Communicated on 29 May 2015
FIFTH SECTION
Application no. 68980/13
Miriam GALEA and others
against Malta
lodged on 21 October 2013
STATEMENT OF FACTS
A list of the applicants is set out in the appendix. They are all represented by Dr Peter Borg Costanzi, a lawyer practising in Valletta, Malta.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background to the case
Since 2002, following their ancestors’ demise, the applicants are the holders of the utile dominium (by way of sub-emphyteusis which expires in 2047) of a portion of land in Zabbar, Malta. The directum dominus (direct owner) is the State.
The applicants’ ancestors had acquired the utile dominium of the property also through inheritance from a certain X who held the property under title of temporary sub-emphyteusis of 150 years. On the said property their existed a shop which was rented out to third parties as a snack bar.
By a Governor’s declaration of 7 May 1965 published in the Government Gazette on 14 May 1965 (no. 290), a part, amounting to 80 sq. m. (including the shop of an area of approximately 50 sq. m.), of the applicants’ property (as well as other land not held by the applicants) was declared to be needed for a public purpose according to the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta (hereinafter, “the Ordinance”).
The Government took possession of the entirety of the property mentioned in the declaration and demolished the shop in order to build a local civic center and ancillary roads (in connection with a project in the locality). However, in 1972 changes were made to the plan (pjan regolatur), namely, it was decided to reposition the road which had to be built on the part of the land on which previously the shop had stood. Thus, it was decided that on that piece of land which adjoined another larger piece of land (not owned by the applicants), a new shop would be built at the Government’s expense, in order to serve the amenities of the square and the civic center, as well as government offices and the bus terminus. The civic center currently hosts the Zabbar Local Council, a social security office, a police station, a branch of the postal services, a snack bar, a butcher shop, a drapery shop, a beautician and a general store.
The new shop (of larger dimensions than the previous one) was built (mostly on the applicants’ land) and leased to the same third party mentioned above as a snack bar. The remaining small area of land, belonging to the applicants’ ancestors, which had been taken but not used, was returned to them in 1988.
Extra-judicial requests to obtain the return of the property used for the purposes of the snack bar were to no avail.
Pending the below proceedings, on 13 April 2010 the Commissioner of Land (hereinafter “the Commissioner”) extended the lease in favour of the third party until 31 January 2020, at a rent of approximately EUR 2,100 annually.
In the light of Article 9 of the Ordinance and Act I of 2006, on 6 October 2010, by a President declaration of 3 September 2010, the sum offered for the taking of 7 May 1965 was EUR 13,000 in accordance with an architect valuation dated 1 January 2005.
In 2010 the bus terminus was removed as a result of changes in the transport system. Currently, within a radius of 300 meters of the civic center there are eleven establishments offering catering services (bars, snack bars, confectionaries, pizzerias, pastizzerias etc.).
2. Constitutional redress proceedings
(a) First-instance
On 2 March 2010 the applicants instituted constitutional redress proceedings. They complained that they were suffering a breach of Article 1 of Protocol No. 1 to the Convention in so far as the taking of their land had not been in the public interest and of Article 6 of the Convention, as well as the corresponding Maltese law provisions. They requested the court to annul the Governor’s declaration over their property, to order the release of it in their favour and to award adequate redress.
By a judgment of 26 June 2012 the Civil Court (First Hall) in its constitutional jurisdiction, upheld the applicants’ claims.
It noted that according to the Ordinance, at the time, it was the Commissioner who had to make an offer, and in the event that the offer was refused, it was the same Commissioner who had to institute proceedings before the Land Arbitration Board (hereinafter “LAB”). Nowadays, according to the Ordinance, as amended, it was again for the Commissioner to make an offer. It was, however, for the receivers of the offer, if they disagreed, to institute proceedings to challenge the offer before the LAB. Nevertheless, in the present case, it had taken forty-five years for the Commissioner to make an offer, time during which the applicants had had no possibility of initiating proceedings, and thus had no ordinary remedies to exhaust in connection with their request for compensation. The same applied concerning their complaint of a lack of public interest despite amendments to the law in 2009 (Act XXV of 2009) - which introduced the possibility of challenging the public interest of a taking before the LAB, within twenty-one days of the declaration - in the court’s view it was unlikely that one would be able to challenge a public interest which would not be mentioned in the declaration.
As to the complaint concerning the applicants’ property rights, having extensively referred to domestic as well as Strasbourg case-law, the court held that the taking had not been in the public interest in so far as it was being leased to third parties as a snack bar and thus for commercial purposes. It solely and intrinsically served private interests, those of the third parties who leased the property merely for commercial purposes, irrespective of the fact that the snack bar was being used by bus drivers. Furthermore, the applicant had received no compensation in forty-five years, and the offer made to them in 2010 (solely after constitutional redress proceedings were commenced) was based on a valuation of 2005. In the court’s view, based on the rent as submitted by the Commissioner, capitalised at the rate of 3.5 % applicable in such cases, the value of the property was approximately EUR 60,000, that is, five times the sum offered by the Commissioner. The situation was made even worse by the lack of procedural safeguards (as mentioned above), through which they could challenge their situation, which also meant that they had not had any access to court (to request compensation), as required by Article 6 of the Convention.
The court annulled the Governor’s declaration of 7 May 1965 and the President’s declaration of 6 October 2010 as well as any other action, affecting the property, taken by the defendant pending the proceedings. It ordered the release of the property (vacant possession) in favour of the applicants and awarded 40,000 in compensation including non-pecuniary (moral damage) and pecuniary damage (material damage) covering occupation of the premises until the date of release, in connection with the breach suffered.
(b) Appeal
The defendants appealed, arguing that there existed a public interest and challenging the award of compensation and the order of release.
By a judgment of 26 April 2013 the Constitutional Court upheld the appeal grounds in part and revoked the first-instance judgment in part.
It considered that at the time of the declaration the taking (of the land on which the shop had stood) was certainly in the public interest, namely the building of roads giving access to the public. While it was true, that in connection with that piece of land the purpose changed in 1972, it had been decided to build a snack bar (and later to lease it) to see to the needs of the users of the square, the civic centre, government offices, and a bus terminus. Thus, in the Constitutional Court’s view the fact that it was being rented out to third parties did not diminish the public interest of the taking. Nevertheless, there was a violation of the applicants’ property rights in so far as they were deprived of their property for a number of years without any compensation. In particular they got no compensation whatsoever for the part of the property taken and not used, which was only returned to them after twenty-three years, and in respect of the remaining part which was used, the applicants were still awaiting compensation. The Constitutional Court however disagreed with the redress given by the first-instance court. It considered that the applicants had to receive pecuniary damage according to law (Article 12 (3) of the Ordinance, namely, interest of 5 % on the value of the property), and without prejudice to any such pecuniary claim for compensation in respect of the property taken and the relative interest, bearing in mind that the value of the property was EUR 13,000, the court awarded EUR 10,000 in damage for the violation suffered, and it revoked the order of release of the property.
COMPLAINTS
The applicants complained under Article 1 of Protocol No. 1 to the Convention that the deprivation of their property which was originally in the public interest, was no longer so after a change of plans in 1972. They further complained that they had not received any compensation for the taking to date. Invoking Article 6 they also complained that they had no remedy allowing them to contest the legitimacy of the President’s declaration or through which they could claim compensation, despite the inordinate delay in payment. They lastly also complained about the 2006 amendments to the law, which provided for values to be tied to January 2005 rates, apportionment of costs to the detriment of applicants and a prejudicial calculation of interest.
QUESTIONS TO THE PARTIES
1. Have the applicants been deprived of their possessions in the public interest, within the meaning of Article 1 of Protocol No. 1, following the change in designation in 1972?
2. Did the deprivation of the applicants’ property give rise to a disproportionate interference with their property rights, particularly in view of the delay leading to the lack of compensation to date?
3. Did the applicants have a fair hearing in the determination of their civil rights and obligations in accordance with Article 6 § 1 of the Convention? In particular, did the applicants have access to court in relation (i) to their compensation claim, as well as (ii) the issue of public interest, arising in connection with the deprivation of their possessions?
Appendix
Miriam GALEA is a Maltese national who was born in 1946 and lives in Zabbar. Grace BORG is a Maltese national who was born in 1950 and lives in Zabbar. Emanuel CASSAR is a Maltese national who was born in 1953 and lives in Marsaskala. Joseph CASSAR is a Maltese national who was born in 1947 and lives in Zabbar. Annemarie DESPOTT is a Maltese national who was born in 1981 and lives in Zabbar. Carmen ZAMMIT is a Maltese national who was born in 1943 and lives in Zabbar.
Full & Egal Universal Law Academy