Communicated on 11 July 2019

THIRD SECTION

Application no. 23264/18 Carmelina MICALLEF against Malta lodged on 15 May 2018

STATEMENT OF FACTS

The applicant, Ms Carmelina Micallef , is a Maltese national, who was born in 1962 and lives in Birkirkara. She is represented before the Court by Dr P. Borg Costanzi and Dr E. Borg Costanzi, lawyers practising in Valletta.

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

The applicant was the owner of 94, Bull Street Cospicua (the property), which she inherited from her mother in 2009.

In 1949 the property had been taken by the Government under title of “possession and use” for an acquisition rent equivalent to approximately 14 euro (EUR) annually, based on the rental value of the property in 1939 and not revisable according to law. In 1966, the Government converted the taking to one under title of “public tenure” at a recognition rent equivalent to approximately EUR 20 annually.

On 22 August 2011 the applicant was notified that by means of Government Notice No. 934, published in the Government Gazette on 13 September 2010, the property (which had already been demolished soon after the Second World War and developed by the Government into a site comprising a number of other properties) was being acquired by “absolute purchase”. She was informed that the compensation payable based on the property ’ s value was EUR 1, 397.87 (hereinafter EUR 1,398) according to Article 22 (11) (vi) (c) of the Land Acquisition (Public Purpose) Ordinance (“the Ordinance”, Chapter 88 of the Laws of Malta), which established that compensation had to be calculated on the basis of the recognition rent capitalised by 1.4% (see Relevant domestic law).

On 9 September 2011 the applicant contested that amount before the Land Arbitration Board (LAB) considering that EUR 60,000 was more appropriate on the basis of an ex parte report which valued the property in 2012 at EUR 70,000.

In those proceedings the architects appointed to assist the LAB also valued the property at EUR 60,000 as its value in September 2010, date of taking. However, by a judgment of 14 January 2015 the LAB, sympathising with the applicant and confirming that her requests were reasonable and shared by the experts of the LAB, found that the compensation payable according to law, with which it was bound, was the amount originally offered by the Commissioner of Land, i.e. EUR 1, 398.

On 3 February 2015 the applicant appealed. She claimed that, despite the architects ’ evaluation, the LAB was bound by law to confirm the extremely low amount of compensation, and thus was hindered from providing her with an effective access to court and that the Court of Appeal should consider such law null and void and thus discard it. Since in her view the situation raised issues under Article 6 of the Convention and Article 1 of Protocol No. 1, she requested the Court of Appeal to refer the matter to the constitutional jurisdictions.

In an a decree of 4 October 2016 the Court of Appeal (composed of judges X. G. and N.) considered that her request was not frivolous or vexatious and thus accepted the request to refer the issue to the constitutional jurisdictions and made the following considerations: i ) was there a breach of the applicant ’ s rights under Article 1 of Protocol No. 1? In particular what is the relevant date for the calculation of compensation? ii) If the taking under public tenure is a property right in itself ( dritt in re ) was the compensation of approximately EUR 20 adequate compensation in 1966? iii) If the taking under public tenure is a property right in itself ( dritt in re ) was EUR 1,398 adequate compensation for the taking of the right to receive approximately EUR 20 a year? iv) If the taking under public tenure is not a property right in itself ( dritt in re ), with the result that the taking in 2010 was not solely a taking of residual rights, was EUR 1, 398 adequate compensation for the taking under absolute purchase? v) Depending on the answer to the above questions, given that the LAB is obliged to apply the law regulating compensation, was the applicant denied access to court in the determination of her compensation? As result of these considerations it set six questions to the constitutional jurisdictions concerning the applicant ’ s rights under Article 6 of the Convention and Article 1 of Protocol No. 1.

By a judgment of 4 October 2016 the first-instance constitutional jurisdiction found a violation of Article 1 of Protocol No. 1 and refrained from dealing with the other matters referred to it in connection with the same provision. In particular it considered that the entirety of the property was taken in 2010. Indeed the property had already been expropriated in 1949 however the offer of compensation was only made in 2011, thus given amendments to the law in 2006 compensation was due according to the value on the date of the notice to treat – in t he present case the value on 22 August 2011. Given that the value then was around EUR 60,000 the compensation of EUR 1,398 was not adequate and did not achieve a fair balance, and thus was in breach of the applicant ’ s property rights. It found no violation of Article 6 (access to court).

On appeal, by a judgment of 24 November 2017 the Constitutional Court (composed of Judges S. G. and N.) reversed the first-instance judgment, noting that the Government was only taking over the residual rights of ownership following the taking under title of public tenure in 1966, thus the applicant could not be compensated for the entire value of the property. In its view the sum of EUR 1,398 (plus interest) was adequate compensation, based on values applicable in 2010, for the taking of the residual right (to earn EUR 20 per year) and thus no violation of the applicant ’ s property rights arose. It also found that the taking in 1996 was not in breach of the applicant ’ s property rights.

It found no violation of Article 6 (access to court) on the basis of the mere fact that a deciding body was bound to apply the law (which gave a predetermined calculation for compensation), indeed most deciding bodies were also bound by law, which may or may not leave a margin of discretion to the adjudicators.

The case was to resume before the Court of Appeal on 4 June 2018. Before that date the applicants lodged a request under Article 734(1) (d) of the Code of Organisation and Civil Procedure for Judges G. and N. sitting on the Court of Appeal to withdraw from hearing her appeal both because they had accepted her referral request, and because they had actually decided the issue at the constitutional level.

On 4 June 2018 the Court of Appeal (composed of judges J. G. and N.) rejected her request. While accepting that the issue decided by the Constitutional Court had an impact on the way in which the civil appeal would be decided, they considered that the Constitutional Court had decided a constitutional issue and had not said anything about the way in which the civil appeal should be decided. It was true that the judges on the Court of Appeal were bound to follow the findings of the Constitutional Court, however, that would be the case irrespective of the judges who heard the case. The constitutional case had now been closed and the Court of Appeal had only to decide the civil issue.

The case was deferred to 8 October 2018 date on which the applicant requested the Court of Appeal to adjourn the consideration of the case pending the outcome of the application lodged before this Court (following the Constitutional Court judgment). On the same day her request was accepted and the civil case was adjourned sine die .

In so far as relevant Article 22 (11) ( vi ) (c) of the Land Acquisition (Public Purpose) Ordinance reads as follows:

“The compensation due for the acquisition by absolute purchase of any land, and the sum to be deposited in accordance with this article shall be:

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.”

COMPLAINTS

The applicant complains under Article 1 of Protocol No. 1 that the sum of EUR 1,398 was not adequate compensation for the taking by the State of her property, valued at EUR 65,000.

QUESTION S TO THE PARTIES

1. Has the applicant exhausted domestic remedies?

2. Has there been a violation of Article 1 of Protocol No. 1?