Communicated on 24 April 2019

THIRD SECTION

Application no. 24788/17 Giovanni CAN È and others against Malta lodged on 28 March 2017

STATEMENT OF FACTS

A list of the applicants is set out in the appendix. They were represented before the Court by Dr I. Refalo , Dr M. Refalo and Dr S. Grech .

A. The circumstances of the case

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

1. Background to the case

The applicants, Italian nationals, 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. Unlike other adjacent buildings, despite the applicants ’ ancestors ’ request, the houses 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 so. 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.

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, 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 domain, at the same rent.

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.

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.

Subsequently, in 2002 the authorities declared that the properties were to be scheduled and considered as a “white area”, meaning property which can only be developed restrictively. According to the Grand Harbour Local plan (2002), 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”.

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

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 Grand Harbour Local plan.

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 and found the letter by the authorities giving notice of the expropriation and the sum offered in compensation. The applicants were offered EUR 68,950 in toto for the expropriation based on the above-mentioned re nt capitalised at the rate of 1 %. Subsequently the sum was deposited in an interest bearing account.

On 27 December 2010 the applicant instituted ordinary proceedings before the Land Arbitration Board (LAB) to challenge the public interest of the measure, under Article 6(2) of the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta. 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. On request by the applicants, the proceedings were suspended to enable the applicants to institute constitutional redress proceedings.

2. Constitutional redress proceedings

The applicants instituted constitutional redress proceedings complaining that the law restricted their access to court to contest the public interest of the expropriation given that 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 requested redress in the form of compensation, as well as the release of the property.

During the proceedings a number of expert reports were submitted. According to the applicant ’ s architect, the value of the reconstructed site (sixteen apartments) would amount to 3.2 million euros, since it was building land and surely not outside the scheme.

The Government submitted a valuation by architect S.S., whereby the property was valued at EUR 50,000 scheduled as an open space by means of the Grand Harbour Local Plan. He considered that the area was not popular on the market as well as the fact that the area included a historic cave ( g ħ ar ) and that any further development would require the authorisation of the planning authority and the Government. In his oral testimony he submitted that if valued as a building land the property was worth EUR 400,000.

They also submitted another valuation by architect J.S. according to which if the property was developable it would be worth EUR 157,800 and if it were undevelopable it would be worth EUR 21,500 while in the light of the uncertainty another proposed value was EUR 55,000.

According to the court-appointed expert, who adopted a “residual land valuation method”, namely taking the value of the property had it been built up but deducting the costs of construction, permits etc., valued the property at 1.5 million euros (in 2014). On that basis he calculated that in 1945, when it was a building site it was valued at the equivalent of EUR 3,925. He further considered that on the date of the expropriation the property was valued at EUR 432,000 (in 2010). In his testimony he submitted that he was in disagreement with the valuations made by the Government ’ s architects as the parameters on which they had based their evaluations had not been correct.

(a) First-instance

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 given 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 of the measures, it declared the expropriation null and without effect and that the part of the Grand Harbour Local Plan affecting the applicants ’ property be without effect in their regard. 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.

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 Article 19(1) of Chapter 88, relied on by the Government, the court found that this remedy was irrelevant in the present case, the property having already been expropriated.

As to the merits, relying on the ECtHR ’ s case-law, inter alia , Serghides and Christoforou v. Cyprus (no. 44730/98, 5 November 2002) it found a violation of the applicants ’ right to 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, yet 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 Article 6(2) of Chapter 88 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.

It further found a breach of the applicants ’ property rights in so far as the compe nsation in line with Article 19 (3) [ recte 22 (11) (b) (c)] of Chapter 88 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.

It also considered that there had been no public interest for the expropriation. By no stretch of 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 eye on the view. The property was nothing more than a rundown car park for private use by a few residents and over the decades 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 Grand Harbour Plan.

(b) Appeal

The Government appealed.

On 30 September 2006 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 had not yet decided whether the applicants ’ challenge to the public interest requirement was time-barred. Costs for the appeal proceedings were to be paid by the applicants.

3. Continuation of the proceedings before the LAB

Proceedings were resumed before the LAB, which, on 23 January 2019, found the applicant ’ s 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 G azette. It noted that Article 6 (2) of Chapter 88 of the Laws of Malta referred to twenty-one days from publication not notification or other.

The applicants appealed and the case is currently pending.

B. Relevant domestic law

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

Article 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 registry 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.”

Article 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. ...”

Article 22 (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. ...”

COMPLAINTS

The applicants complain under Article 6 § 1 and 13 in conjunction with Article 1 of Protocol No. 1 that they had no access to court to challenge the public interest behind the expropriation and that the Constitutional Court did not remedy that situation. They further complain under Article 1 of Protocol No. 1 that the expropriation was not justified as there was no public purpose. 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 consider 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.

QUESTIONS TO THE PARTIES

1. Did the interference, namely the scheduling of the applicants ’ land as a white area, pursue an aim that was in the general interest and if so was it proportionate to the aim pursued (compare and contrast, Trimeg Limited v. Malta , ( dec. ), no. 64792/10, 27 September 2011)?

2. In relation to the expropriation undertaken in 2010, have the applicants been deprived of their possessions in the public interest, within the meaning of Article 1 of Protocol No. 1? What was the intended use for such land, as well as the actual use of it, in 2010 and thereafter?

3. Did the deprivation, in 2010, of the applicants ’ property give rise to a disproportionate interference with their property rights particularly in view of the amount of compensation awarded for the expropriation? The parties are requested to specify whether the compensation offered has been paid, and if not how much interest has accrued since then.

4. Have the applicants been deprived of their right of access to court under Article 6 § 1 to contest the public interest of the expropriation? In particular did they have a practical and effective right of access to the Land Arb itration Board, under Article 6 (2) of Chapter 88 of the Laws of Malta as amended in 2009?

APPENDIX

No.

Firstname LASTNAME

Birth year

Nationality

Place of residence

Giovanni CAN È

1940Italian

ROMA

Giorgio CAN È

1938Italian

ROMA

Guglielmo CAN È

1947Italian

ROMA

Giuliana CAN È FERRETTI

1941Italian

ROMA