FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 38244/03
by Salvatore ABDILLA
against Malta
The European Court of Human Rights (First Section), sitting on 3 November 2005 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsF. Tulkens,
MrsE. Steiner,
MrD. Spielmann,
MrS.E. Jebens, judges,
MrJ.G. Valenzia, ad hoc judge,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 24 November 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Salvatore Abdilla, is a Maltese national, who was born in 1925 and lives in Birzebbuga (Malta). He is represented before the Court by Mrs M.A. Farrugia and Mr P. Lofaro, two lawyers practising respectively in St. Venera and in Valletta (Malta). The respondent Government were represented by their Agent, Mr S. Camilleri, Attorney General.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The taking of the applicant’s land
The applicant owned a farm and an adjacent portion of land in Zebbug, close to a road called Notabile Road. According to the original Government development schemes, a small part of this land should have been expropriated in order to widen the road with 60 centimetres.
In 1985 the Maltese authorities entered into the property of the applicant, demolished parts of it and took 136.1 square meters of it.
By a Presidential Declaration of 27 January 1986 (no. 78), issued in terms of the Land Acquisition Public Purposes Ordinance (Chapter 88 of the Laws of Malta), it was declared that the property taken from the applicant was required for a public purpose.
The Presidential Declaration was published in the Government Gazette of 4 February 1986, as required by Article 9(1) of Chapter 88 of the Laws of Malta. At the relevant time, this publication did not transfer the ownership of the land to the Government. In particular, it was provided that the Commissioner of Lands should serve a copy of the Presidential Declaration on the owner of the land, together with a “notice to treat” informing him or her about the amount that the Commissioner was willing to pay. The owner subsequently had 21 days to state the amount which he claimed as compensation.
If the owner and the Commissioner agreed on the amount of the compensation due, either party could request the Land Arbitration Board to make an order carrying the agreement into effect. In case of disagreement between the owner and the Commissioner, the latter should file an application with the Land Arbitration Board requesting it to determine the amount of compensation due. In either case, a public deed of transfer had to be signed by the Government and the owner.
In the present case, until 2002 the Commissioner of Lands did not serve on the applicant the Presidential Declaration and the notice to treat. Therefore, the procedure to compensate the applicant and to transfer the legal ownership of the land was not initiated.
In 2002 Chapter 88 of the Laws of Malta was amended. Under the new Article 22 of this Chapter, ownership of the property is transferred upon publication of the Presidential Declaration in the Government Gazette. According to the new rules, the Presidential Declaration should state the amount that the Government will pay as compensation, to be deposited in an interest-bearing bank account. If the owner of the land does not consider this amount adequate, he may institute proceedings before the Land Arbitration Board.
According to a transitory provision of law, when, as in the applicant’s case, a Presidential Declaration had been issued before the entry into force of the 2002 amendments, the President should issue a fresh declaration wherein he shall state the amount of compensation which the Commissioner of Lands is willing to pay. According to the information provided for by the applicant on 24 March 2005, on that date no such fresh Presidential Declaration had been served on him. As a consequence, the applicant is still the legal owner of the land.
2. The construction of the road
The applicant alleged that in the meantime one of his neighbours, Mr Z., had been planning to develop his property into a petrol station and had been preparing the necessary infrastructures to do so. According to the applicant, Mr Z. was known as being very well connected with the then current administration. The applicant’s allegations were disputed by the Government on the ground that they were unsubstantiated.
The original Government development schemes were not followed, and Notabile road, Zebbug was widened and re-aligned differently. According to the applicant, the result of these changes was that motor vehicles were driven into the planned petrol station and evasive action should be taken if a vehicle did not want to enter into it. If a vehicle had continued straight, it would have collided into the wall of Mr Z.’s property. Since 1989 the Traffic Control Board had requested the road department to re-locate the wall in issue, which was eventually demolished and moved backward.
The applicant produced a plan which was annexed to the Presidential Declaration. According to the applicant, this document showed that the land was expropriated in such a way to make the main road lead directly into the property of Mr Z., thus creating an unnatural series of S bends. The re-alignment and widening of the road directed the traffic into three deviations, one to the left into the applicant’s property, then to the right to meet the roundabout alignment and finally to the left again to continue on the main road.
The Government disputed these allegations. They argued that the description given by the applicant was “charged with poetic licence and substantially misleading”. Relying on seven photographs and on an aerial view of the area in question, they challenged the view that the taking of part of the applicant’s land was done also in order to facilitate access to the petrol station.
The allegedly planned petrol station was never opened.
3. The applicant’s claim before the Civil Court
On 3 April 1992 the applicant instituted proceedings before the Civil Court (First Hall) in its constitutional jurisdiction against the Parliamentary Secretary for the Environment and Lands and against the Commissioner of Lands. He claimed that he had been deprived of his property illegally and without compensation and alleged a violation of Articles 37 and 38 of the Constitution of Malta as well as of Article 8 of the Convention and Article 1 of Protocol No. 1. The applicant submitted that the Presidential Declaration of 27 January 1986 was null and void and requested to be reinstated in his possession and to be granted a financial compensation for the loss suffered.
In a judgment of 24 November 1995 the Civil Court dismissed the applicant’s claims. It held that as the acts complained of took place before 30 April 1987 (date of the incorporation of the Convention into the Maltese legal system), it had no power to decide on the alleged breach of the applicant’s rights under Article 8 of the Convention and Article 1 of Protocol No. 1. As far as the Constitution of Malta was concerned, there was no doubt that the applicant could have invoked the alleged breach of Article 38 (right to the protection of home) in front of the ordinary courts, asking them to impede the authorities from demolishing his farm.
The same could not be said with regard to Article 37 of the Constitution (protection of property); however, it was apparent that the expropriation was done for a “public purpose”. This did not exclude the possibility that the expropriation might have involved the interest of third parties, provided that the use made by the said parties was connected with or ancillary to the public interest or utility. In the present case, in 1975 the architect of the Department of Lands had expressed the view that the realignment of the road was inevitable and in 1977 the Department of Lands had written to the Departments of Works to confirm that the expropriation had to be done. The latter was part of a project involving the entire road linking Zebbug and the town of Mdina.
It was true that according to the original plan, the applicant’s property was going to be only slightly affected. However, the project was changed and the road went much deeper into the applicant’s land, leading to a petrol station, owned by Mr Z. The Civil Court could accept that the expropriation was done also in the interests of third parties, but this did not exclude the existence of a public purpose, as there was no doubt that a petrol station was of utility to the public.
4. The applicant’s appeal to the Constitutional Court
The applicant appealed to the Constitutional Court.
In a judgment of 30 May 2003, the Constitutional Court declared that the taking of the applicant’s property before the issuing of the Presidential Declaration of 27 January 1986 constituted a violation of the plaintiff’s right of property (guaranteed by Article 38 of the Maltese Constitution and Article 1 of Protocol No. 1) and granted him a compensation amounting to 100 Maltese Liras (Lm – approximately 240 euros (EUR)). The Constitutional Court confirmed the judgment of the Civil Court as to the remainder and decided that the legal expenses should be borne one-third by the applicant and two-thirds by the respondents.
The Constitutional Court first observed that the Presidential Declaration was only the commencement of the expropriation procedure, which entailed an interference with the right guaranteed by Article 1 of Protocol No. 1 lasting until the individual was unable to enjoy his possessions or until there was effective transfer of property. Thus, notwithstanding the fact that the Presidential Declaration was issued before 30 April 1987, the matter felt within the competence ratione temporis of the Constitutional Court.
As to the lawfulness of the expropriation, it was to be noted that the authorities had entered the applicant’s property and demolished his farm already in 1985. This action was illegal as it was taken prior to the issuing of the Presidential Declaration and without prior notification. Moreover, the applicant did not have at his disposal any adequate means of redress, as any judicial action he might have commenced would have been nullified by the issuing of the Presidential Declaration.
As far as the applicant was complaining that the expropriation was not done for a public purpose, but to serve the interests of Mr Z., the Constitutional Court observed that only a deprivation of property effected for no reason other than to confer a private benefit on a private party could not be “in the public interest”. As the European Court of Human Rights had pointed out in the case of James and Others v. the United Kingdom (judgment of 21 February 1986, Series A no. 98), the compulsory transfer of property from one individual to another might, depending upon the circumstances, constitute a legitimate aim for promoting public interest. The Constitutional Court therefore did not see any reason to depart from the Civil Court’s finding that, after the issuing of the Presidential Declaration, the expropriation pursued a legitimate aim.Relevant domestic law
The acquisition of land for public purposes is regulated by Chapter 88 of the Laws of Malta. As amended in 2002, the relevant provisions of this Chapter read as follows.
Article 7 § 2
"(a) With respect to land subject to a declaration by the President before the coming into force of this article ... article 12(3) of the Ordinance as amended by this article shall apply ... Provided that the interests as aforesaid shall be calculated on the value of the land on the date of the President’s Declaration or where no such Declaration was issued prior to the coming into force of this article on the date of taking over by Government of the land in question.
(b) (i) The President may in relation to any land subject of a Declaration issued before the coming into force of this article issue a fresh Declaration wherein shall be stated the amount of compensation which the competent authority is willing to pay for the land to which the Declaration refers. ... Provided that when such fresh Declaration is issued the compensation shall be determined on the basis of the value of such land on the date of the service of any notice to treat in respect of such land, and where no such notice to treat has been so served, on the date of the issue of the fresh Declaration by the President. ...”
Article 12 § 3
“(3) Simple interest at the rate of five per centum per annum shall accrue on a daily basis in favour of any person having a right to compensation in respect of any land acquired by the absolute purchase thereof under this Ordinance, from the date of the Declaration of the President up to the date when the compensation is paid or deposited in accordance with article 22. The interest due shall accrue on the amount of compensation as established in accordance with this Ordinance.”
Article 22 §§ 1, 2, 3, 6, 7 and 10
“(1) If the competent authority and the owner agree as to the amount of compensation for any land, the Board, on the application of any one of the parties, shall make an order carrying the agreement into effect ...
(2) Where the land is to be acquired by the absolute purchase thereof ..., the President’s Declaration ..., shall state the amount of compensation which the competent authority is willing to pay for the land to which the declaration refers. ...
(3) Within fifteen working days from the publication of the President’s Declaration as is referred to in subarticle (2) in the Gazette the Government shall deposit in an interest bearing bank account (which will guarantee a minimum of interest per annum as the Minister responsible for lands may by regulation under this subarticle prescribe) a sum equal to the amount of compensation offered in the President’s Declaration. Such sum shall be freely withdrawn together with any interests accrued thereon by the person or persons entitled to such compensation upon evidence to the entitlement thereto, in a manner satisfactory to the competent authority.
...
(6) Where the person entitled to compensation does not accept that the amount deposited is adequate, such person may apply to the Board for the determination of the compensation in accordance with the provisions of this Ordinance. Such application shall, on pain of nullity, state the compensation that in the opinion of the applicant is due.
(7) Such application shall be filed in the Registry of the Board ... The Board shall determine such compensation and shall give all necessary orders and directives in accordance with this Ordinance.
(10) Where the compensation payable in respect of land acquired by the absolute purchase thereof is determined, whether by agreement or by decision of the Board, any sum due as compensation over and above any sum deposited in accordance with this article together with interests thereon in accordance with article 12(3), shall be paid to the person entitled thereto by the competent authority not later than three months from the date on which such compensation was determined as aforesaid.”
Article 27 § 1
“(1) Without prejudice to any special provision contained in this Ordinance, in assessing compensation the Board shall act in accordance with the following rules:
(a) no allowance shall be made on account of the acquisition being compulsory;
(b) the value of the land shall, subject as hereinafter provided, be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realize ...”
COMPLAINTS
1. Invoking Article 1 of Protocol No. 1, the applicant alleged that the taking of his property had not been done in the public interest.
2. The applicant complained under Article 13 of the Convention about the absence of an effective remedy with respect of the alleged violation of his right of property.
THE LAW
1. The applicant considered that the expropriation of his land violated his right to the peaceful enjoyment of his possessions. He argued that the interference with his right of property did not pursue the general interest of the community, but was done in order to confer an unjustified benefit to a private individual, Mr Z.
The applicant invoked Article 1 of Protocol No. 1, 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. The Government’s objection of non-exhaustion of domestic remedies
1. The arguments of the parties
a) The Government
The Government submitted that domestic remedies had not been exhausted. They observed that the applicant had never complained before the Maltese courts about the delay in completing the expropriation and in paying compensation. At the domestic level, the applicant had confined himself in seeking the annulment of the Presidential Declaration of 27 January 1986 and the reinstatement in the enjoyment of his property. He had sought compensation only for the violation of his fundamental rights and not for the expropriation of his property.
In the Government’s view, the applicant’s request for a restitutio in integrum was incompatible with his complaint that the expropriation took too much time. The authorities could not proceed with the expropriation while its validity was being challenged before the domestic courts. The Land Arbitration Board would have suspended any proceedings for the fixing of the compensation awaiting the result of the constitutional proceedings instituted by the applicant. Moreover, the applicant had never requested to fix a time-limit for the issuing of a notice to treat.
b) The applicant
The applicant disputed the Government’s arguments. He observed that his complaint was based on the fact that he had to bear an excessive individual burden and not on the length of the expropriation proceedings or on the lack of payment of compensation. He therefore considered that the Government’s preliminary objection of non-exhaustion was irrelevant.
2. The Court’s assessment
The Court considers that it is not necessary to ascertain whether the applicant has exhausted all available domestic remedies with respect to his complaint under Article 1 of Protocol No. 1. Even assuming that these remedies have been exhausted, the application is in any event inadmissible, for the following reasons.
B. The merits of the applicant’s complaint
1. The arguments of the parties
a) The applicant
The applicant alleged that the Presidential Declaration of 27 January 1986 was the initial step in a procedure leading to a deprivation of possessions. Although it did not formally transfer ownership of the property to the Government, it annihilated, in practice, the applicant’s right to use and enjoy his land. According to Section 12 §§ 2 and 3 of Chapter 88 of the Laws of Malta, as in force at the relevant time, within fourteen days from the date of the publication of the Presidential Declaration the authorities were entitled to take possession of the land without further formalities and irrespective of any restriction imposed by law. Thus, the Government acquired all the rights of the owner, except a formal title. The applicant’s sole right was to receive compensation, and while he could, in theory, sell his property to a third party, it was in practice impossible to find a potential buyer or a bank willing to grant hypothec or mortgage on the land.
Furthermore, the authorities had illegally and arbitrarily entered into the property and demolished the farmhouse built on it one year before the issuing of the Presidential Declaration. As the Constitutional Court itself had acknowledged, the applicant had no ordinary means of redress against these actions, as any claim would have been nullified by the effects of the Presidential Declaration. The applicant therefore submitted that the situation complained of amounted to a de facto expropriation.
As to the justification of the interference, the applicant first pointed out that, contrary to what had been argued by the Government, the Civil Court had expressly stated that it could accept as a fact “that the expropriation was done also in the interests of [a] third party”. Moreover, during the domestic proceedings, the applicant had declared on oath that Mr Z. was planning to build a petrol station and had already installed the necessary tanks below the ground level. The Government did not produce any evidence to challenge these statements.
According to the applicant, the authorities exclusively wished to confer a private benefit to Mr Z., a “well-connected person”. Even if petrol might be useful for the public, the station was private ownership of Mr Z., who was the only one who could benefit from it. Furthermore, another petrol station was available within a radius of 500 meters from the applicant’s property. The applicant considered that he had to bear an excessive and disproportionate burden in order to accommodate the private commercial interests of Mr Z. and submitted that “making well-connected rich businessmen richer” could not be considered part of any “public interest’.
Referring to his description of the re-alignment of Notabile road, the applicant submitted that the road design was unsafe, as it was shown by the number of serious accidents which had occurred. The authorities had created unnatural curves which cars had to tackle in order to avoid entering into the petrol station or colliding into Mr Z.’s wall. The applicant challenged the Government’s argument that the widening of the road had afforded drivers more room to avoid head-on collisions with oncoming traffic. He observed that this view was not shared by the domestic courts and that it had not been demonstrated that the same result could not have been obtained under the original development schemes. Moreover, if the bend on the road constituted a traffic hazard, the public interest would have been better served by reducing the sharpness of the bend than by creating a different traffic hazard on the opposite side of the road.
In the light of the above, the applicant was of the opinion that the traffic had not been managed and organised in accordance with the public interest.
Referring to the case of Hentrich v. France (see judgment of 22 September 1994, Series A no. 296-A), the applicant submitted that the payment of financial compensation is not necessarily sufficient to compensate for the loss of property. Even assuming that he will eventually receive just compensation for the expropriation, there would still be a lack of proportionality between the measure complained of and the aim sought to be achieved.
b) The Government
The Government considered that there was an interference with the applicant’s right to peaceful enjoyment of possessions, as the road widening works were in part carried out on his land. However, they alleged that in the period between the issuing of the Presidential Declaration of 27 January 1986 and the actual transfer of the ownership of the land, the applicant had only been submitted to a measure aimed at controlling the use of property in accordance with the general interest.
In the Government’s view, none of the Maltese courts ever acknowledged that the widening of the road served the interests of a third party. The domestic tribunals confined themselves to not excluding, for the sake of argument, that also third party interests could have been at stake. No permits were ever issued for the opening of the petrol station and the property taken from the applicant eventually became a garage for the anti-rust treatment of vehicles.
The applicant’s argument that the road widening was done in such a manner as to lead vehicles straight into the alleged petrol station was based on the assumption that drivers were not able to use their steering wheels and to recognise a road exit display, or that they would buy petrol even if they did not need it or had not planned to do so.
Planning of public roads and road widening projects normally involved decisions of a policy nature with multifarious aspects, and the choice of the best way to pursue the legitimate aims at stake fell within the margin of appreciation of the domestic authorities. In the present case, the road in issue was one of Malta’s principal highways, where large amounts of traffic were passing every day. Its widening afforded drivers more room to avoid collisions in a place close to a bend and where vehicles were likely to leave the road. In the Government’s view, the community at large had benefited from the direct use of the property taken by the State. The action of the authorities was influenced by town planning and traffic management considerations and even assuming that some third parties might have benefited from the road-widening more than the other members of the community, the measures complained of would still be in conformity with the public interest.
As to the proportionality of the interference, the Government alleged that the Convention requirements were satisfied when an owner deprived of his property received adequate compensation. In the present case, according to domestic law, from the date of the taking of the land until the date of the payment of its value the applicant was entitled to simple interest at a rate of five percent per annum. This would compensate the applicant for the control of the use of his property during the period before the transfer of the ownership. Moreover, in order to proceed with the expropriation, a fresh Presidential Declaration should be issued, and the applicant should be paid the price of the land as a building site at the date of the issuing of this new act. He will therefore benefit from any increase in the price of the land since 1985.
In view of the above, the Government considered that the individual burden imposed on the applicant had not been excessive.
2. The Court’s assessment
As the Court has stated on a number of occasions, Article 1 of Protocol No. 1 comprises three distinct rules: “the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated 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 ... . The three rules are not, however, ‘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 and should therefore be construed in the light of the general principle enunciated in the first rule” (see, among other authorities, James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, pp. 29-30, § 37; Iatridis v. Greece [GC], no. 31107/96, § 55, ECHR 1999-II; Beyeler v. Italy [GC], no. 33202/96, § 98, ECHR 2000-I).
a) Whether there has been an interference
It is not contested by the Government that the road widening works were carried out on the applicant’s land and that in 1985 the authorities entered on the said land and took 136.1 square meters of it. However, since there had not been a formal transfer of the ownership of the land, the Government submitted that the applicant had not been deprived of his possessions.
In order to determine whether there has been a deprivation of possessions within the meaning of the second rule, the Court must not confine itself to examining whether there has been dispossession or formal expropriation, it must look behind the appearances and investigate the realities of the situation complained of. Since the Convention is intended to guarantee rights that are “practical and effective”, it has to be ascertained whether that situation amounted to a de facto expropriation (see, among other authorities, Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, pp. 24-25, § 63, and Vasilescu v. Romania, judgment of 22 May 1998, Reports of Judgments and Decisions 1998-III, p. 1078, § 51).
In the present case, the Presidential Declaration of 27 January 1986 officially stated that the property taken from the applicant was required for a public purpose. Moreover, a road had been built on it and it would in practice be impossible for the applicant to enjoy, sell or rent his property. Under these circumstances, the Court finds that there had been a deprivation of possessions within the meaning of the first paragraph of Article 1 of Protocol No. 1.
A taking of property within this second rule can only be justified if it is shown, inter alia, to be “in the public interest” and “subject to the conditions provided for by law”. Moreover, any interference with the 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). Furthermore, the issue of whether a fair balance has been struck “becomes relevant only once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary” (see Iatridis cited above, § 58, and Beyeler cited above, § 107).
b) Compliance with the requirement of lawfulness
The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful. The rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Iatridis cited above, § 58) and entails a duty on the part of the State or other public authority to comply with judicial orders or decisions against it (see Belvedere Alberghiera v. Italy, no. 31524/96, § 56, ECHR 2000-VI). Moreover, the requirement of lawfulness means that rules of domestic law must be sufficiently accessible, precise and foreseeable (see Hentrich v. France, judgment of 22 September 1994, Series A no. 296-A, pp. 19-20, § 42, and Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, p. 47, § 110).
As to the period preceding the issuing of the Presidential Declaration of 27 January 1986, it is to be noted that in its judgment of 30 May 2003 the Constitutional Court had acknowledged that the occupation of the applicant’s land in 1985 was illegal and had breached the plaintiff’s right of property. Compensation was granted to the applicant for this reason. Therefore, the latter cannot claim to be a victim of the initial unlawfulness of the occupation of his land.
It is not disputed that after the issuing of the Presidential Declaration of 27 January 1986, the taking of the applicant’s land was based on Chapter 88 of the Laws of Malta. Nothing shows that the provisions of this Chapter had been interpreted or applied in an arbitrary manner. Nor could it be said that these rules were not accessible or that the effects of the Presidential Declaration were not foreseeable.
The Court therefore concludes that the measure complained of satisfied the requirement of lawfulness within the meaning of Article 1 of Protocol No. 1. It remains to be determined whether it pursued a legitimate aim and whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.
c) The aim of the interference
Any interference with the enjoyment of a right or freedom recognised by the Convention must pursue a legitimate aim (see Beyeler cited above, § 111).
The applicant submitted that his land had been taken in order to confer a private benefit to Mr Z., who was planning to open a petrol station. According to the applicant, this was shown by the structure of the road itself, which would lead vehicles directly into the planned petrol station unless evasive action was taken by drivers. The Government disputed this, alleging that the main aim of the expropriation procedure was to widen the road and to afford vehicles more space in a potentially dangerous crossing-point.
The Court has examined the plans and the photographs produced by the parties. These documents show that Notabile Road had been widened, and even if vehicles have to make slights turns in order to follow the mainstream direction, the Court cannot reach the conclusion that the whole project was aimed at driving cars into the petrol station which, according to the applicant, should have been built on his property. The applicant failed to produce elements capable of showing that his suspicions concerning the real aim of the road-widening works were well-founded.
As the Civil Court had acknowledged, it cannot be ruled out that the authorities took into account also the interests of third parties. However, in view of the material at its disposal, the Court is of the opinion that the measure complained of pursued the legitimate aim of managing road traffic in a more efficient and secure way.
d) Whether the interference was justified
The Court considers that, in an area as complex and difficult as that of the development of the country, the Contracting States should enjoy a wide margin of appreciation in order to implement their planning policy (see Terazzi S.r.l. v. Italy, no. 27265/95, § 85, 17 October 2002, and Elia S.r.l. v. Italy, no. 37710/97, § 77, ECHR 2001-IX). Nevertheless, the Court cannot fail to exercise its power of review and must determine whether the requisite balance was maintained in a manner consonant with the applicant’s right of property (see, mutatis mutandis, Sporrong and Lönnroth cited above, p. 26, § 69).
In the present case, the taking of the applicant’s property was done in order to widen a road which, as the Government pointed out, was one of the country’s main highways. The community at large benefited from these works, especially since many vehicles were passing on it every day and it was reasonable to believe that traffic could have been managed in a safer way by affording drivers more room in a place close to the intersection with other roads. While it cannot be excluded that the road could have been designed and planned differently, it has not been shown in an unequivocal manner that the same or a better efficiency could have been reached by imposing a lesser sacrifice on the applicant’s property rights.
Having regard to the margin of appreciation that Article 1 of Protocol No. 1 affords national authorities in the fields of country planning and traffic management, the Court does not find it established that the expropriation of the applicant’s land was not a measure necessary to achieve the legitimate aim sought by the authorities.
The Court furthermore reiterates that compensation terms under the relevant legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it does not impose a disproportionate burden on the applicant. 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. This provision does not, however, guarantee a right to full compensation in all circumstances, since legitimate objectives of “public interest” may call for less than reimbursement of the full market value (see The Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, p. 35, § 71).
In this respect, the Court first notes that in his observations in reply the applicant clearly stated that his complaint under Article 1 of Protocol No. 1 was not based on the delay in completing the expropriation proceedings or in paying compensation. Furthermore, these issues were not explicitly raised in the ambit of the domestic constitutional proceedings, in which the applicant mainly confined himself to challenge the lawfulness of the expropriation and to requesting the annulment of the Presidential Declaration of 27 January 1986.
Furthermore, the Government pointed out that when the ownership of the land will be formally transferred, the applicant will in principle be entitled to receive a sum equal to the price of the land as a building site. He should moreover be granted a simple interest at a rate of five percent per annum in order to compensate the loss of the control of his property.
It is not possible for the Court to speculate, at this stage, about the outcome of the compensation proceedings, which are currently suspended awaiting the issuing of a fresh Presidential Declaration.
In view of the above, the Court finds that the measure complained of was not disproportionate to the legitimate aim pursed and that the applicant was not imposed a disproportionate burden.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant considered that he did not have at his disposal an effective remedy before a national authority for his claim concerning the alleged violation of his right of property. He invoked Article 13 of the Convention, which reads 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 applicant observed that the Constitutional Court had declared that before the issuing of the Presidential Declaration the occupation of the land constituted a violation of Article 1 of Protocol No. 1. However, it had granted a derisory sum as compensation, thus rendering the protection of his fundamental rights merely theoretical and illusory. Moreover, the Constitutional Court ordered him to pay one-third of the costs of the first-instance and appeal proceedings, and these legal expenses exceed Lm 100. The applicant was therefore put in a worse financial position than the one he was in before he initiated the judicial proceedings before the Civil Court.
The Court considers that it is not necessary to ascertain whether the applicant had an “arguable claim” under Article 1 of Protocol No. 1 and whether, therefore, Article 13 is applicable to the facts of the present case (see, for instance, Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52). Even assuming that this complaint is not incompatible ratione materiae with the provisions of the Convention, this part of the application is in any event manifestly ill-founded, for the following reasons.
The Court recalls that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicants’ complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or the omissions of the authorities of the respondent State (see Aydin v. Turkey, judgment of 25 September 1997, Reports 1997-VI, p. 1895, § 103, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, pp. 329-330, § 106).
In the present case, the applicant had the possibility of introducing before the Civil Court a constitutional complaint concerning the alleged violation of his right of property. His arguments had been examined in detail by the Civil Court, which had the power to declare, if need be, that the applicant’s fundamental rights had been infringed. Moreover, an appeal against the judgment of the Civil Court was available to the applicant and at its outset the Constitutional Court indeed found a breach of the applicant’s right of property for the period preceding the issuing of the Presidential Declaration of 27 January 1986 (see, mutatis mutandis, Arrigo and Vella v. Malta (Dec.), no. 6569/04, 10 May 2005).
It is true that the applicant’s claims had been partly rejected and that the compensation awarded had been lower that expected; however, the effectiveness of a remedy does not depend on the certainty of a favourable outcome (see Pine Valley Developments Ltd and others v. Ireland, judgment of 29 November 1991, Series A no. 222, p. 27, § 66). The Court moreover observes that the sum granted by the Constitutional Court was not meant to compensate the taking of property, but only the unlawfulness of the occupation of the land for the few months preceding the issuing of the Presidential Declaration.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy