THIRD SECTION

CASE OF CACHIA AND OTHERS v. MALTA

(Application no. 72486/14)

JUDGMENT

STRASBOURG

22 January 2019

This judgment is final but it may be subject to editorial revision.

In the case of Cachia and Others v. Malta,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Helen Keller, President,
Branko Lubarda,
Alena Poláčková, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 18 December 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 72486/14) 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 ten Maltese nationals (see Appendix) (“the applicants”), on 13 November 2014.

2. The applicants were represented by Dr D. Camilleri, Dr M. De Marco and Dr J. Gatt, lawyers practicing in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General.

3. On 27 May 2016 the application was communicated to the Government.

4. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Background to the case

5. The applicants claim to be the owners of the land at issue in the present case. It appears from the documents in the case‑file that the applicants along with two other persons own one third undivided shares of part of that property.

6. By a judicial letter of 15 February 1969 the applicants’ father (PC) was notified with a copy of a declaration by the Governor General whereby it was being declared that six plots of land in Kalafrana and Bengħajsa, limits of Birżebbuġa, Malta, were required for a public purpose and thus the Governor General was acquiring the said property by title of full ownership.

7. A similar letter dated 26 February 1969 was notified to the applicants’ father sometime later. The latter concerned another piece of land consisting of around 22,480 square metres close to the sea (Plot 60 ‑ hereinafter referred to as Land B).

8. Sometime later PC was notified with an offer of compensation in the amount of 4,492 Maltese Liras (MTL), approximately 10,464 Euros (EUR) in respect of the six plots of land mentioned above. He refused to accept the amount of compensation.

9. Subsequently the Commissioner of Land (CoL) started the procedure before the Land Arbitration Board (LAB), in order to transfer the land and establish the amount of compensation to be paid.

10. A part of the six plots of land were used for the purposes of the Malta Freeport (hereinafter Land A). However, parts of the same six plots were not used for this purpose and Land B remains unused to date. According to the Government they were not left unused but simply not built, as they were used as a buffer zone for security purposes.

B. First set of constitutional redress proceedings

11. In 1997 PC instituted constitutional redress proceedings concerning part of those six plots of land which had been taken but remained unused (Land C). By a final judgment of 28 December 2001, the Constitutional Court found in favour of the applicants and declared the Government’s declaration in respect of that land (which was outside the Freeport zone) as without effect from the date of the first‑instance judgment, 9 April 1999.

12. As a result of the Constitutional Court’s judgment, the proceedings before the LAB were ceded by the CoL on 8 April 2003. As a result of the CoL’s action, no compensation was ever determined for the taking of the applicants’ remaining land (A and B).

C. The second set of constitutional redress proceedings

13. In 2006 PC and his wife instituted constitutional redress proceedings in connection with the part of the six plots of land which was actually used for the purposes of the Freeport (Land A), as well as Land B which had remained unutilised. Invoking Article 1 of Protocol No. 1 to the Convention and Article 6 of the Convention, they asked the court to declare the declaration of the Governor General null, to return the unused parts of the land, to award compensation in respect of the land which had been used, and to redress the violations found. In particular they argued that the land had not been expropriated for a public purpose, but for a commercial purpose given that the CoL had transferred the land to the Malta Freeport Corporation and in 1989 with the introduction of the Freeport Act, the land became part of the Freeport. The Freeport was eventually privatised in 2001 and sold to an international company in 2004.

14. During these proceedings, on 4 November 2008, a doubt was raised by the Government and the technical expert as to the exact size of Land B, in so far as the site plans (attached to the applicants’ application to the domestic courts) drafted by the architect included an extra area which appeared to be owned by the Government. The Government thus requested the court to determine the confines of the expropriated land, and thereafter the title of the applicants to the land in question. The Government noted that both elements were necessary to define the juridical interest of the applicants.

15. The parties agreed that they would attempt to find relevant documentation to this effect. Various documentation was subsequently submitted to the court, including purchase contracts in the name of PC, although these were often not accompanied by the relevant plans of the land. According to the conclusions of a technical report drawn up on the matter by a court‑appointed architect in June 2009, Land B as shown on the plans which were submitted by the applicants with the application to the Civil Court (First Hall), included a piece of land which PC had already sold to a third party, the remaining parts which were expropriated were the property of the applicants.

16. By a decree of 30 September 2010 the applicants as heirs of their parents who passed away intervened in the proceedings in their stead.

17. By a judgment of 2 October 2013, the Civil Court (First Hall) in its constitutional competence rejected the Government’s objection as to non‑exhaustion of ordinary remedies and found in favour of the applicants in part. It found that there had been a violation of the Convention provisions invoked in connection with Land B which had remained unused in so far as the taking lacked any public interest. It thus declared the Governor declaration in that respect to be null and void. It further ordered the release of that land and the payment of EUR 30,000 in compensation for the years during which the applicants had been denied the use of their land. It however rejected the applicants’ claims in connection with Land A, which it considered had been taken from the applicants in the public interest.

18. Both the applicants and the defendants appealed.

19. By a judgment of 30 May 2014 the Constitutional Court upheld the Government’s appeal and rejected that lodged by the applicants.

20. The Constitutional Court considered that there was no doubt that the Freeport was established in the public interest namely the economic development of the country and therefore the taking of Land A was Convention compatible. As to compensation in respect of Land A, it considered that the applicants had not raised, before the first‑instance court, a complaint about a lack of proportionality, and thus they could not raise this matter on appeal. It followed that no compensation was due in that respect.

21. As to Land B, the Constitutional Court acknowledged that the Government had not made any objection in the sense that the applicants were not the owners of the property, nor that proof was required as to ownership of that land. There also appeared to be no doubt that this property formed part of the property referred to in the Governor’s declaration notified to the applicants’ father. Nevertheless, the Constitutional Court considered that during the first‑instance proceedings, on 4 November 2008, a doubt was raised as to the matter by the Government and the technical expert, which was eventually never resolved before the first‑instance court. The latter court had, nevertheless, proceeded to give judgment, instead of allowing the applicants some time to institute a relevant procedure to determine their ownership of the property. However, in such a circumstance the Constitutional Court considered that it could not give a remedy to the applicants in the absence of proof of their ownership. It thus revoked that part of the first‑instance judgment which had found a violation and had awarded compensation in respect of Land B.

II. RELEVANT DOMESTIC LAW

22. The relevant domestic law and practice concerning the case can be found in Frendo Randon and Others v. Malta (no. 2226/10, §§ 26‑29, 22 November 2011).

23. Further, Section 3 (1) of the Malta Freeports Act, Chapter 334 of the Laws of Malta, enacted in 1990, reads as follows:

“The areas of Malta shown on the plan enrolled by the Secretary General of the Government of Malta in the records of the Chief Notary to Government, Dr. Franco Pellegrini, of the 25th April, 1989, shall, for all intents and purposes of this Act and of any other law, constitute Freeport zones. The said areas are indicated in the plan shown in the Schedule.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1

24. The applicants complained about the expropriation of their land. In particular they claimed that the land had not been taken for a public purpose since the Freeport was a commercial entity. Moreover, they had been paid no compensation in connection with the takings of Lands A and B contrary to that provided in 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.”

25. The Government contested that argument.

A. Admissibility

1. Land A

(a) The parties’ submissions

26. Relying on Bezzina Wettinger and Others v. Malta, no. 15091/06, 8 April 2008 and J. Lautier Company Limited v. Malta (dec.) no. 37448/06, 2 December 2008 (where the court had found that the applicants in those cases had not raised the issue of compensation before the domestic courts) the Government submitted that the complaint before the domestic courts was strictly limited to a claim that the lands had not been taken for a public purpose since the Freeport was a commercial entity and the issue of compensation was only referred to in a generic manner. This claim concerning the public interest was repeated all throughout their application to the domestic courts, together with the fact that the violation arose as a result of the failure to use the land. No claim relative to compensation for the taking was made before the domestic courts. Their only claim for compensation was in respect of the occupation of the property, indeed they had asked the court to “release the property” and “establish the compensation due to the applicants for the sixty years during which they were deprived of the use of this property” meaning that they wer