Communicated on 18 May 2017

FOURTH SECTION

Application no 52673/15 Stephanie BEZZINA WETTINGER and Others against Malta lodged on 19 October 2015

STATEMENT OF FACTS

A list of the applicants is set out in the appendix. They were represented before this Court by Dr E. Borg Costanzi and Dr P. Galea , lawyers practicing 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

On 3 August 1960 the applicants and/or their ancestors (hereinafter “the applicants”), together with C.Z. and Company W.J., acquired the right of perpetual emphyteusis (a contract granting use of a “tenement”, that is, a house, apartment or other building, for a stated yearly rent or ground rent to be paid in money or in kind) over a piece of land, located within the limits of two Maltese cities, Birkirkara and Msida . This land, known as “Tal ‑ Hriereb ”, measured approximately 23,606 square metres ( sq.m ).

On 1 August 1961 the Governor of Malta declared that part of the land in question, measuring approximately 7,531 sq.m , was required for a public purpose. The acquisition of the land was to be made by outright purchase. The applicants (together with C.Z. and Company W.J.) held under title of emphyteusis most of the land affected by the expropriation.

In a Notice to Treat of 16 May 1964 and 20 May 1964 respectively the Commissioner of Lands offered the applicants (and C.Z. and Company W.J.) in their capacity as empyhteutae , jointly with the persons having the direct dominium (hereinafter, the “ dominus ”), 631 British Pounds for the land expropriated. The dominus and the empyhteutae refused this offer.

On 6 November 1964 the case was brought before the Land Arbitration Board (hereafter the “LAB”) to establish the amount of the compensation due. By a decision of 3 February 1978, the LAB established that the compensation due amounted to 1,161 Maltese Liras (MLT) and fixed 15 February 1978 as the date for the publication of the deed of transfer. It further assigned a notary to publish the deed and an advocate to appear on behalf of any absent party. The LAB did not indicate how this amount was to be shared among the interested parties.

Following a request for rectification, due to an error, on 22 September 1981 the LAB gave its decision. It acknowledged that the decision of 3 February 1978 had been based on a wrong measurement of the expropriated land and ordered the correction of this mistake. However, the amount of compensation remained unchanged. The LAB rejected the Commissioner of Land ’ s request to indicate the respective shares of the dominus and the emphyteutae , reserving the right of the parties to have this matter determined by the ordinary courts.

The dominus and the emphyteutae disagreed on the amount of compensation due to each and the compensation was thus not apportioned.

In consequence, the applicants (together with E.Z. - the only heir to C.Z. - and Company W.J.) instituted constitutional redress proceedings. They claimed that the requisition of the “Tal-Hriereb” land, coupled with the lack of payment of compensation, amounted to a violation of Article 1 of Protocol No. 1. Moreover, they argued that, contrary to Article 6 § 1 of the Convention, their case had not been heard by the LAB “within a reasonable time”.

By a judgment of 24 October 2005, the Constitutional Court found against the applicants. Details concerning these proceedings, as well as further details about the background of the case are set out in Bezzina Wettinger and Others v. Malta (no. 15091/06, §§ 5-37, 8 April 2008).

Subsequently proceedings were brought before the European Court of Human Rights (“ECtHR”). By a judgment of 8 April 2008, the Court found a violation of Article 6 of the Convention [in respect of the applicants in that case who were direct victims and party to the proceedings – namely, Company W.J. and the ancestor of the first and second applicants in this case, as well as E.Z. who had participated in the redress proceedings - but not in respect of the heirs who were not a party to any of the proceedings, namely the remaining applicants in this case] concerning the length of the proceedings before the LAB which ended on 22 September 1981 (see for details Bezzina Wettinger and Others , cited above, §§ 85-94). It declared the remainder of the complaints inadmissible. In particular the Court found that the claim regarding the alleged inadequacy of the amount of compensation was to be rejected for non ‑ exhaustion of domestic remedies (ibid. §§ 100 ‑ 105), while that concerning the fact that no compensation had yet been paid was manifestly ill-founded, since the compensation had not been paid because the applicants had failed to take the necessary steps to divide up the compensation granted (ibid. §§ 106-114).

2. Subsequent proceedings

Following the ECtHR judgment, the first and second applicant ’ s father and the other four applicants in this case (together with E.Z. and Company W.J.) brought a fresh set of constitutional redress proceedings complaining about the quantum of compensation.

The complainants argued that the compensation awarded to them by the LAB was not adequate and breached their rights under Article 1 of Protocol No. 1. They requested the court to remedy the situation, by annulling the LAB decision, awarding adequate compensation and refunding the ground rent the empyhteutae had paid during the relevant time, as well to award any other damage.

According to the their ex parte architect, in 2006, the open market value of the land measuring 7530 sq.m ., considering the most part of it as development land, was approximately 8,805,000 euros (EUR). According to the same architect report, on the basis of contracts for the purchase of land in the area at the relevant times, the value of the land in 1964 was approximately EUR 17,319 (EUR 2,30 per sq.m ), and that in 1978 was approximately EUR 121,210.

By a judgment of 30 October 2014 the Civil Court (First Hall) in its constitutional competence rejected their claim. The court considered that the complainants where not attacking the law concerning compensation [which determined that compensation was to be awarded according to the value of the land at the time of the Notice to treat]. As to the facts, it noted that when the empyhteutae acquired the right of perpetual emphyteusis over the land, they paid the equivalent of 0.08 euro cents per square meter. The expropriation concerned 6,774.54 sq.m and the compensation awarded by the LAB was that of EUR 2,786 therefore the court noted that they received 0.41 euro cents per square meter, which was much greater than the price they had paid for it. According to the ex parte architect, in 1964 compensation had to amount to “EUR 15,710” (EUR 2.30 per sq.m ) while according to the architect appointed by the Commissioner of Land - given that in 1961 the land was outside a development zone - compensation had to amount to EUR 3,610 (0.36 euro cents per sq.m ). It followed according to the court that the compensation awarded to the empyhteutae was closer to the price at which they had acquired the land, while the compensation estimated by their ex parte expert had not taken into consideration the purpose of the expropriation and the use made of the land but rather reflected the price on an open market. It followed that it had not been shown that the compensation awarded had not been adequate.

The complainants appealed, noting in particular that the first-instance court had failed to give consideration to relevant facts which had an impact on proportionality, such as the trespass of time and the fact that they had not yet received compensation, the ground rents paid for the property during such time (EUR 605.92 per year), inflation, and the fact that the land was building land, both at the time of the taking as well as later. They relied on ECtHR case-law that had established in various cases that domestic law concerning compensation was in breach of the Convention as it did not take account of the trespass of time between the taking and the actual payment. Further the first-instance court had erroneously considered the land as having an area of 6,774.54 sq.m as opposed to 7,531 sq.m . Lastly, they considered that their challenge to the award of the LAB automatically covered the limitations of the law, which was the reason why the LAB could only make low compensation awards.

During these proceedings, on 5 July 2014, the first and second applicant ’ s father died.

By a judgment of 24 April 2015 the Constitutional Court confirmed the first-instance judgment.

It noted that it could not go further than that requested by the complainants, and they were solely challenging the amount of compensation. As to proportionality, in the present case, the expropriation procedure had started in 1961 and a notice to treat had been issued in 1964, the fact that no compensation had been paid to date was a result of the fact that the complainants failed to determine the shares of all the interested parties, and to institute ordinary proceedings regarding such matter. The same, as well as other delays on behalf of the complainants had also been confirmed by the ECtHR in Bezzina Wettinger and Others v. Malta (no. 15091/06, 8 April 2008). Furthermore, during the first-instance proceedings it had been established that the ground rents had been repaid to the applicants. As to the value of the land itself, at the time when it was taken, this had been agricultural land, thus it had to be valued on that scale, and not on one for development as had been done by the ex parte architect. It followed that, even taking into consideration the error of calculation of the size of the land, a fair balance had been struck given the legality of the measure and the public interest in taking the land.

B. Relevant domestic law

The relevant domestic law and practice is set out in Bezzina Wettinger and Others v. Malta (no. 15091/06, §§ 36-48, 8 April 2008).

COMPLAINTS

The applicants complained under Article 1 of Protocol No.1 that they were still without any compensation five decades after the taking and that the quantum of compensation determined by the LAB could not be considered adequate compensation. They argued that the award was derisory both because it was valued on the basis that it was agricultural land, while in reality it had been used for development, and because the relevant compensation law (Article 27 (1) (b) of Chapter 88 of the Laws of Malta) restricted the amount of compensation to the value of the land at the time of the declaration issued, without any consideration of the time which elapsed until payment, contrary to the Court ’ s case-law.

QUESTION TO THE PARTIES

1. Did the deprivation of property in the present case impose an excessive and individual burden on the applicants, contrary to Article 1 of Protocol No. 1 to the Convention? In particular, was the compensation paid to the applicants proportionate to the interference complained of, bearing in mind, in particular, the quantum of compensation determined by the Land Arbitration Board in 1981 and the size of the property, as well as the limitations imposed by law?

2. The applicants should specify their share of the property which is co ‑ held under title of emphyteusis together with other natural and/or legal persons.

APPENDIX

N o .

Firstname LASTNAME

Birth date

Nationality

Place of residence

Stephanie BEZZINA WETTINGER

15/01/1972

Maltese

St Julians

Martin BEZZINA WETTINGER

15/11/1966

Maltese

Msida

Johanna PARNIS ENGLAND

28/07/1965

Maltese

Ta ’ L- Ibraġġ

Nicholas PARNIS ENGLAND

18/01/1969

Maltese

San Pawl Tat- Tarġa

Robin PARNIS ENGLAND

12/06/1972

Maltese

Madliena

Stephen PARNIS ENGLAND

09/02/1963

Maltese

St Julians