FIRST SECTION

DECISION

Application no. 24788/17 Giovanni CANÈ and O thers against Malta

The European Court of Human Rights (First Section), sitting on 13 April 2021 as a Chamber composed of:

Ksenija Turković, President, Krzysztof Wojtyczek, Alena Poláčková, Erik Wennerström, Raffaele Sabato, Ioannis Ktistakis, judges , Geoffrey Valenzia, ad hoc judge , and Renata Degener, Section Registrar ,

Having regard to :

the above application lodged on 28 March 2017;

the observations submitted by the respondent Government and the observations in reply submitted by the applicant;

the Italian Government ’ s decision not to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44);

the decision by the President of the Chamber to appoint Mr Geoffrey Valenzia to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 (a) of the Rules of Court), Ms Lorraine Schembri Orland, the judge elected in respect of Malta, having withdrawn from sitting in the Chamber (Rule 28 § 3);

Having deliberated, decides as follows:

THE FACTS

1 . A list of the applicants is set out in the appendix. The applicants were represented by Dr I. Refalo, Dr M. Refalo and Dr S. Grech, lawyers practising in Valletta.

2 . The Government were initially represented by their Agent, Dr P. Grech, Attorney General and subsequently by their Agent Dr V. Butti gieg , State Advocate.

3 . The Government objected to the examination of the application by a Committee.

The circumstances of the case

4 . The facts of the case, as submitted by the parties, may be summarised as follows.

5 . The applicants, inherited from their Maltese mother, and thus owned, seven properties in Senglea (107, 108, 109 and 110 in Sirens Street, Senglea, and 107, 108, 109, Senglea Wharf – hereinafter referred to jointly as “the property”) which had been destroyed in World War II.

6 . Unlike other adjacent buildings, despite the applicants ’ ancestors ’ request, the properties had not been reconstructed via the War Damage Commission funds. According to witness testimony (in the below ‑ mentioned constitutional redress proceedings), the town planner consultant ’ s project at the time did not allow for this. It also appears that according to the reconstruction project of 1945, following the war, it had been recommended that the site in question remain an open space as part of the slum clearance initiative.

7 . The State thus kept the funds allocated for reconstruction and from 1943 to 2010 it paid a rent of 689.48 euros (EUR) annually, in toto , for the entirety of the property (consisting of an open space), representing a loss of rent based on the value of the property in 1939. The State kept on paying the same rent to the applicants ’ ancestor and, after her demise, to the applicants over decades. In particular, as from 1981 the State held the property under title of possession and use and as from 1993 under title of public tenure, at the same rent.

8 . According to the applicants, the property was left to deteriorate and started to be used as a private parking space for residents of the area, neighbours were allowed to open windows and garages overlooking the property and parking bays were drawn on the floor (photos were submitted to the Court).

9 . The applicants repeatedly asked the authorities to release the property or, alternatively, that the State buy the property at an appropriate price. Their claims having remained unsuccessful, the applicants proposed to redevelop the site and prepared plans for submission to the planning authority.

10 . Subsequently, in 2002 the authorities declared that the property was to be scheduled and considered as a “white area”, meaning property which could only be developed restrictively. According to the Grand Harbour Local Plan (2002) (GHLP), this intention had persisted since 1945. According to the relevant policy, “the site in question is to remain available for public use to provide a vantage point and to provide a more direct connection to the shore area” and it was to be “restored and used as a belvedere and to provide a pedestrian connection to the waterfront”.

11 . In reply to a letter sent by the applicants ’ architect, on 13 January 2005 the planning authority stated that “development of the site would have to be limited to the restoration of the belvedere”.

12 . In 2010 (by means of a Presidential declaration published on 13 September 2010 in the Government Gazette as well as on the notice board of the Local Council), the State expropriated the property to be used as a public open space in line with the GHLP.

13 . The applicants, having been away from Malta at the time, only became aware of the notice of expropriation - sent by regular mail to the third applicant ’ s address in Malta - at a later date, namely between 4 and 8 December 2010, when the third applicant was on a visit to Malta. At that time he found the letter of the authorities giving notice of the expropriation and the sum offered in compensation.

14 . The applicants were offered EUR 68,950 in toto for the expropriation based on the above-mentioned rent capitalised at the rate of 1%. Subsequently the sum was deposited in an interest-bearing account.

15 . On 27 December 2010 the applicants instituted ordinary proceedings before the Land Arbitration Board (LAB) to challenge the public interest of the measure, under Section 6(2) of the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta (hereinafter “the Ordinance”; see also paragraph 35 below). During those proceedings, the Government pleaded that the applicants could no longer contest the expropriation given that the twenty ‑ one day time limit set in the law had expired. Following a request by the applicants, the proceedings were suspended to enable them to institute constitutional redress proceedings.

16 . The applicants instituted constitutional redress proceedings, complaining that the law restricted their access to court to contest the public interest of the expropriation since the relevant time limit started to run even in the absence of an effective notification. They also complained that the scheduling of the property as an open space as well as the expropriation were in breach of their property rights. In particular, they noted that the property had always been developable land and that the expropriation for use by the neighbours had no public interest. They also considered that the compensation offered was not adequate. They asked for redress in the form of compensation, as well as the release of the property.

17 . By a judgment of 28 January 2016 the Civil Court (First Hall) in its constitutional competence found a violation of the applicants ’ property rights under the Constitution and the Convention in respect of the expropriation on account of the lack of public interest and the low amount of compensation offered, as well as a violation of the applicants ’ right of access to court. Given the lack of public interest behind the measures, it declared the expropriation null and without effect and that the part of the GHLP affecting the applicants ’ property be without effect in respect to them. It further ordered that the property be returned to the applicants for their own free use. Costs of the proceedings were to be paid by the defendants.

18 . In particular, after declaring that it had been proved that the applicants were the owners of the property at issue, the court rejected the Government ’ s objection of non-exhaustion of ordinary remedies and exercised its constitutional competence. It considered that in the absence of an effective notification, the applicants had applied to the LAB out of time and thus that remedy could not be considered effective for the purposes of their complaint concerning public interest. As to Section 19(1) of the Ordinance, relied on by the Government, the court found that this remedy was irrelevant in the present case, the property having already been expropriated.

19 . As to the merits, relying on the Court ’ s case ‑ law, inter alia , Serghides and Christoforou v. Cyprus (no. 44730/98, 5 November 2002), the court found a violation of the applicants ’ right of access to court on the basis that the relevant time limit started to run from publication in the Government Gazette and not notification of the owners. In the present case the authorities were aware that the applicants were Italian and resident in Italy as they had been dealing with them for decades. Despite that, they failed to notify them personally at their residential addresses (principle established in both ordinary domestic law and European Union law) allowing them to seek the relevant remedy in time. Indeed Section 6(2) of the Ordinance did not even require that the State take steps to ensure notification of the owners and while publication of such notices was not excluded, it nevertheless had to be done in the actual place of residence.

20 . It further found a breach of the applicants ’ property rights in so far as the compensation in line with Section 19(3) [ recte 22 (11) (b) (c)] of the Ordinance was calculated on the rental values of 1939 and thus had no reference to the actual value of the property at the time of the expropriation, as established by the court ‑ appointed expert, at EUR 432,000.

21 . It also held that there had been no public interest for the expropriation. It considered that by no stretch of the imagination could one say that the property was being used as a belvedere. In reality there was no belvedere, and there never had been one ‑ any person walking by would have to climb over a high wall to set eyes on the view. The property was nothing more than a rundown car park for private use by a few residents and, over the decades when it was in the Government ’ s possession, there had been no concrete project for it. The Government ’ s failure to develop the area in the general interest thus neutralised the public interest which would have existed in the event of a belvedere or as a connection to the shore as announced in the GHLP.

22 . The Government appealed.

23 . On 30 September 2016 the Constitutional Court reversed the first ‑ instance judgment as it considered that the applicants ’ complaints were premature given that the matter was still pending before the LAB which was an ordinary, effective and accessible remedy. The LAB had not yet decided whether the applicants ’ challenge to the public interest requirement was time ‑ barred and thus no constitutional issues could arise at this stage. Costs for the appeal proceedings were to be paid by the applicants.

24 . On 28 March 2017, within six months from the date of the Constitutional Court judgment, the applicants lodged their application with the Court.

25 . Proceedings were resumed before the LAB which, on 23 January 2019, found the applicants ’ challenge to be time-barred as it had been lodged more than twenty-one days after the publication of the Presidential declaration in the Government Gazette. It noted that Section 6(2) of the Ordinance referred to twenty-one days from publication not notification or other.

26 . The applicants appealed, arguing that Section 6(2) had to be read in conjunction with Section 9 of the Ordinance which provided for notification, a procedure which had not been applied in conformity with the law in their case. They contended that to interpret the law otherwise would not be consonant with human rights, in so far as one could not challenge a measure he or she was unaware of.

27 . On 28 June 2019 (after the present application had been communicated to the Government) the Court of Appeal quashed the decision of the LAB of 23 January 2019 considering that the authorities had not rigorously followed the procedure established by law regarding notification, thus the applicants ’ challenge could not be considered time ‑ barred, and remitted the case to the LAB.

28 . In particular the Court of Appeal noted that while it was true that the law explicitly stated that the twenty-one days had to run from “publication”, this did not mean that the authorities were free to ignore the required procedures. Indeed Section 6(3) provided that the competent authority should, by not later than four days after the publication of the declaration of the President of Malta, affix, as it deemed appropriate and if physically possible, a notice of the said declaration on the land about which that declaration was issued. However, this had not been done. Similarly, the authorities had only fulfilled two of the obligations referred to in Section 9 of the Ordinance (namely publication in the Government Gazette and the local council) and had failed to fulfil the other two, namely publication in two newspapers and notification of the owners (with whom the authorities had been in contact over the years and to whom they paid rent regularly). Indeed, to hold otherwise would result in the applicants having no access to the LAB, which was certainly not the intention of the legislator. Thus, in the absence of conformity with the relevant procedures the applicants ’ challenge could not be considered time-barred, and its merits were to be decided by the LAB.

29 . Proceedings resumed before the LAB.

30 . Meanwhile, on 24 April 2019 the case was communicated to the Government, with questions concerning Article 6 (access to a court) and Article 1 of Protocol No. 1 in relation to the scheduling as a white area (hereinafter “the scheduling”) and the expropriation. By letters of 24 July and 6 August 2019 the applicants informed the Court about the above-mentioned development of the domestic court proceedings.

31 . Asked whether they wished to withdraw their application in the light of such developments, they replied that they wanted to maintain their complaints, given that they had waited ten years and still had no decision on the public interest issue. Moreover, they had been denied proper compensation for the use of their property for seventy years. They thus considered that, even assuming a domestic court were to declare the expropriation null for lack of public interest, they were still entitled to compensation for the loss of use of property over the years. Furthermore, their complaints about the scheduling and the Government ’ s retention of the funds granted by the War Damage Commission to reconstruct properties which had not been carried out, remained valid.

32 . Following the above and the subsequent exchange of observations, by letters of 17 September and 4 November 2020, the applicants updated the Court about further developments at domestic level.

33 . In particular, by a judgment of 16 September 2020, the LAB upheld the applicants ’ claims finding that there had been no public interest behind the expropriation. It therefore annulled and revoked the Presidential declaration of 13 September 2010. The LAB noted that as of 1945, it had been the Government ’ s intention to leave the entire road as an open space. However, that intention had not been actuated since all the other properties, save those owned by the applicants, were reconstructed. While it was true that the property at issue was part of the GHLP and was meant to be used as an open space, and in particular as a belvedere to provide a pedestrian connection to the waterfront, in seventy years during which the property was held by the Government no action had been taken to bring such a plan to life. As a result, the area was being used solely for private purposes, namely as a parking area for persons who lived in the vicinity. Thus, it was not being used for the purposes intended by the Government. Lastly, it referred to the findings of the first ‑ instance constitutional jurisdiction and noted that the situation had not changed since that judgment.

34 . The Government did not appeal against the judgment of the LAB, which therefore became final. The applicants have not informed the Court of any further proceedings they may have undertaken to seek compensation, to which they may be entitled, for the loss of use of the property since 2010 (see paragraph 68 below).

Relevant domestic lEGAL FRAMEWORK

35 . The relevant provisions of the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta, in so far as relevant, read as follows:

Section 5

“The competent authority may acquire any land required for any public purpose, either -

(a) by the absolute purchase thereof; or

(b) for the possession and use thereof for a stated time, or during such time as the exigencies of the public purpose shall require; or

(c) on public tenure:

Provided that after a competent authority has acquired any land for possession and use or on public tenure the conversion into public tenure or into absolute ownership of the terms upon which such land is held shall always be deemed to be an acquisition of land required for a public purpose and to be in the public interest:

Provided also that, subject to the provisions of articles 14, 15 and 16, a competent authority may acquire land partly by one and partly by another or others of the methods in paragraphs (a), (b) and (c):

Provided further that where the land is to be acquired on behalf and for the use of a third party for a purpose connected with or ancillary to the public interest or utility, the acquisition shall, in every case, be by the absolute purchase of the land.”

Section 6

“(1) Without prejudice to the provisions of subarticle (2), no person shall require any proof of the public purpose referred to in articles 3 and 4 and in article 8(1) other than the declaration of the President of Malta.

(2) Any person who has an interest in land, in respect of which a declaration of the President as is referred to in subarticle (1) is made, may contest the public purpose of the said declaration before the Land Arbitration Board by means of an application to be filed in the regi stry of the said Board within twenty-one days from the publication of the said declaration and the provisions of the Code of Organization and Civil Procedure applicable to the hearing of causes before the Civil Court, First Hall, including the provisions regarding appeals from such decisions, shall, mutatis mutandis , apply to the determination of the said application:

Provided that the filing of an application in terms of this subarticle shall not hinder the continuance of the expropriation proceedings or the doing of anything that may be done in respect of the land as provided in this Ordinance during the time when the application is still not determined, without prejudice to the right of the applicant to seek compensation in the event that the declaration of the President is found to be without public purpose.

(3) The competent authority shall by not later than four days after the publication of the declaration of the President of Malta affix as it deems appropriate and if physically possible a notice of the said declaration on the land about which that declaration was issued.”

Section 9

“(1) Whenever the President of Malta declares that any land is required for a public purpose, the competent authority shall cause a copy of such declaration (together with particulars sufficient for the purpose of identifying the land) to be published in the Government Gazette, in at least two local newspapers (one of which must be a newspaper published in English and the other a newspaper published in Maltese) and on the notice board of the office of the Local Council of the locality where the land is situated.

(2) The competent authority shall also file a copy of the declaration and of the particulars in the registry of the Board, and shall cause a copy thereof to be served through the Board in the manner prescribed by the Code of Organisation and Civil Procedure on every owner of and on every other party having a legal interest in the land to which the declaration refers, of whose existence and identity the competent authority is aware.”

Section 13

“(1) The amount of compensation to be paid for any land required by a competent authority may be determined at any time by agreement between the competent authority and the owner, saving the provisions contained in subarticle (2).

(2) The compensation shall in the case of acquisition of land for temporary possession and use be an acquisition rent and in the case of acquisition of land on public tenure be a recognition rent determined in either case in accordance with the relevant provisions contained in article 27. (...)”

Section 19

“(1) When land has been acquired by a competent authority for use and possession during such time as the exigencies of the public purpose shall require, the owner may, after the lapse of ten years from the date when possession was taken by the competent authority, apply to the Board for an order that the land be purchased or acquired on public tenure or vacated within a period of one year from the date of the order, and the land shall either be vacated or acquired on public tenure or purchased upon compensation to be determined in accordance with the provisions of this Ordinance or of any Ordinance amending or substituted for this Ordinance.

...

(3) When a competent authority has acquired any land for possession and use or, as the case may be, on public tenure and subsequently converts into public tenure or, as the case may be, into absolute ownership the title upon which such land is held, in assessing for purposes of that conversion of title the amount of the recognition rent or, as the case may be, of the compensation for the acquisition of the absolute ownership, no regard shall be had to any building, erection or other improvement erected or made on the land after the date upon which the possession thereof was taken by the competent authority and for purposes of such assessment the land shall be deemed not to have been altered in any material particular as from the first day of such possession. ...

(5) Public tenure shall of its nature endure in perpetuity, without prejudice to any consolidation by mutual consent or otherwise according to law of that tenure with the residual ownership of the land; and the recognition rent payable in respect thereof shall in every case be unalterable, without prejudice to the effects of any consolidation, total or partial. The residual ownership of land held on public tenure with the inherent right to receive recognition rent, shall, for all purposes of law, be deemed to be an immovable right by reason of the object to which it refers and shall be transferable according to law at the option of the owner, from time to time, of that right.

(6) The competent authority shall not be under any restriction as to the use it may make from time to time of land held by it on public tenure, saving its liability to pay any recognition rent that may be due thereon; it may demolish and not replace any structures thereon, and it may alter in any manner the use to which the land was previously put; it shall be entitled to any benefit whatsoever which every parcel of land held by it on public tenure may yield, including treasure trove found thereon, saving in this case such portion thereof as, according to law, may be due to the finder; and it shall have the right to recover any such land from any holder, even if such holder is entitled to a recognition rent in respect of the same land.”

Section 22

“ ... (8) Upon the making of a Declaration by the President in accordance with this Ordinance that any land is to be acquired by the absolute purchase thereof, the absolute ownership of the land to which the declaration refers shall be deemed to be a registration area for the purposes of the Land Registration Act and the absolute ownership thereof shall by virtue of this Ordinance and without any further assurance or formality, be transferred to and be acquired by the competent authority free and unencumbered from any charge, hypothec or privilege and with all the appurtenances thereof, and the competent authority shall cause such land to be registered in the Land Registry in its name in accordance with the Land Registration Act within three months from the issue of the Declaration of the President.

(11) ... ( b ) in the case of conversion from possession and use into absolute purchase a sum arrived at by the capitalisation at the rate of one per centum of the annual acquisition rent due under the provisions of this Ordinance;

( c ) in the case of conversion from public tenure into absolute purchase a sum arrived by the capitalisation at the rate of one point four per centum of the annual recognition rent due under the provisions of this Ordinance. ...”

Section 27(13)

“The compensation in respect of the acquisition of any land on public tenure shall be equal to the acquisition rent assessable in respect thereof in accordance with the provisions contained in subarticles (2) to (12), inclusive, of this article, increased (a) by forty per centum (40%) in the case of an old urban tenement and (b) by twenty per centum (20%) in the case of agricultural land.”

COMPLAINTS

36 . The applicants complained under Articles 6 § 1 and 13 in conjunction with Article 1 of Protocol No. 1 to the Convention that they had no access to a court in order to challenge the public interest behind the expropriation and that the Constitutional Court did not remedy that situation. They further complained under Article 1 of Protocol No. 1 that the expropriation had not been justified as there was no public purpose behind it. Even prior to the expropriation, throughout all the time the Government held the property under different titles of possession there had been no utility or plans for the site. They also considered that the expropriation had not been proportionate in so far as compensation was very low given that it was calculated on rents applicable in 1939. Moreover, the scheduling of the property as an open space had affected their property rights by diminishing the value of the land .

THE LAW

37 . The Court notes that the applicants have not withdrawn their complaints in view of recent developments, inter alia , because they considered that they were still entitled to compensation for funds retained by Government and successive takings under different titles (see paragraph 31 above).

38 . However, the Court notes that unlike in other cases (see, as a recent example, Zammit and Vassallo v. Malta , no. 43675/16, § 36, 28 May 2019) the applicants have not explicitly, or in any event not in a clear way, complained before this Court about those matters, in their application. Nor have they explicitly raised such complaints before the domestic courts. In this connection, the Court notes that the first ‑ instance constitutional jurisdiction, which examined the substance of the applicants ’ complaints, did not determine any such complaints. In fact, it did not award compensation for the demolition, or in relation to the funds retained, nor for the successive takings under different titles. Despite those findings, the applicants did not appeal against that judgment or argue that the domestic court failed to look into the matters raised. In these circumstances, even assuming the applicants had implicitly complained about such matters before this Court, they failed to exhaust remedies appropriately in that respect. Accordingly, the only complaints under Article 1 of Protocol No. 1 communicated to the Government concerned the scheduling of the property and its expropriation in 2010 and therefore the scope of this case for the purposes of Article 1 of Protocol No. 1 is limited to those two issues.

39 . In their second round of observations (dated 17 February 2020), the Government submitted that the applicants had not exhausted domestic remedies, in so far as the Constitutional Court had rejected their claims as being premature. Subsequent to that judgment, proceedings before the Court of Appeal were resumed and, the latter quashed the LAB decision and remitted the case back to the LAB, where proceedings were at the time of the filing of this objection still pending. In the Government ’ s view, it is only after the ordinary proceedings come to an end, and once the applicants file and complete a new set of constitutional redress proceedings thereafter, that the applicants can be said to have exhausted remedies. In the Government ’ s opinion, the Court can raise this issue ex officio and they submitted that this was why they were only raising this plea at this stage. In this connection, they relied on Bezzina Wettinger and Others v. Malta (no. 15091/06, 8 April 2008) and J. Lautier Company Limited v. Malta ((dec.), no. 37448/06, 2 December 2008).

40 . The Court notes that, contrary to what is asserted by the Government, the normal practice of the Convention organs has been, where a case has been communicated to the Government, not to declare the application inadmissible for failure to exhaust domestic remedies, unless this matter has been raised by the Government in their observations (see, for example, Dobrev v. Bulgaria , no. 55389/00, § 113, 10 August 2006, and Y v. Latvia , no. 61183/08, § 40, 21 October 2014, and the case-law cited therein). Indeed, in the above-mentioned cases relied on by the Government, they had raised a non-exhaustion objection, and thus contrary to their allegation, the Court did not deal with the mater ex officio .

41 . U nder Rule 55 of the Rules of Court, any plea of inadmissibility must have been raised by the respondent Contracting Party − in so far as the nature of the objection and the circumstances so allowed − in its written or oral observations on the admissibility of the application (see N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X; Markus v. Latvia , no. 17483/10, § 50, 11 June 2020; Khlaifia and Others v. Italy [GC], no. 16483/12, § 52, ECHR 2016 (extracts); and Skudayeva v. Russia , no. 24014/07, § 27, 5 March 2019 ) and failure to do so will lead the Court to find that the Government are estopped from raising the objection (ibid.).

42 . The Court notes that all the occurrences on which the Government relied in their observations of 17 February 2020 had already taken place when the Government made their first round of submissions on 15 November 2019. In those submissions they did not raise these arguments. The Government have not provided any valid explanation as to why they had omitted to raise their non-exhaustion objection in time, and therefore such an objection is belated. It follows that the Government are estopped from raising this objection.

Article 6

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 13

“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.”

45 . The Government submitted that the applicants had not been denied their right of access to a court. Indeed, the applicants could have availed themselves of Section 6 of the Ordinance to contest the public interest of the expropriation as they had been notified at their local address. Moreover, the courts of constitutional competence had in a first-instance judgment of 12 October 2012 considered that such remedy was an effective one. While it was true that the remedy had to be pursued within twenty-one days of the declaration, the Government noted that the right to a court was not absolute and that it could be subject to limitations such as time limits. In the present case, in view of the importance of expropriations and the need for swift Government action, they considered that this time limit was appropriate.

46 . In their second round of observations, the Government submitted that the Court of Appeal had quashed the LAB decision and remitted the case, which was ongoing. They further considered that these proceedings had not been lengthy; they had only been protracted by the applicants who instituted constitutional redress proceedings and requested the LAB to stay proceedings awaiting such an outcome. It followed that in June 2011 the proceedings, which were instituted in December 2010, were suspended until 2016 when they resumed following the Constitutional Court ’ s decision. The LAB delivered a decision on 23 January 2019 and a judgment on appeal was delivered on 28 June 2019. That judgment quashed the LAB ’ s judgment, and proceedings were, at the time of lodging their observations, again pending before the LAB.

47 . The applicants originally complained that they had not had access to a court in so far as the time limit of twenty-one days established in Section 6(2) of the Ordinance started to run from the publication of the presidential declaration, irrespective of the notification of the owners. The Constitutional Court had not remedied that state of facts, opting to reject the case for non-exhaustion of ordinary remedies.

48 . In their second round of observations, the applicants admitted that following the Court of Appeal ’ s judgment the LAB was now assessing the merits of their claim. However, they noted that it had taken them lengthy judicial procedures to guarantee such access. In particular, following the Constitutional Court judgment, the latter ’ s directions were ignored by the LAB, and as a result three years later proceedings were still pending.

49 . The Court has often stressed the issues of “legal certainty” and “proper administration of justice” as two central elements for drawing a distinction between an excessive formalism and an acceptable application of procedural formalities. In particular, it has held that the right of access to a court is impaired when the rules cease to serve the aims of legal certainty and the proper administration of justice and form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court (see Zubac v. Croatia [GC], no. 40160/12, § 98, 5 April 2018 , and Kart v. Turkey [GC], no. 8917/05, § 79 in fine , ECHR 2009 (extracts)).

50 . The Court reiterates that the rules governing time-limits for appeals are intended to ensure the proper administration of justice. That being so, the rules in question, or their application, should not prevent litigants from using an available remedy. The parties must be able to avail themselves of the right to bring an action or to lodge an appeal from the moment they can effectively apprise themselves of decisions imposing a burden on them or which may infringe their legitimate rights or interests (see Miragall Escolano and Others v. Spain , nos. 38366/97 and 9 others, §§ 36 ‑ 37, ECHR 2000 ‑ I).

51 . The Court observes that, following the communication of the complaint to the Government, by decision of the Court of Appeal of 28 June 2019, applying the law to the circumstances of the present case, it was held that the applicants ’ action was not time ‑ barred (see paragraph 27 above). In consequence, the applicants ’ complaint was again before the LAB, which delivered a judgment in the applicants ’ favour on 16 September 2020. It follows that it cannot be said that the applicants have been denied access to a court. Further, while it is true that the applicants instituted proceedings to challenge the public interest a decade ago (on 27 December 2010) the Court considers that such a delay, as regrettable as it may be, has not rendered meaningless their exercise of their right to court (see, a contrario , Kristiansen and Tyvik As v. Norway , no. 25498/08, § 57, 2 May 2013). Moreover, the applicants may still bring proceedings before the domestic courts complaining about the length of proceedings and claiming redress.

52 . It follows that this complaint must be rejected as manifestly ill ‑ founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

53 . The applicants complained that the expropriation was not justified as there was no public purpose. They also considered that the expropriation was not proportionate in so far as compensation was very low given that it was calculated on rents applicable in 1939. Moreover, the scheduling of the property as an open space had affected their property rights by diminishing the value of the land. They relied on Article 1 of Protocol No. 1 to the Convention, 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

54 . The Government submitted that the scheduling amounted to a control of use of property, which pursued an aim in the general interest. They noted that the scheduling as an area of open space in 2002, via the adoption of the GHLP, constituted the formalisation of a state of affairs which persisted as of the early 1940s. Indeed, the area had been a part of a slum clearance area and had not been reconstructed after the war because a 1945 report (H and H) had recommended that it remain an open space. Thus, the Government had taken it over to preserve the open space. In 2002, the scheduling of the property was an integral part of the solutions identified and adopted by the GHLP to tackle the social economic and environmental concerns in the area. The philosophy behind the GHLP was to strike a balance between development pressure and conservation and environmental considerations. In particular, it sought to tackle the continuing decline in local resident population, traffic and access difficulties, inadequate provision for pedestrians and cyclists and the lack of adequate facilities, especially open spaces. In relation to Senglea, the GHLP identified the need to improve the public realm and sought a general improvement of the environment. Moreover, in accordance with the law (Section 27(2) of The Development Planning Act, Chapter 356 of the Laws of Malta) in the preparation of the GHLP the public had been consulted and individuals had had the right to make submissions. In relation to the part of the plan concerning Senglea, including the scheduling of the applicants ’ property, thirty-four submissions had been made by the public, but none by the applicants. In that light and on the basis that the applicants had no guarantee that they could develop the property, the Government considered that the measure had been proportionate.

(b) The applicants

55 . The applicants submitted that the scheduling of their land, which had drastically lowered its value (without them obtaining any compensation), had been unjustified. They considered that it had amounted to a de facto expropriation since they could not reacquire or reconstruct the original buildings which had been lawfully constructed there.

56 . They noted that the land had been developable; in fact a block of seven buildings existed prior to the war. Thus, the applicants would have faced no obstacle to reconstruct the properties had the land not been taken over by the Government and later scheduled. They distinguished the case from other cases where owners had bought the land for speculative purposes at a time when the land had no designation, since in the present case there had been no doubt that the property was an urban block, as also shown by documents related to the GHLP and the designation of the court ‑ appointed architect. Moreover, the rent which had been paid by the Government over the years (both before and after the scheduling) had not been in relation to ‘ land ’ but in relation to each building which used to be there. Similarly, the order of expropriation had referred to the seven buildings, despite it having been issued eight years after the scheduling.

57 . The applicants considered that there had been no public interest behind the measure – even assuming there had been a plan, it had not been carried out. They noted that according to the two reports drawn up by the two Government architects, the 1945 plan (H and H) had recommended that the whole of Sirens Street (not just the applicants ’ property) become a tree planted esplanade, and that the area was later designated for a public staircase. The applicants noted that none of this came to be and Sirens Street had been totally reconstructed to its former state except for the applicants ’ property. No trees had been planted and no public staircase had been installed. Thus, as had been held by the first-instance constitutional jurisdiction the failure by the Government to carry out the development in the interest of the general public had neutralised the aims declared in the plan relied on. In reality the GLHP did nothing other than uphold the 1945 plans which had never been actuated.

58 . The Court notes that the first-instance constitutional jurisdiction, without explicitly undertaking a detailed assessment of the scheduling of the property, having considered the lack of public interest behind the measures, declared the expropriation null and without effect and that the part of the GHLP affecting the applicants ’ property be without effect in their regard (see paragraph 17 above). That decision was overturned by the Constitutional Court and thus had no effect. The later decision of the LAB finding that there had been no public interest behind the taking did not concern the scheduling itself.

(a) General principles

59 . The Court reiterates that “Article 1 in substance guarantees the right of property. It 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 by enforcing such laws as they deem necessary in the general interest. However, the three rules are not ‘ 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, inter alia , Tre Traktörer AB v. Sweden , 7 July 1989, § 54, Series A no. 159, and Fredin v. Sweden (no. 1), 18 February 1991, § 51, Series A no. 192).

60 . Any interference by a public authority with the peaceful enjoyment of possessions must comply with the principle of lawfulness and pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see, for example, Beyeler v. Italy [GC], no. 33202/96, §§ 108 ‑ 14, ECHR 2000-I, and J.A. PYE (Oxford) Ltd v. the United Kingdom , no. 44302/02, § 42, 15 November 2005). The requisite balance will not be struck where the person concerned bears an individual and excessive burden (see Brumărescu v. Romania [GC], no. 28342/95, § 78, ECHR 1999-VII). The Court also reiterates that in the area of land development and town planning, the Contracting States should enjoy a wide margin of appreciation in order to implement their town and country planning policies. Nevertheless, in the exercise of its power of review the Court must determine whether the requisite balance was maintained in a manner consonant with the applicant ’ s right of property (see Abdilla v. Malta (dec.), no. 38244/03, 3 November 2005, and J. Lautier Company Limited , cited above).

(b) Application of the general principles to the present case

61 . In the instant case the scheduling of the applicants ’ land constituted an interference with their right to the peaceful enjoyment of possessions. The Court rejects the applicants ’ contention that the measure represented a de facto expropriation of its property. The measure amounted to a control of the use of property, which falls to be considered under the second paragraph of Article 1 of Protocol No. 1 (see Trimeg Limited v. Malta , (dec.), no. 64792/10, § 24, 27 September 2011) .

62 . The lawfulness of the interference has not been disputed by the applicants; therefore, the Court accepts that the measure was lawful.

63 . As to the purpose of the interference, the Court reiterates that the interference at issue consist exclusively of the scheduling of the property as a white area, which is a measure of control of use, and not the subsequent expropriation – the public interest of which might require different considerations (see paragraph 33 . above). That having been clarified, the Court accepts that a scheduling of property may be affected solely to preserve an open space. Moreover, in the present case, this was part of a greater plan to tackle the social economic and environmental concerns in the area. The Court finds that, in a densely populated island like Malta, it was legitimate to put in place policies aimed to strike a balance between development pressure and conservation or environmental considerations. The Court accordingly considers that the interference in 2002 pursued an aim in the public interest (compare Lay Lay Company Limited v. Malta , no. 30633/11, § 87, 23 July 2013).

64 . As to the proportionality of the interference, the Court first of all notes that the scheduling did not deprive the applicants of their possession. Nor did it, in the present case, substantially control its use, in so far as its use was already controlled (by the State who had title to it) and was therefore limited at the time. In this connection, the Court observes that the State had held the property over decades under different titles of use – in particular, as from 1981 the State held the property under title of possession and use and as from 1993 under title of public tenure (see paragraph 7 above). Thus, at the time of the scheduling, in 2002, the State already held the land under title of public tenure, and therefore the applicants were already in a similar position, i.e., they could not use their land, nor develop it themselves. Moreover, under domestic law public tenure implies that the property is taken permanently (see Saliba and Others v. Malta , no. 20287/10, § 53, 22 November 2011), thus the scheduling could not affect the applicants ’ current or future use. It follows that the effect of the scheduling in the present case was superficial and had no real impact on the applicants ’ already limited use of the property.

65 . Lastly, while the applicants claimed that they suffered a huge loss of value of their property – for which they had not been compensated – the Court notes that the State continued to pay the applicants the same amount of rent even after the scheduling (see paragraph 7 above) and that under domestic law the compensation payable for the acquisition of the land, was, in line with the Ordinance, dependant on the rental values of 1939 (see paragraph 20 above). It follows that the scheduling had no impact on that calculation, which moreover became redundant following the LAB decision of 2020.

66 . Having regard to the foregoing, the Court considers that the interference, consisting of the scheduling of the property, cannot be said to have been disproportionate. Thus, the Court holds that the State did not go beyond its margin of appreciation and did not fail to strike a “fair balance” between the applicants ’ interests and the general interest of the community at large.

67 . Therefore, this complaint must be rejected as being manifestly ill ‑ founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

68 . In their observations prior to the most recent developments the Government considered that the expropriation had been Convention compliant, while the applicants considered that there had been no public interest behind the expropriation, nor had they been paid appropriate compensation for the deprivation of their property. They admitted, however, that domestic proceedings could still redress that situation. In particular , they stressed that should the LAB determine that there was no public interest behind the expropriation, it would be annulled. Th i s would provide a remedy for the 2010 expropriation, save of course any compensation to which the applicants may be entitled for the loss of the use of their property during this period.

69 . The Court has already held that it is not prevented from examining of its own motion an applicant ’ s victim status since it concerns a matter which goes to the Court ’ s jurisdiction (see Buzadji v. the Republic of Moldova [GC], no. 23755/07 , § 70, ECHR 2016 (extracts) and , Orlandi and Others v. Italy , nos. 26431/12 and 3 others , § 117, 14 December 2017).

70 . The Court has developed two lines of case-law regarding the victim status of an applicant under Article 34 of the Convention. The first line concerns the nature and extent of the conditions for claiming to be a victim of a violation of the Convention when lodging an application with the Court, namely whether a person can be regarded as being directly affected by the impugned measure (see, among other authorities, Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008 ). The second line of cases relates to the question of whether, where an alleged violation has already taken place, subsequent events can give rise to a loss of victim status. The Court would emphasise that the two lines of case ‑ law are independent of each other. Having and losing victim status are two different situations, although they are both based on the notion of “victim” (see Sakhnovskiy v. Russia [GC], no. 21272/03, § 66, 2 November 2010).

71 . It is a well ‑ established principle of the Court ’ s case ‑ law that an applicant may lose his victim status if two conditions are met: first, the authorities must have acknowledged, either expressly or in substance, the breach of the Convention and, second, they must have afforded redress for it (ibid., § 67). Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Arat v. Turkey , no. 10309/03, § 46, 10 November 2009). The alleged loss of the applicant ’ s victim status involves an examination of the nature of the right in issue, the reasons advanced by the national authorities in their decision and the persistence of adverse consequences for the applicant after the decision (see Sakhnovskiy , cited above § 67, and Freimanis and LÄ«dums v. Latvia , nos. 73443/01 and 74860/01, § 68, 9 February 2006).

72 . Furthermore, the Court has already had occasion to indicate in the context of different Convention Articles that an applicant ’ s “victim” status may also depend on the level of compensation awarded at domestic level, where appropriate, or at least on the possibility of seeking and obtaining compensation for the damage sustained, having regard to the facts about which he or she complains before the Court (see Kurić and Others v. Slovenia [GC], no. 26828/06, § 262, ECHR 2012 (extracts) and the case ‑ law cited therein).

73 . In the present case the Court accepts that the applicants were directly affected by the impugned measure, in so far as they were deprived of their possessions for a whole ten years, before the expropriation order was annulled. As to whether they have lost their victim status, the Court notes that on 16 September 2020 the LAB found that the expropriation had not been in the public interest and annulled the expropriation order. That finding can be considered as amounting to an acknowledgement in substance of the breach suffered by the applicants. The annulment of the expropriation also brought to an end the adverse consequences for the applicants and thus constitutes appropriate redress.

74 . It is true that it transpires from the Court ’ s case ‑ law that appropriate redress in relation to Article 1 of Protocol No. 1 cases requires an award in respect of both pecuniary damage as well as non ‑ pecuniary damage, which would generally be required when an individual was deprived of, or suffered an interference with, his or her possessions contrary to the Convention (see, inter alia , Zammit and Vassallo , cited above § 42, and Edward and Cynthia Zammit Maempel v. Malta , no. 3356/15 , § 37, 15 January 2019 ). However, the Court has repeatedly stated in the context of Article 41, that if the nature of the violation allows for restitution in integrum it is the duty of the State held liable to effect it (see Guiso ‑ Gallisay v. Italy (just satisfaction) [GC], no. 58858/00 , § 90, 22 December 2009).

75 . The Court notes that in their submissions the applicants admitted that the domestic courts could still offer reparation if they were to uphold their claim that there was no public interest behind the expropriation (see paragraph 68 above). Nevertheless, they opted to lodge the application with the Court before the entire proceedings came to an end and without seeking pecuniary or non ‑ pecuniary redress domestically once it was established that there was no public interest behind the expropriation (see paragraph 34 above). In these specific circumstances, the Court is satisfied that the decision of the LAB annulling the expropriation order and returning the applicants to the situation quo ante offered sufficient relief to them and that they are not continuing to suffer the consequences of the breach. In consequence, they have lost victim status in respect of this part of the application (compare Mifsud and Others v. Malta , no. 38770/17, §§ 51 and 53-54, 13 October 2020), without prejudice to any claim for compensation for the loss of the use of their property during this period which might still be available to them domestically.

76 . The Court further notes that the expropriation having been annulled, the question of the adequacy of the compensation offered for that expropriation is now redundant (see also paragraph 65 above).

77 . The remainder of the application 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.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 May 2021 .

{signature_p_1} {signature_p_2}

Renata Degener Ksenija Turković Registrar President

Appendix

No.

Applicant’s Name

Birth year

Nationality

Place of residence

1Giovanni CANÈ

1940Italian

ROME

2Giorgio CANÈ

1938Italian

ROME

3Guglielmo CANÈ

1947Italian

ROME

4Giuliana CANÈ FERRETTI

1941Italian

ROME