend
sitting. Adjourned
Respondent requested an
adjournment. Adjourned.
Respondent did not attend
sitting. Adjourned.
Board not appointed.
Adjourned.
Board not appointed.
Adjourned.
Chairman of Board sitting in
another Court. Adjourned.
Legal Counsel for respondent
informed board that constitutional proceedings were going to be
instituted. Case adjourned.
Chairman of Board sitting in
another court. Adjourned.
Chairman of Board sitting in
another court. Adjourned.
Member of the Board did not
attend sitting. Adjourned.
Legal Counsel for respondent
requested an adjournment for finalization of ‘legittimazzjoni
ta’ l-atti’.
Adjourned.
Respondent requested Board
adjournment and that submissions in cases 26/76 and 27/76 apply to
this case.
Board ordered adjournment.
Applicant requested that
cases continue to be heard. Respondent requested an adjournment.
Adjourned.
08.02.1993 Board not appointed.
Adjourned.
12.04.1993 Case adjourned.
Chairman unable to attend
sitting. Adjourned.
Board ordered adjournment.
Board ordered adjournment
Respondent requested an
adjournment. Adjourned.
Legal Counsel for respondent
informed board that there is possibility of settlement out of
court. Adjourned for possible settlement out of court. Adjourned.
Adjourned for possible
settlement out of court.
Adjourned for possible
settlement out of court.
10.06.1994 Adjourned for
‘legittimazzjoni
ta’ l-atti’
13.10.1994 Adjourned.
Adjourned for
‘legittimazzjoni ta’ l-atti’
Adjourned for
‘legittimazzjoni ta’ l-atti’.
Adjourned for
‘legittimazzjoni ta’ l-atti’.
Adjourned for
‘legittimazzjoni ta’ l-atti’.
Adjourned.
Adjourned for
‘legittimazzjoni ta’ l-atti’.
Adjourned for the parties to
indicate evidence.
Adjourned for remaining
evidence of the parties.
Case adjourned sine die
awaiting judgments in the constitutional applications in the names
‘Jensen et vs Commissioner of Land’ (application
number 543/96 and ‘Agnese Gera de Petri Testaferrata Bonici
Ghaxaq vs AG et’ (application number 537/96)
ANNEX B
Constitutional Redress proceedings
Agnes Gera de Petri Testaferrata Bonici Ghaxaq vs AG et
– 537/96
25.03.1996 First Hearing -
Adjourned for evidence.
24.04.1996 Board informed that
Manoel Theatre Committee filed an application for joinder in the
suit, adjourned.
03.06.1996 Court ordered Manoel
Theatre Committee to bring evidence relative to distinct judicial
personality and evidence of leases with third parties, adjourned.
26.06.1996 Adjourned to for
cross examination of witnesses tendering their evidence at this
sitting
09.06.1996 Legal Council to the
parties could not attend sitting, adjourned.
06.11.1996 Witnesses tendered
evidence, adjourned
11.12.1996 Case adjourned for
evidence
12.02.1997 Case adjourned for
oral submissions
05.03.1997 Case adjourned for
oral submissions
24.03.1997 Oral submissions,
adjourned for decree
02.07.1997 Court needs more
time to decree, adjourned
04.07.1997 Decree by the Court,
adjourned for continuation
03.11.1997 Evidence tendered,
adjourned for applicant’s evidence
10.12.1997 Evidence tendered,
adjourned for applicant’s evidence
16.02.1998 Evidence tendered,
adjourned for applicant to conclude
11.03.1998 Evidence tendered
for respondent’s evidence
27.03.1998 Respondent
authorised to produce evidence by affidavit, adjourned for cross
examination and respondent’s evidence
29.05.1998 Respondent
authorised to file affidavits till 24 June 1998, adjourned for
cross examinations and oral submissions
26.06.1998 Case adjourned for
judgment, written submissions to be filed by applicant till 14
August 1998 and by respondent till the 30 September 1998
18.01.1999 First Hall delivered
its judgment
25.01.1999 Appeal filed
01.02.1999 Case appointed in
front of Constitutional Court
03.11.1999 Written submissions
filed by Prof Refalo, adjourned
26.01.2000 Court ordered
adjournment
05.04.2000 Oral submissions,
adjourned for continuation
19.06.2000 Prof Refalo
requested an adjournment, adjourned.
09.10.2000 Court ordered
adjournment
11.12.2000 Note filed by
respondent, adjourned for final oral submissions
31.01.2001 Court ordered
adjournment
04.04.2001 Adjourned for
applicants to examine reply of respondent and for continuation
18.06.2001 Prof Refalo
requested an adjournment, adjourned for continuation
29.10.2001 Court ordered
adjournment
18.02.2002 Court ordered
adjournment
15.04.2002 Court ordered
adjournment
12.06.2002 Prof Refalo
requested that fresh evidence be produced, Court requested Prof
Refalo to make this request by means of an application, adjourned
for final oral submissions
11.11.2002 Prof Refalo informed
Court that his client’s application was served on the
Government days prior to the sitting and that the period fixed for
reply was still running, adjourned.
19.02.2003 Adjourned for oral
submissions
07.04.2003 Oral submissions on
request to produce fresh evidence, adjourned for decree
03.10.2003 Court ordered
adjournment
10.10.2003 Court needs more
time for decree, adjourned
16.12.2003 Court needs more
time for decree, adjourned
27.02.2004 Court needs more
time for decree, adjourned
30.06.2004 Court needs more
time for decree
29.10.2004 Court needs more
time for decree
16.12.2004 Court needs more
time for decree
28.01.2005 Court needs more
time for decree
25.02.2005 Decree read in open
court, adjourned for oral submissions
18.04.2005 Oral submissions,
adjourned for further oral submissions
13.06.2005 Further oral
submissions, adjourned for judgment
04.11.2005 Court needs more
time for judgment, adjourned
12.12.2005 Court needs more
time for judgment, adjourned
30.03.2006 Court needs more
time for judgment, adjourned
26.05.2006 Court needs more
time for judgment, adjourned
07.07.2006 Court needs more
time for judgment, adjourned
13.10.2006 Court needs more
time for judgment, adjourned
20.11.2006 Court needs more
time for judgment, adjourned
27.11.2006 Court needs more
time for judgment, adjourned
08.01.2007 Constitutional Court
delivered judgment.
