Communicated on 11 July 2019

THIRD SECTION

Application no. 41862/18 Philip TESTAFERRATA BONICI and others against Malta lodged on 30 August 2018

STATEMENT OF FACTS

A list of the applicants is set out in the appendix. They were represented before the Court by Dr Sarah Grech and Dr John (aka Ian) Refalo .

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

The applicants are owners of a property ( an eighteenth century palazzo) of around 1300 sq.m . situated in Balzan , Malta.

As of the 1930 ’ s the property had been under state control housing a primary school. Once the school was relocated, on 14 August 1974 the Government requisitioned the property, in order to allocate it to different Government departments or other entities.

Over the years the property was used by the Maltapost Ltd. (a private entity), a Local Council and the Government Department of Social Security, as well as that of Health. The applicants were being p aid a rent of approximately 256 euros (EUR) annually for the entirety of the property, based on its value in 1948.

In the year 2000 the State stopped paying rent, and in 2001 the sum of approximately EUR 67,432 was paid to the applicants and a part of the property was returned to them, on the basis of a recommendation made by the Ombudsman who had heard their request to that effect.

On 13 August 2012 the applicants instituted constitutional redress proceedings complaining under Article 1 of Protocol No. 1 to the Convention alone and in conjunction with Article 14 of the Convention. In particular they argued that the requisition order had not been in the public interest given that it was used also by private entities for commercial purposes and that they had been suffering an excessive burden given the low amount of rent. In this respect they noted that according to their architect ’ s report, the rental value in 2012 of the property was EUR 127,700 annually (and its sale value was of EUR 2,837,700).

During the constitutional proceedings the various entities were relocated and a partial derequisitioning order was issued on 26 June 2014.

By a judgment of 24 October 2017 the court found a violation of Article 1 of Protocol No. 1 and rejecte d their complaint under Article 14. It considered that the applicants had been suffering a disproportionate burden as a result of the huge discrepancy between the low amount of rent paid to them in connection with the requisition and the market value of the property. It noted that while the applicants had been paid a lump sum in 2001 they had been suffering such interference for forty years. Thus, no fair balance had been reached. The court awarded the applicants EUR 50,000 in compensation bearing in mind the value of the property, the public interest behind the interference, the fact that the applicants only complained after several decades, the payment made in 2001, and the fact that the Convention was applicable to Malta only post 1987.

The applicants appealed solely on the basis that the pecuniary damage awarded was too low, that no non-pecuniary damage had been awarded and that the violation persisted as the property had not yet been derequisitioned in its entirety, despite the fact that most of the entities had left the building and that the keys had been returned to the applicants.

By a judgment of 2 March 2018 the Constitutional Court upheld the appeal in part. It held that while only one Government entity remained occupying a small part of the property and the keys to the rest of the property had been returned to the applicants, the requisition was still in force. It was thus for the authorities to derequisition the property in its entirety. Given such an order it considered that compensation was less relevant and that in any event it was not for it to award civil pecuniary damage which was available before the ordinary courts. In its view its function was limited to awarding fair compensation for the period during which the applicants were denied the peaceful possession of their property against an inadequate amount of compensation.

As to the actual award it considered that: with the passage of time the requisition lost its legitimacy; the applicants had been awarded approximately EUR 67,000 on the basis of the recommendation by the Ombudsman; the authorities had co-operated in vacating the property all throughout the proceedings; that the property had been gradually vacated; and that the sum of EUR 50,000 awarded by the first ‑ ins tance court did not exclude non ‑ pecuniary damage. Thus, in the Constitutional Court ’ s view the sum of EUR 117,432 and the return of the property constituted an effective remedy for the breach suffered. However, given that the property had not yet been derequisitioned, interest was due from the date of the judgment appealed against. Costs for the appeal proceedings were to be shared equally by the parties.

On 2 April 2018, the applicants received the EUR 50,000 compensation, but no interest on that amount was paid. On 19 April 2018 the property was derequisitioned in its entirety and on 5 June 2018 the applicants received a cheque of EUR 1,621 in respect of legal expenses incurred.

The relevant domestic law pertinent to the case is set out in Fleri Soler and Camilleri v. Malta , no. 35349/05, §§ 22-26, ECHR 2006 ‑ X and Apap Bologna v. Malta , no. 46931/12 , §§ 28-30, 30 August 2016.

COMPLAINTS

The applicants complain that they are still victims of a violation of Article 1 of Protocol No. 1 upheld by the Constitutional Court given the low amount of compensation awarded. They further consider that constitutional redress proceedings were not an effective remedy as required by Article 13 of the Convention.

QUEST IONS TO THE PARTIES

1. Has there been a violation of Article 1 of Protocol No. 1 to the Convention (see Fleri Soler and Camilleri v. Malta , no. 35349/05, §§ 22 ‑ 26, ECHR 2006 ‑ X)?

2. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 1 of Protocol No. 1, as required by Article 13 of the Convention (see Apap Bologna v. Malta , no. 46931/12 , 30 August 2016 ) ?

APPENDIX

No.

Applicant ’ s Name

Birth date

Nationality

Place of residence

1Philip TESTAFERRATA BONICI

20/03/1951

Maltese

Lija

2Marie BIANCHI

16/10/1954

Maltese

Lija

3Nicholas BIANCHI

16/07/1960

Maltese

Lija

4Rita TESTAFERRATA BONICI

06/10/1952

Maltese

Lija