FIRST SECTION
DECISION
Application no. 48719/20
Maurice PISANI
against Malta
The European Court of Human Rights (First Section), sitting on 6 July 2021 as a Committee composed of:
Krzysztof Wojtyczek, President,
Erik Wennerström,
Ioannis Ktistakis, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to the above application lodged on 24 October 2020,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Maurice Pisani, is a Maltese national, who was born in 1927 and lives in Naxxar. He was represented before the Court by Dr P. Cachia, a lawyer practising in Ħaż-Żebbuġ.The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.Background to the case
3. The applicant was the owner of five out of sixteen (5/16) undivided share of the perpetual utile dominium of a portion of land close to the sea in Marsaxlokk, Malta (hereinafter ‘the property’). It had a total area of 5,120 square metres and the applicant had inherited it from his wife.The first Presidential declaration
4. By means of a Presidential declaration dated 22 April 1988, published in the Government Gazette on 26 April 1988, the Commissioner for Lands (hereinafter ‘the Commissioner’) took possession of a large tract of land in Marsaxlokk, including the property of the applicant. The Presidential declaration stated that the acquisition of the property was to be made by absolute purchase.
5. Under Maltese law, at the time, until the price established was actually paid and the deed of transfer formally published, the expropriation was not considered to have been finalised. At the time, it was only the Commissioner who could initiate procedures before the Land Arbitration Board (‘LAB’) to determine the compensation due to the owner and to request an order for the publication of the deed of transfer.
6. Shortly after the publication of the 1988 Presidential declaration, the Government proceeded with the construction of the Delimara power station on the property, which was then occupied by Enemalta Corporation.
7. Eleven years later, by means of a Notice to Treat of 2 August 1999, the Commissioner offered the applicant’s wife 878 Maltese liras (MTL) (equivalent to approximately 2,045 euros (EUR)) by way of compensation for the 5/16 undivided share of the (agricultural) property she owned.
8. She objected to the offer by means of a judicial letter dated 20 August 1999 considering that the sum of MTL 11,200 equivalent to approximately EUR 26,089 was more appropriate, in accordance with an architect’s valuation dated 16 August 1999, based on its agricultural value and its waterfront location. In particular, she considered that the point in time for the valuation had to be the date of the Notice to Treat (1999) and not that of the Presidential declaration (1988, at which time the value was MTL 4,200).
9. Consequently, on 31 May 2000 the Commissioner initiated proceedings before the LAB requesting it to fix the compensation payable. These proceedings were still pending fifteen years later, thus the applicant (who succeeded his wife) initiated constitutional redress proceedings (see paragraph 19 below).
10. Pending the constitutional redress proceedings, on 27 January 2016 the LAB - considering that the property was, in 1988, agricultural according to the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta (hereinafter ‘the Ordinance’) - established the compensation payable at EUR 6,624 including interest from 1988 and ordered the transfer of the property.
11. During the proceedings before the LAB neither the applicant nor the LAB had been aware that a second expropriation order had been issued in 2010 (see paragraph 14 below).
12. The applicant appealed and did not withdraw his appeal once he became aware, on 12 April 2016, of the new developments. He explained that this was so in order to avoid any objection that he had not exhausted remedies.
13. The LAB decision was confirmed by the Court of Appeal on 27 January 2017. The applicant was ordered to pay the costs of the appeal proceedings.The second Presidential declaration
14. During the constitutional redress proceedings (see paragraph 19 et seq. below), at a hearing of 12 April 2016, via witness testimony, the applicant discovered that, by means of a new Presidential declaration of 15 February 2010, published in the Government Gazette on 1 March 2010, the same property had been “re-expropriated”. The compensation established for the property, based on the Notice to Treat of 2 August 1999, was EUR 6,569 of which EUR 2,053 represented the applicant’s share (5/16). The applicant had not been notified of this second expropriation.
15. The “re-expropriation” was made in pursuance of Section 22 (8) of the Ordinance (see Relevant domestic law), in the light of which ownership of the land was transferred to the State on the day of the declaration. This action became possible by means of Article 9(2) of Act 1 of 2006 which amended the Ordinance and granted the Government the power to expropriate land that was subject to previous expropriation orders which had not yet been completed. The same provision provided that compensation was to be determined on the basis of the value of the land on the date of the service of the Notice to Treat in respect of such land (if it had been issued).
16. As a result of this “re-expropriation”, the above-mentioned judgment of the LAB, confirmed on appeal, was never executed. This was so since it had been superseded by the new declaration by which the ownership of the property was transferred to the Government immediately.
17. By means of a notarial deed of 31 December 2012 the Government granted the entire land, including the property which had been of the applicant, to Enemalta Corporation under title of temporary emphyteusis for a period of forty-five years. The deal generated a substantial profit for the Government, namely a premium of 214 million euros and a temporary annual ground rent of EUR 94,454, to be increased by 10% every five years.
18. Enemalta Corporation was succeeded by Enemalta plc., which is owned by the Government and a private company.Constitutional redress proceedings
19. In the meantime, on 26 October 2015 the applicant had instituted proceedings before the Civil Court (First Hall) in its constitutional competence complaining of a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention and requesting damage.
20. During these proceedings it transpired that according to the Commissioner’s architect, the entire land used for the purposes of the Delimara power station, as it stood in 2011, was valued at EUR 2,000,000,000 (2 billion euros), that is, EUR 750 per square metre. On a pro rata basis, this meant that the applicant’s portion of land was in 2011 worth EUR 3,840,000 (i.e. his share of 5/16 was EUR 1,200,000).
21. According to an architect report commissioned by the applicant, on which the latter based his claim for damage, the market value of the applicant’s 5/16 undivided share of the land in 2016, considering that it was being used for industrial purposes, was EUR 1,680,000. According to the same report, the compensation due for the occupation of the land since 1988 was, in respect of the applicant’s 5/16 undivided share, EUR 533,207. According to the same report, if it were to be considered as agricultural land, its value in 2016 would be EUR 156,000, of which the applicant’s share would amount to EUR 48,750.
(a) First instance
22. By a judgment of 30 April 2019 the Civil Court (First Hall) in its constitutional competence found in favour of the applicant.
23. It declared that the defendant’s conduct in the expropriation procedure together with the unreasonable delay imputable to the defendant in the process of expropriation, were in breach of Article 1 of Protocol No. 1 and Article 6 of the Convention. Furthermore, it considered that the proviso to Article 9(2)(a) of Act I of 2006 was is in breach of Article 1 of Protocol No. 1 to the Convention in so far as it limited the compensation payable for the expropriation which occurred in 2010 to the value attributable to the land at the time of the Notice to Treat in relation to the first Presidential declaration, without taking account of the passage of time. Thus, it failed to strike a fair balance between the general interests of the community and the rights of the applicant. It awarded pecuniary damage in the sum of EUR 11,682 (representing the value of the land in 1988, as estimated in 1999, adjusted to 2018) with interest at 5% as of 1988, with the just‑mentioned value being revised each year until payment to include inflation. It further awarded EUR 35,000 in non-pecuniary damage. It ordered that the judgment be brought to the attention of the House of Representatives for the relevant action.
24. In particular the court noted that there had been no doubt about the applicant’s title to the property, and the public interest behind the taking of the applicant’s property, namely the construction of the power station which provided electricity to the island , and was essential to its economy.
25. It further considered that Article 9 of Act I of 2006 (a transitory provision) did not alter the process of compensation, and the fact that the value of the land was tied to the time of the first Presidential declaration (dispossessing the applicant of his land) was not in itself in violation of the applicant’s property rights. Similarly, it fell within the State’s prerogative to issue a second Presidential declaration. The crux of the matter was whether the applicant had obtained fair compensation for the expropriation of his property, given the passage of time since he had been dispossessed of it and the actual payment of the relevant compensation. This was irrespective of any financial gains for the Government ensuing from the notarial deed of 31 December 2012.
26. It noted that by means of the proviso to Article 9(2)(a) of Act I of 2006 the Legislature had made a distinction between persons who had received a Notice to Treat and persons who had not. The defendant had not offered any explanation in that regard. However, the relevant parliamentary debates had shown that the reason behind the proviso was to freeze the valuations of land which had been taken years before and where no Notice to Treat had yet been issued (because the State had not been able to identify the owners).
27. The court reiterated that for the purpose of the categorisation of the land the operative date was certainly that of the [first] Presidential declaration (according to Article 27 of the Ordinance) when it was agriculture without reference to the construction of the power station. However, in the court’s view, the payment of interest at 5 % on the value of the land at the time of the [first] Presidential declaration could not offset the increase in inflation, and therefore justify the distinction between these cases. The LAB could not make do for the passage of time during which the applicant awaited compensation (and during which time he had no possibility of initiating compensation proceedings).
28. Thus, the court held that the applicant had suffered an excessive burden given the low amount of compensation offered, on the basis of Article 9(2) of Act I of 2006. The latter provision was thus in breach of Article 1 of Protocol No. 1 in so far as it did not take into account inflation on property prices, for individuals who had received a Notice to Treat prior to its enactment, nor did it take account of the passage of time between the taking of possession and the notification of the Notice to Treat.
(b) Appeal
29. The applicant appealed only in respect of the damage awarded, arguing that in 2010 - the date of the second declaration - he was still the owner of the property (the first procedure not having been completed). Thus, he considered that the relevant date for determining the value of the land for the purposes of compensation should have been taken to be that of 2010.
30. By a judgment of 20 July 2020, the Constitutional Court confirmed the first instance findings. It considered that while Article 9(2)(a) of Act I of 2006 was is in breach of Article 1 of Protocol No. 1, it could not agree that adequate compensation would require the applicant to be awarded the value of the land in 2010. It considered that the second declaration had been issued to consolidate the Government’s title of ownership over the property which had been taken many years before and was not aimed at restarting a new expropriation.
31. The applicant was ordered to pay the costs of the appeal proceedings.Relevant domestic law
32. The relevant provisions of the Land Acquisition (Public Purpose) Ordinance, Chapter 88 of the Laws of Malta, are set out in Mifsud and Others v. Malta (no. 38770/17, § 43, 13 October 2020).
33. Further, Article 9(2) of Act 1 of 2006 read as follows:
“(a) The President may in relation to any land subject of a Declaration issued before 5th March 2003, 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. The said Declaration shall have attached with it a valuation drawn up by an architect and where available a site plan of the land described in the Declaration:
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 notice has been so served, in accordance with the value of the land as on 1st January 2005.
(b) For the purpose of determining whether land is to be valued as a building site, agricultural or rural land or waste land for the purpose of this sub-article the relevant date shall be the date when the original Declaration was issued by the President, in accordance with the criteria established by the law in force at the time of the issue of the original Declaration.
(c) Any fresh Declaration issued in virtue of this article shall, subject to the provisions of this sub-article be deemed as a Declaration issued under the provisions of article 22 of the principal law and the provisions of the said article as amended by this Act shall apply thereto.”
COMPLAINTS
34. The applicant complained under Article 1 of Protocol No. 1 of the Convention that he was still a victim of the violation acknowledged by the domestic courts in so far as no adequate compensation had been awarded. For the same reasons he considered that he had not had an effective remedy under Article 13 for the purposes of his complaint under Article 1 of Protocol No. 1.
THE LAWArticle 1 of Protocol No. 1 to the Convention
35. The applicant relied on Article 1 of Protocol No. 1 which, in so far as relevant, 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 applicant’s submissions
36. The applicant complained that he was still a victim of the violation in so far as no adequate compensation had been awarded. In particular, he considered that the expropriation having been effected in 2010 compensation could not be based on the value of the land in 1988, even if adjusted in line with inflation. He considered that the compensation awarded had been extremely low and favoured the Government who had made huge profits. Furthermore, that sum had been reduced given that both the Court of Appeal and the Constitutional Court had ordered that he pay the costs of the appeal proceedings. Moreover, he had received no compensation for the use of the property which he owned, but which had been in the Government’s possession from 1998-2010.
37. The applicant considered that had the Government wanted to pay the value at the time of the first declaration, they should have speeded up the compensation proceedings which were at the time ongoing, or in any event avoided to re-expropriate the property. Instead, they by-passed the ongoing compensation proceedings and re-expropriated the property, thus the first expropriation was never finalised. As a result, when the Government re‑expropriated the property in 2010, he was still the owner, and therefore only its value in 2010 could constitute adequate compensation according to the Court’s case-law, namely Mifsud and Others v. Malta (no. 38770/17, 13 October 2020). He noted that according to the Government, the value of the property owned by the applicant, in 2010, at a time when it was no longer agricultural land, was EUR 1,200,000 a sum incomparable to the one he had been awarded. He further considered that while the domestic courts upheld the breach, because Article 9(2) of Act 1 of 2006 did not achieve proportionate results, those courts nonetheless tied his compensation to a value which was no longer relevant in 2010. Thus, he considered that he had continued to suffer an excessive individual burden, in breach of Article 1 of Protocol No. 1.The Court’s assessment
38. 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-V; Gera de Petri Testaferrata Bonici Ghaxaq v. Malta, no. 26771/07, § 50, 5 April 2011; and Frendo Randon and Others v. Malta, no. 2226/10, § 34, 22 November 2011).
39. As regards the first condition, namely the acknowledgment of a violation of the Convention, the Court considers that the Constitutional Court’s findings, confirming those of the first instance, amounted to an acknowledgment that there had been a breach of Article 1 of Protocol No.1.
40. With regard to the second condition, namely appropriate and sufficient redress, the Court must ascertain whether the measures taken by the authorities afforded the applicant appropriate redress in such a way as to deprive him of victim status (see B. Tagliaferro & Sons Limited and Coleiro Brothers Limited v. Malta, nos. 75225/13 and 77311/13, § 57, 11 September 2018).
41. The Court notes that most expropriation cases brought against Malta concerned situations where applicants lost possession of their land following a Presidential declaration issued decades before, by which the process of expropriation would have started, but would not have come to an end and ownership not transferred, until compensation was determined, paid and a deed signed. In those cases, the applicants remained unpaid over decades and no new presidential declarations had been issued, unlike in the present case. In those cases, where there was no doubt about the public interest behind the measure, the Court finding a violation of Article 1 of Protocol No. 1 (because of the inadequate compensation provided by law in view of the passage of time) awarded compensation applying the guidelines established in Schembri and Others v. Malta ((just satisfaction), no. 42583/06, 28 September 2010), i.e. on the basis of the value of the land at the time of the original taking, progressively adjusted to the time of the Court’s judgment, plus interest (see, for example, Frendo Randon and Others v. Malta, (just satisfaction), no. 2226/10, § 20, 9 July 2013; Deguara Caruana Gatto and Others v. Malta, no. 14796/11, § 98, 9 July 2013; Azzopardi v. Malta, no. 28177/12, §§ 66 and 69, 6 November 2014; and Scerri v. Malta, no. 36318/18, §§ 53-54, 7 July 2020).
42. Exceptionally, in Curmi v. Malta ((just satisfaction), no. 2243/10, § 18, 9 July 2013), where decades after the taking, no compensation had been paid in relation to the one and only declaration made (which was also in the public interest), the Court confirmed the above approach. However, since the Government offered to pay the then current market value the Court awarded the Government’s offer.
43. The Court has also dealt with cases where a second declaration had been issued in the absence of the expropriation proceedings (relating to the first declaration) having been finalised. The Court observes that following amendments in 2006 the Maltese State was provided with the possibility of issuing a second declaration and obtaining the transfer of ownership therewith (contrary to the situation with the first declarations, mentioned above). These amendments created two categories of cases, i) those where the owners had never received a Notice to Treat in relation to the first declaration and, according to domestic law, were thus to be compensated according to the value of the land on 1 January 2005, and ii) those where a Notice to Treat in connection with the first declaration had already been issued and the owners were, under domestic law, to be compensated according to the value of the land on the day of the Notice to Treat (see paragraph 33 above).
44. In respect of these cases, for example, in the first above-mentioned category (where a new declaration had been issued, and no Notice to Treat had been issued in relation to the first declaration) the Court, finding a violation because no compensation had ever been paid despite a new declaration, also applied the Schembri and Others formula. However, following on the lines of domestic law and the values supplied by the parties, it awarded compensation applying the guidelines established in Schembri and Others cited above, on the basis of the value of the land in 2005 and on the basis of its designation at the time of the original taking (see, for example, Galea and Others v. Malta, no. 68980/13, § 53, 13 February 2018; compare also Gauci and Others v. Malta, no. 57752/16, 8 October 2019). Indeed, both the domestic courts and this Court had considered the expropriation as one, irrespective of the issuance of a new declaration.
45. However, in the recent case Mifsud and Others v. Malta (cited above) relied on by the applicant, the domestic courts considered that the two presidential declarations, having their basis in different versions of the law, led to two expropriations and thus they were to be examined separately. This Court followed suit. As a result (in respect of the part of the land that had been subject to a new declaration), the Court, in awarding compensation for the violation, applied the Schembri and Others formula on the basis of the value of the property at the time of the second declaration and on the basis of its designation then (§ 115).
46. Turning to the present case, the Court observes that the applicant’s property was taken by means of a declaration in 1988 and re-expropriated in 2010 by means of a new declaration. Therefore, a situation occurred similar to that in Mifsud and Others, Galea and Others and Gauci and Others, all cited above. The applicant considered that in line with the Court’s award in Mifsud and Others, he should have been awarded the value in 2010, date of the second declaration which superseded the first.
47. The Court considers that the factual situation of the present case is similar but not identical to that in Mifsud and Others. While both cases were the subject of two declarations, in the present case both declarations concerned the exact same property (as in Galea and Others and Gauci and Others, both cited above) and not a much smaller part of the property as was the case in Mifsud and Others. In the latter case most of the property was no longer needed by the State after a number of years and thus the Government had re-expropriated only the part it required and eventually returned the rest.
48. Further, in Mifsud and Others the compensation proceedings relating to the first presidential declaration had ended years before the second declaration had been issued (albeit the sum awarded had not been paid and the deed not signed), and the constitutional redress proceedings lodged by the applicants in that case specifically concerned both the first and the second declaration. This was not so in the present case, where compensation proceedings were still ongoing at the time of the second declaration, and where the proceedings brought at the constitutional level originally concerned solely the first declaration.
49. Moreover, as noted above, in the present case the domestic courts considered the expropriation to be one, and the Court finds that their approach had been consistent with the domestic practice and this Court’s.
50. In the Court’s view, in circumstances such as those of the present case, pecuniary damage calculated in line with the Schembri and Others formula on the basis of the value at the time of the first taking - a situation which the Court has found to be acceptable when there is no re-expropriation (see recently Scerri, cited above, §§ 53-54) - constitutes adequate compensation, where it is accompanied by an adequate award of non-pecuniary damage. Indeed, in the present case, that is precisely what was awarded by the domestic courts in pecuniary damage, a sum which was accompanied by a substantial award of non-pecuniary damage.
51. The Court has next to ascertain whether that amount remained adequate given that it had been reduced by the payment of costs. It is true that the Court has sometimes found that that the sums awarded in compensation by the Constitutional Court did not constitute adequate redress also because applicants were burdened with an order for the payment of the relevant costs (see, for example, Edward and Cynthia Zammit Maempel v. Malta, no. 3356/15, § 72, 15 January 2019, and Zammit and Vassallo v. Malta, no. 43675/16, § 42, 28 May 2019). However, the Constitutional Court’s order to pay the appeal costs in the present case was reasonably justified (compare Mifsud and Others, cited above, § 51), the applicant’s appeal having been rejected in line with the Court’s findings in paragraph 50 above. As to the costs incurred before the Court of Appeal, the Court notes that the applicant continued to pursue those proceedings of his own volition, despite having become aware that they were no longer of any use (see paragraph 12 above). Thus, it cannot be said that the compensation awarded to the applicant had been unjustly diminished.
52. The Court observes that the applicant also expected compensation for the use of his property while it was in the Government possession i.e. 1988 until 2010 when ownership was transferred by means of the second declaration. While it is true that the Court in Mifsud and Others considered that such a sum was due, the Court has already considered above that that case was in some respects different from the present one. Indeed, no such sums have ever been paid out to the applicants in cases comparable to the present one (see Galea and Others and Gauci and Others, both cited above). Moreover, while this claim had been set out in the applicant’s original application to the constitutional jurisdictions, it was not reiterated in his appeal, despite no such award having been made by the-first instance court.
53. Thus, the Court is satisfied that the Constitutional Court awarded adequate redress for the violation it upheld.
54. Lastly, the Court notes that it has not been argued that the award confirmed by the Constitutional Court has not been paid (see, conversely, Scerri, cited above, § 55, and Gauci and Others, cited above, § 66).
55. Bearing in mind the above, the Court considers that the second criterion has also been met and the applicant has lost victim status in respect of the violation of Article 1 of Protocol No.1.
56. This complaint is therefore incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be declared inadmissible in accordance with Article 35 § 4 of the Convention.Article 13 of the Convention
57. On the basis of the same arguments concerning his victim status, the applicant complained that he had not had an effective remedy.
58. The Court reiterates that Article 13 does not apply in the absence of an arguable claim (see Maurice v. France [GC], no. 11810/03, § 106, ECHR 2005‑IX). Moreover, bearing in mind the considerations made above according to which the applicant has lost his victim status in relation to the violation of Article 1 of Protocol No.1, the Court considers that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention (compare, Bartolo Parnis and Others v. Malta, (dec.), nos. 49378/19 and 3 others, §§ 50 and 54, 24 March 2020).
59. In this connection, the Court further notes that, while it has in 2018 upheld such a claim, finding that in connection with complaints about the failings of the domestic system concerning compensation proceedings in relation to expropriations, the applicants did not have an effective remedy at the relevant time (2013) (see B. Tagliaferro & Sons Limited and Coleiro Brothers Limited, cited above, § 107), it also emphasised that such a finding referred to the situation as it stood at the time of the applicant companies’ complaint and the relevant proceedings undertaken by them, and was without prejudice to the future situation which would merit an assessment based on the developing case-law of the domestic courts (ibid., § 108).
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 2 September 2021.
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Liv Tigerstedt Krzysztof Wojtyczek
Deputy Registrar President
Full & Egal Universal Law Academy