Communicated on 5 June 2019

THIRD SECTION

Application no. 36318/18 Nikolina SCERRI and others against Malta lodged on 24 July 2018

STATEMENT OF FACTS

A list of the applicants is set out in the appendix.

The circumstances of the case

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

By means of a President ’ s declaration published in the government gazette in 1961 the applicants ’ (agricultural) land in Safi was declared to be needed for a public purpose under the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta.

The Government took physical possession of the (then building) land in 1993 to construct a road.

A notice to treat was sent in 2003 and compensation was offered on the basis of its status as agricultural land in 1961 i.e. 3,470.77 euros (EUR).

The amount of compensation having been refused by the applicants, proceedings were initiated before the Land Arbitration Board (LAB) which, in 2009, established the compensation as being EUR 20,137 plus interest from date of taking, on the basis of its designation as agricultural land in 1961.

The parties appealed before the Court of Appeal (consisting of three judges). During these proceedings a request by the applicants for a constitutional reference in relation to claims under Article 1 of Protocol No. 1 to the Convention, alone and in conjunction with Article 14 (concerning the compensation) and Article 6 (length of proceedings), was rejected by the Court of Appeal, by means of an inter locutory decision of 6 May 2013. The Court of Appeal considered that the claims were frivolous and vexatious, as the applicants had not yet exhausted ordinary remedies, namely the proceedings on appeal where their claims on the merits could still be accepted. By a judgment of 29 November 2013 the Court of Appeal rejected the applicants ’ appeal and confirmed the first ‑ instance decision.

On 25 May 2013 the applicants instituted constitutional redress proceedings complaining under Article 1 of Protocol No. 1 to the Convention, alone and in conjunction with Article 14 and Article 6 of the Convention, length of proceedings (1961 ‑ 2013).

By a judgment of 10 October 2016 the Civil Court (First Hall) in its constitutional competence found a violation of all the provisions relied on and awarded pecuniary damage in respect of the violation of Article 1 of Protocol No. 1 in the amount of EUR 270,000 (plus interest from 2014 to date of contract) considering that the applicants had to be paid compensation on the basis of its designation as building land, as had been the case for others who had similar properties in the area and who had been subject to the same takings. It also awarded EUR 10,000 in non ‑ pecuniary damage for the breaches of Articles 6 and 14 in conjunction with Article 1 of Protocol No 1.

The parties appealed to the Constitutional Court made up of the same three judges who had decided the applicants ’ case on 29 November 2013. The applicants challenged the judges and requested their withdrawal. By an interlocutory decree of 20 February 2017 the applicants ’ challenge was rejected by the same judges on the basis that the first case had concerned civil issues while the current one concerned constitutional issues.

By a judgment of 26 January 2018 the Constitutional Court confirmed the violation of Article 6 and awarded EUR 7,500 in non ‑ pecuniary compensation in this respect, but revoked the rest of the judgment finding no violation of Article 14 (as the comparator was not in a similar situation ‑ the latter ’ s property having been classified as building land for the purposes of compensation) and no violati on of Article 1 of Protocol No. 1, considering, however, that the compensation should be augmented to EUR 26,093 plus interest based on the guidelines set out in Schembri and Others v. Malta ((just satisfaction), no. 42583/06, 28 September 2010).

COMPLAINTS

The applicants complain under Article 1 of Protocol No. 1 to the Convention, alone and in conjunction with Article 14 about the low amount of compensation awarded to them on the basis of its value in 1961 (when it was designated as agricultural land), more than thirty years before the Government took possession of the then building land, and that they had been discriminated against vis-à-vis other property owners who had been awarded compensation on the basis of their land being designated as building land, despite the similar circumstances of the taking. The applicants also complain under Article 6 of the Convention that the Constitutional Court was not impartial, it having been composed of the same three judges who delivered the judgment of 29 November 2013 and rejected their request for a constitutional reference.

QUESTIONS TO THE PARTIES

1. Was there a violation of Article 1 of Protocol No. 1? In particular, is the compensation due to the applicants for the deprivation of their possessions proportionate particularly in view of the delay in in actualising the intended project and the delay in the payment of compensation? What was the intended use of the property when the Government issued the relevant declaration in 1961? Why was any project undertaken only in 1993? Was this delay in the public interest?

2. Have the applicant s suffered discrimination in the enjoyment of their property rights, contrary to Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1? Did any difference in treatment pursue a legitimate aim and did it have a reasonable justification?

3. Given the composition of the Constitutional Court in the applicants ’ case was that court impartial, as required by Article 6 § 1 of the Convention?

APPENDIX

No.

Applicant ’ s Name

Birth date

Nationality

Place of residence

1Nikolina SCERRI

01/02/1936

Maltese

Ħ al Safi

2Joseph SCERRI

06/10/1972

Maltese

Å» urrieq

3Mario SCERRI

02/06/1977

Maltese

Si Ä¡Ä¡ iewi

4Raphael SCERRI

12/07/1968

Maltese

Qrendi