Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24492/94

by Spira GRECH

against Malta

The European Commission of Human Rights (First Chamber) sitting

in private on 28 June 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 March 1994 by

Spira GRECH against Malta and registered on 29 June 1994 under file

No. 24492/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts as submitted by the applicant may be summarised as

follows.

The applicant is a Maltese citizen, born in 1919 and is resident

in San Gwann, Malta. She is represented before the Commission by

Dr. Joseph Brincat, an advocate practising in Valletta.

A. Particular circumstances of the case.

The applicant was the owner of a vacant plot of land in front of

the parish church in the centre of San Gwann ("the property").

In 1961 a declaration was made by the Governor (the

representative in Malta of the Queen, the then Head of State) that the

property was required for a public purpose.

By contract dated 21 May 1980 the Government acquired the

property and paid compensation of Lm 4312

The contract was signed by an "ex officio" representative on the

applicant's behalf because she refused to sign the contract.

On 2 February 1990 the Commissioner of Lands published a legal

notice in the Government Gazette to the effect that he was ready to

receive tenders in relation to the property "excluding use of the

property for residential/domestic or for commercial purposes".

The applicant was of the opinion that the terms of the legal

notice purposely excluded her from applying to purchase the property

back and that the notice, being clearly not issued with any public

interest in mind, implied that the property had not been acquired in

1980 for a public purpose. Therefore she took proceedings against the

Prime Minister and the Commissioner of Lands in the First Hall Civil

Court requesting a declaration that the compulsory acquisition of the

property was in violation of Article 1 Protocol No. 1, for the

rescission of the 1980 contract and for compensation. The respondent

argued that, pursuant to Article 7 of Act XIV of 1987 (namely, the

European Convention Act which incorporated the Convention into domestic

law), the applicant could not argue a violation of Article 1 Protocol

No. 1 to the Convention in relation to an act which took place before

30 April 1987, that the action was premature as the applicant had not

utilised all ordinary remedies, that the applicant had no legal

interest authorising her to interfere with the utilisation of the

property and that the property was, in fact, going to be used for a

public purpose.

It was established during the court proceedings that part of the

property had already been sold to a private band club.

On 31 May 1993 the court delivered its judgment. As regards the

applicant's claim that the 1990 legal notice and the subsequent sale

implied a private purpose behind the 1980 transaction, the court found

that even if the applicant could show that the 1980 transaction did not

have a public purpose she could not rely on Article 1 Protocol No. 1

in relation to the 1980 contract because of Article 7 of Act XIV of

1987. The court also found that the Government became the absolute

owner of the property in 1980 and therefore the applicant could not

rely on Article 1 Protocol No. 1 to challenge the 1990 legal notice or

the subsequent sale of the property as she had no proprietary interest

in the land in 1990.

The applicant appealed to the Constitutional Court claiming,

inter alia, that the 1961 declaration, the 1980 contract, the 1990

legal notice and the subsequent sale of the property must be considered

as a whole, that the violation must not only be considered to have

occurred at the time the contract was concluded in 1980 but also in

1990 and that the private nature of the 1990 legal notice and the

subsequent sale implied that the 1980 contract was not concluded for

a public purpose.

By judgment dated 10 November 1993 the Constitutional Court

dismissed the applicant's appeal. The court found, inter alia, that the

public purpose requirement of Article 3 of Chapter 88 of the Laws of

Malta was satisfied in 1961 when the Governor's declaration issued and

that that requirement persisted at least up until 1980 when the

contract was concluded and the applicant was effectively dispossessed

of the property. While the court accepted the private nature of the

1990 legal notice and the subsequent sale, this did not mean that a

valid public purpose did not lie behind the declaration in 1961 nor the

acquisition in 1980. In view of Article 7 of Act XIV of 1987 the

applicant did not have the protection of Article 1 Protocol No. 1 of

the Convention from 1961 to 30 April 1987 and she had no proprietary

interest in the property thereafter. The appeal was dismissed.

The Constitutional Court did not award costs to the Government

in light of the conduct of the Government which, according to the

Constitutional Court, had deviated from the public purpose to the

private interest in the use of property forcefully acquired without due

consideration of the interests of the original private owner.

B. Relevant domestic law and practice.

Article 4 of Act XIV of 1987 (the European Convention Act) sets

down the procedure for the enforcement in domestic courts of the rights

guaranteed by the Convention. Article 7 of that Act states that no

contravention of the Convention committed before the 30 April 1987

shall give rise to an action in the domestic courts under Article 4 of

Act XIV of 1987.

Article 3 of Chapter 88 of the Laws of Malta (Land Acquisition

(Public Purpose) Ordinance) states that property can only be

compulsorily acquired from individuals for a "public purpose". In

addition, the state must pay compensation. It is provided by Article

7 of Chapter 88 that the public authority may deal with and dispose of

land acquired by it in such a manner and subject to such conditions as

it considers expedient having regard to the public interest or utility.

COMPLAINTS

The applicant complains under Article 1 Protocol No. 1 of the

Convention in relation to the compulsory acquisition of the property,

submitting, inter alia, that the acquisition was not in accordance with

domestic law or in the public interest as required by Article 1

Protocol No. 1.

THE LAW

The applicant complains about the compulsory acquisition of

property she owned in violation of Article 1 of Protocol No. 1 (P1-1).

Articles 25 (Art. 25) and 26 (Art. 26) of the Convention

The Commission notes that, pursuant to Article 7 of Act XIV of

1987, the applicant could not invoke any Convention rights before the

domestic courts in relation to facts which occurred prior to

30 April 1987. As to the Commission's competence in relation to such

facts, the Commission recalls that the instrument of ratification of

Protocol No. 1 (P1) to the Convention was deposited on 23 January 1967

and the right of individual petition in relation to that Protocol (P1)

was recognised as and from 1 May 1987. The Government, when recognising

the right of individual petition in relation to Protocol No. 1 (P1),

did not include an express limitation defining the past temporal scope

of the right of individual petition in respect of petitions under this

Protocol (P1).

In the absence of such an express statement, the Commission

considers that it has the jurisdiction ratione temporis to consider the

applicant's complaints insofar as they relate to facts occurring after

23 January 1967 (cf. No. 13057/87, Dec. 15.3.89, D.R. 60 p. 243).

However, insofar as the applicant complains about the effect of

the 1961 declaration on her possession of the property between 1967 and

1980, such a complaint has not been made within the time allowed under

Article 26 (Art. 26) of the Convention, the six-month period running

from 1980 being the end of the effect of the declaration in question

(No. 9587/81, Dec. 13.12.82, D.R. 29 p. 228). Therefore, any such

complaint must be declared inadmissible pursuant to Article 27 para. 3

(Art. 27-3) of the Convention.

Furthermore, insofar as the applicant complains under Article 1

Protocol No. 1 (P1-1) in relation to the 1990 legal notice and the

subsequent sale of the property, the Commission has examined whether

the applicant had any subsisting proprietary rights in the property at

that time.

The Commission notes that the 1980 contract transferred the

applicant's legal title in the property to the Government in exchange

for compensation. The Constitutional Court found that the applicant was

conclusively dispossessed of her property by contract dated

21 May 1980. However, the applicant refers in her application to the

fact that in February 1990 she was not requested to declare that she

was willing to buy back the property and that she was never offered the

"right of first refusal" in relation to the sale of the property after

February 1990, both of which procedures, according to the applicant,

are applicable to the re-transfer of property compulsorily acquired by

the Government.

However, even assuming that these alleged rights of the applicant

could amount to residual proprietary rights of which she was deprived

in 1990, the Commission notes that the applicant did not raise the

question of the deprivation of any such rights in the domestic courts.

The Commission therefore considers that any complaint of the

applicant, under Article 1 Protocol No. 1 (P1-1) about a deprivation

of any residual property rights in and subsequent to 1990, must be

declared inadmissible pursuant to Article 27 para. 3 (Art. 27-3) of the

Convention on grounds of a failure to exhaust domestic remedies as

required by Article 26 (Art. 26) of the Convention.

For the above reasons the Commission has considered below the

applicant's complaints under Article 1 Protocol No. 1 (P1-1) only

insofar as they relate to the 1980 contract. As the Constitutional

Court dealt with these complaints in a substantive manner, despite the

lapse in time, the proceedings before the Constitutional Court

constituted an effective remedy and the applicant must be deemed to

have introduced her application within the prescribed period of six

months from the date of the delivery of the final judgment of that

court.

Article 1 Protocol No. 1 (P1-1)

The relevant provisions of this Article (P1-1) read as follows:

"Every ... 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 ...".

The Commission recalls that, in the circumstances of the present

case, it must inquire into whether the applicant was deprived of the

property and whether that deprivation was in the public interest and

in accordance with the conditions provided for by law.

1. Deprivation of the property

As noted above, the 1980 contract transferred the applicant's

legal title in the property to the Government in exchange for

compensation and the Constitutional Court found that the applicant was

conclusively dispossessed of her property by contract dated

21 May 1980. The Commission considers that the 1980 contract

constituted a deprivation of the property within the meaning of

Article 1 Protocol No. 1 (P1-1).

2. Public interest

In this respect, the applicant argues that the Commission must

consider the events of 1961, 1980, February 1990 and the subsequent

sale of the property as a whole, that the "public interest" element

must subsist throughout this period and submits that, in any case, the

events of February 1990 and after demonstrate that the 1980 contract

was not in accordance with the public interest.

The Commission notes that the property was a vacant plot in front

of the parish Church, which area, according to the applicant, is

situated in the central point of the town of San Gwann. The Commission

finds nothing in the evidence submitted by the applicant to indicate

that, the Governor's declaration made in 1961 and the 1980 contract,

were not directed in the public interest and does not accept the

applicant's argument that the recognised private nature of the 1990

legal notice and subsequent sale of the property implies that the

purpose of the 1961 declaration and the 1980 contract was private.

The Commission therefore concludes that the deprivation of the

applicant's property in 1980 was in accordance with the public interest

within the meaning of Article 1 Protocol No. 1 (P1-1).

3. Proportionality of the deprivation

The Commission recalls that not only must the aim of the

deprivation of property be the public interest, but there must also be

a reasonable relationship of proportionality between the means employed

and the aim sought to be realised (cf., for example, Eur. Court H.R.

Holy Monasteries judgment of 9 December 1994, to be published in Series

A no. 301-A, para. 70). This implies that a fair balance must be struck

between the demands of the general interests of the community and the

requirement to protect the individual's fundamental rights, which

balance would not be found if the individual was found to have borne

an excessive burden (cf. Eur. Court H.R., Sporrong and Lönnroth

judgement of 23 September 1982, Series A no. 52, pp. 26-28, paras. 69-

73).

In this respect, the Commission notes that the applicant submits

that the compensation she received was approximately one quarter of the

current market value of the property. Insofar as the applicant makes

this claim in the context of the proportionality of the deprivation,

the Commission notes that the applicant has not substantiated her

assertion in this regard with any expert or independent evidence as to

the prevailing market values. The Commission, having considered the

arguments and documents submitted by the applicant, does not find any

evidence to demonstrate that the deprivation of the applicant's

property in 1980 was disproportionate to the aim set out to be

achieved.

4. Subject to the conditions provided for by law

In this respect the applicant submits that the compulsory

acquisition of the property was not in accordance with the provisions

of Chapter 88 of the Laws of Malta (Land Acquisition (Public Purpose)

Ordinance) which requires that the compulsory acquisition of property

must be for a "public purpose" and that the subsequent dealing with and

disposal of the property by the Government must be carried out "having

regard to the public interest or utility". She also argues that the

legal notice of February 1990 and the subsequent sale of the property

were not completed in the public interest, that this implies the 1980

contract was not completed for a public purpose and that therefore the

1980 contract was not completed in accordance with the domestic law.

The Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention and with its constant case-law, its only

task is to ensure the observance of the obligations undertaken by the

parties to the Convention and, in particular, it is not competent to

deal with any application which may allege that errors of law or fact

have been committed by the domestic courts, except where it considers

that such errors might have involved a possible violation of the

Convention (cf., for example, No. 7987/77, Dec. 13.12.79, D.R. 18 pp.

31, 45).

The Commission notes that the Constitutional Court, despite the

submissions of the applicant similar to those made before the

Commission, found that the declaration made in 1961 by the Governor and

the contract concluded in 1980 were both completed for a public

purpose. That court also found that the publication of the

advertisement in the Government Gazette in February 1990 did not

qualify as an act done in the public interest but that this fact could

not detract from the public purpose of the actions taken in 1961 and

1980. The Commission has considered the arguments advanced and

documents submitted by the applicant. The Commission finds no evidence

that would warrant a review by the Commission of the conclusion of the

Constitutional Court as to the public purpose of, and thus the

compliance with domestic law by, the 1980 contract.

However, the Commission also recalls that the term "law" in the

Convention refers not only to compliance with the domestic law but also

to the quality of that law requiring it to be compatible with the rule

of law so that, inter alia, the law in question must not be arbitrary

(cf. Eur. Court H.R., James and Others judgment of 21 February 1986,

Series A no. 98, p. 41, para. 67). The Commission, having examined the

applicant's submissions, finds no evidence that the acquisition by the

Government of the applicant's property in 1980 pursuant to Chapter 88

of the Laws of Malta was arbitrary in its effect.

For the above reasons the Commission concludes that the

requirements of the phrase in Article 1 Protocol No. 1 (P1-1) "subject

to the conditions provided for by law" were satisfied in the

circumstances of the present case.

The Commission, for the above reasons, finds the complaint of the

applicant manifestly ill-founded and must declare the application

inadmissible pursuant to Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the First Chamber President of the First Chamber

(M. F. BUQUICCHIO) (C. L. ROZAKIS)

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GRECH v. MALTA

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