Published on 20 March 2023
SECOND SECTION
Application no. 42584/21
B & B PROPERTY DEVELOPMENT CO LTD
against Malta
lodged on 18 August 2021
communicated on 1 March 2023
SUBJECT MATTER OF THE CASE
The application concerns the applicant company’s land (5,474.5 sq.m.) in Mosta which was expropriated in 1977. At the time no ‘notice to treat’ offering compensation was issued by the Government. The latter transformed the land into a reservoir and a water culvert (on top of which a public garden was developed). The rest of the land was mostly turned into roads, apart from a part which remained unused. In 1987 the Government revoked the expropriation with the exception of the part of the land which had been used for the reservoir (2.250 sq.m.), despite maintaining in its possession the other parts of the land which had been used. The law at the time (Chapter 88 of the Laws of Malta) did not provide for any ordinary avenue for the applicant company to seek compensation and the Government remained inactive.
In August 2016 the applicant company instituted constitutional redress proceedings complaining under Article 1 of Protocol No. 1 to the Convention of a breach of its property rights, and under Article 6 of the Convention about the delays in the procedures and the denial of access to court. Pending these proceedings, on 25 April 2017, Chapter 573 of the Laws of Malta was promulgated, repealing Chapter 88 and making radical changes to the applicable compensation and interest for expropriations, and providing an ordinary avenue to claim compensation. Also pending the constitutional proceedings, the parts of the land used for the reservoir and the water culvert were re-expropriated in 2018 and 2019 respectively and challenges to the low amounts offered under the new law for those parts of the land were lodged by the applicant company and are currently still pending.
By means of a judgment of 8 July 2020, confirmed on appeal on 25 February 2021, the constitutional jurisdictions refused to take cognisance of the applicant company’s request, in part. They considered that the applicant company should continue to pursue the relevant ordinary remedies introduced under the new Chapter 573 to seek compensation in respect of the land for which an expropriation order had been issued (i.e., that land used for the reservoir and the water culvert). The same applied for the land for which no expropriation order had been issued (the land used for the roads), although in the latter case those remedies would have to be preceded by a request to the Land Arbitration Board to actually expropriate that land. The Constitutional Court, however, found a violation of Article 1 of Protocol No. 1 in respect of the applicant’s loss of use of the land (measuring 478 sq.m.) used for the water culvert, on top of which lay a part of the public garden, from 1988-2018 during which time it had been in the Government’s possession abusively, and awarded EUR 50,000 in pecuniary damage and EUR 15,000 in non-pecuniary damage.
Relying on Article 1 of Protocol No.1 to the Convention and Article 6 of the Convention, the applicant company complained that although its land had been expropriated in 1977, forty-five years later it had not yet received any compensation for the expropriation, and it was being required to undergo new procedures which in its view were ineffective.
QUESTIONS TO THE PARTIES
1. Has the applicant company exhausted domestic remedies in respect of the complaints: (i) under Article 6 in relation to access to court and the length of proceedings; (ii) under Article 1 of Protocol No. 1 in relation to the expropriation in 1977 of the land used for the purposes of a reservoir; iii) under Article 1 of Protocol No. 1 in relation to the land used for the water culvert expropriated in 2019; and iv) under Article 1 of Protocol No. 1 in relation to the taking of its land used as roads which has not been expropriated?
2. (a) Given that no compensation has yet been paid to date for the permanent taking of the land, have the applicants suffered a violation of Article 1 of Protocol No. 1 and Article 6 of the Convention (access to court and length of proceedings) as a result of the taking (under title of expropriation or under no title) of their land:
(i) measuring 2.250 sq.m., used to build a reservoir, expropriated originally in 1977, and again in 2019 under the newly enacted Chapter 573 of the Laws of Malta?
(ii) measuring 478 sq.m., used for the water culvert, expropriated originally in 1977, then released in 1987, and re-expropriated in 2019 under the newly enacted Chapter 573 of the Laws of Malta (in respect of which compensation for the unlawful use until 2018 has already been awarded)?
(iii) measuring 1703 sq.m., expropriated in 1977 and used to make roads, which remained in the Government’s possession despite the formal release of such land in 1987 (and for which no formal expropriation declaration has been re-issued)?
(b) In relation to the new ordinary procedure (introduced pending the constitutional redress proceedings) which the applicant company availed itself of in respect of the two pieces of land re-expropriated in 2018 and 2019, respectively, and still currently pending at first instance, can it be said that the applicant company was provided with a legal avenue to effectively challenge the measures in question? In particular, bearing in mind the duration of those proceedings and the antecedent passage of time, can it be said that the applicant company will receive adequate compensation and therefore that they have not suffered a disproportionate burden?
(c) Bearing in mind the situation in respect of the part of the land (used for the roads) for which no compensation has yet been paid and which, although released and not yet re-expropriated, remained in the Government’s possession, were the applicants provided with a legal avenue to effectively challenge the measure in question?
3. The Government are invited to submit precise information as to the number of outstanding expropriation declarations, at the national level, in respect of which no compensation had yet been paid at the time of the enactment of Chapter 753 in 2017, and how many of those cases have been finally determined, via the new procedure.