Communicated on 28 September 2018

THIRD SECTION

Application no. 57752/16 Bernard GAUCI and others against Malta lodged on 29 September 2016

STATEMENT OF FACTS

A list of the applicants is set out in the appendix. They are represented before the Court by Dr J. Gatt and Dr A . Libreri , lawyers practising in Valletta, Malta.

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 are all part-owners (at different shares) of a plot of land situated in Għadira Bay, limits of Mellieħa measuring 879 square fathoms ( i.e. 1607.515 square metres) or 3930 square metres. Different measurements appear in differ ent documents found in the case ‑ file.

In 1954 part of the applicants ’ property was being rented out as a caravan site.

By means of a Governor ’ s declaration of 18 February 1957 it was declared that the property was required for a public purpose and thus was to be expropriated (acquired by title of absolute purchase).

At the time other pieces of land (belonging to other persons) had also been taken under various titles, as part of the “ Għadira Scheme” a project aimed at extending the sandy beach to allow for more access to the sea for swimming purposes.

As a result of the declaration , the above ‑ mentioned rental arrangement came to an end.

Over the years, until 1973, the applicants repeatedly made attempts, to no avail, to recover their property, explaining they would be willing to put in place a beach concession.

In 1992 a part of the applicants ’ land was given to CS a private company under a beach concession allowing for encroachment under specific conditions at the price of 200 Maltese Lira (MTL ) annually, until 2006. A similar arrangement appears to have existed as from 1974 under a title of emphyteusis .

Some of the applicants instituted proceedings requesting an injunction to stop the transfer to third parties, which was refused by a judgment of 24 June 1993. Apart from that, the applicants continued their attempts to recover their property including by mean s of judicial protests dated 10 April 1989 and 18 April 2008. The latter protest included a list of the owners of the land as well as a request to the authorities to pay compensation for the taking, plus interest due.

Following amendments to Chapter 88 of the Laws of Malta, on 13 July 2006 a fresh declaration by the President of Malta (under Chapter 88) was issued and published in the Government Gazette confirming the previous declaration. The price for t he taking was established at 7,000 euros (EUR) but no offer was formally notified to the applicants.

The land is currently being used, in part, by private establishments and for its larger part is used for commercial activities connected to the enjoyment of the sea, such as the rental of deckchairs and umbrellas and related accessories.

Despite some discrepancy in the facts as set out in the domestic decisions (which seems to refer to a property adjacent to the one of the applicants), it nonetheless appears that the same CS continued to use the property after 2006, under a different arrangement with the authorities. The arrangement consisted of an annual encroachment fee of EUR 2.33 and a management contribution of EUR 4.66 per square metre payable to the authorities.

2. Constitutional redress proceedings

On 12 January 2009 the applicants instituted constitutional redress proceedings complaining that the taking and the use of the land (without there having been an official transfer of ownership of the property and payment of compensation) had breached their property right. They requested the land to be returned to them and that compensation be paid for the years during which they had been denied the use of their property. They pointed out that while they had been deprived of their property it had been awarded to third parties to make commercial profits at their expense, and that there had thus been no public interest in the taking.

By a judgment of 14 May 2015 the Civil Court (First Hall) in its constitutional competence, in so far as relevant, found a breach of the applicants ’ property rights under the Convention and awarded them EUR 20,000 in non ‑ pecuniary damage. Costs and expenses were to be paid by the defendants.

The court found, on the one hand, that the applicants had sufficiently proven their title of ownership of the land. On the other hand it had not been proven that as claimed by the applicants the land had originally been taken to build a road, which plan never came to be. It rather appeared that the plan was to improve bathing facilities in the context of the “ Għadira scheme” also for the purpose of attracting tourism. The court considered that the fact that the land had then been given for use to a third party did not detract from the public interest of the measure. Similarly, the fact that land had not been built upon did not mean that no use had been made of it, as the concept of public interest included the aim of maintaining the original habitat or keeping a location pristine.

As to proportionality, the court noted that compensation terms were relevant however the applicants had waited until 2009 to undertake proper judicial proceedings on the matter ‑ a fact which weakened their case. Ne vertheless, the fact that fifty ‑ eight years after the applicants ’ land had been taken a deed of transfer had not yet been signed, nor compensation paid, resulted in a breach of the applicants ’ rights.

Bearing in mind that the applicants had not attempted to oblige the Commissioner of Land ( CoL ) to initiate compensation proceedings, the court awarded EUR 20,000 in non ‑ pecuniary damage, considering that it was not the right forum to determine the pecuniary compensation due for the transfer of the land. It further considered that it should not order the return of the land to the applicants, however it was for the CoL not to stall any further the process of paying compensation for the taking to allow the expropriation to come to an end, even more so since in the present proceedings sufficient proof of ownership had been put forward. It thus ordered the CoL to take the relevant steps without any further delay.

On 1 June 2015 both parties appealed.

By a judgment of 14 May 2015 the Constitutional Court rejected the appeals and confirmed the first ‑ instance judgment. At appeal stage, costs and expenses incurred by the applicants as well as those incurred by one of the defendants (who had not been the legitimate defendant) were to be paid by the applicants.

As stood, on 5 September 2018, the CoL had not yet initiated any compensation proceedings.

B. Relevant domestic law

The relevant domestic law concerning the case is set out in Frendo Randon and Others v. Malta (no. 2226/10, §§ 26-27, 22 November 2011) and Galea and Others v. Malta (no. 68980/13 , § 24, 13 February 2018).

COMPLAINT

Relying on Article 1 of Protocol No. 1 to the Convention the applicants complained that there was no public interest behind the taking of their land, which they claimed had not been used, but was solely given to a third party who made substantial profits therefrom. They also considered that the measure had failed to respect the proportionality principle as they had received no compensation for the taking.

QUESTIONS TO THE PARTIES

1. Have the applicants been deprived of their possessions in the public interest, within the meaning of Article 1 of Protocol No. 1?

2 . Did the deprivation of the applicants ’ property give rise to a disproportionate interference with their property rights, particularly in view of the delay leading to the lack of compensation to date, despite the Constitutional Court judgment of 2016?

APPENDIX