Communicated on 27 May 2016

FOURTH SECTION

Application no. 72486/14 Carol CACHIA and others against Malta lodged on 13 November 2014

STATEMENT OF FACTS

A list of the applicants is set out in the appendix. The applicants are all represented by Dr David Camilleri, Dr Mario De Marco and Dr Joseph Gatt , lawyers practicing in Valletta.

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

It appears that the applicants along with two other persons own one third undivided shares of the property at issue in the present case.

By a judicial letter of 15 February 1969 the applicants ’ father (PC) was notified with a copy of a declaration by the Governor General whereby it was being declared that six plots of land in Kalafrana and Beng ħ ajsa, limits of Bir ż ebbu ġ a, Malta, were required for a public purpose and thus the Governor General was acquiring the said property by title of full ownership.

A similar letter dated 26 February 1969 was notified to the applicants ’ father sometime later. The latter concerned another piece of land consisting of around 22,480 square metres close to the sea (hereinafter referred to as Land B).

Sometime later PC was notified with an offer of compensation in the amount of 4,492 Maltese Liras (MTL), approximately 10,464 Euros (EUR) in respect of the six plots of land mentioned above. He refused to accept the amount of compensation.

Subsequently the Commissioner of Land ( CoL ) started the procedure before the Land Arbitration Board (LAB), in order to transfer the land and establish the amount of compensation to be paid.

A part of the six plots of land were used for the purposes of the Malta Freeport. However, parts of the same plots were not used for this purpose and Land B remains unused to date.

2. First set of constitutional redress proceedings

In 1997 the applicants instituted constitutional redress proceedings concerning part of those six plots of land which had been taken but remained unused. By a judgment of 28 December 2001, the Constitutional Court found in favour of the applicants.

Subsequent to the Constitutional Court ’ s judgment the proceedings before the LAB were withdrawn by the CoL. Thus, no compensation was ever determined for the taking of the applicants ’ remaining land.

3. The second set of constitutional redress proceedings

In 2006 the applicants instituted constitutional redress proceedings in connection with the part of the six plots of land which was actually used for the purposes of the Freeport (hereinafter Land A), as well as Land B which had remained unutilised. Invoking Article 1 of Protocol No. 1 to the Convention and Article 6 of the Convention, they requested the court to declare the declaration of the Governor General null, to return the unused parts of the land, to award compensation in respect of the land which has been used, and to redress the violations found. In particular they had argued that the land had not been expropriated for a public purpose, but for a commercial purpose given that the CoL had transferred the land to the Malta Freeport Corporation and in 1989 with the introduction of the Freeport Act, the land became part of the Freeport. The Freeport was eventually privatised in 2001 and sold to an international company in 2004.

During these proceedings, on 4 November 2008, a doubt was raised by the Government and the technical expert as to the exact size of Land B, in so far as the site plans (attached to the applicants application to the domestic courts) drafted by the architect included an extra area which appeared to be owned by the Government. The Government thus requested the court to determine the confines of the expropriated land, and thereafter the title of the applicants to the land in question.

The parties agreed that they would attempt to find relevant documentation to this effect. Various documentation was subsequently submitted to the court.

By a judgment of 2 October 2013, the Civil Court (First Hall) in its constitutional competence rejected the Government ’ s objection as to non ‑ exhaustion of ordinary remedies and found in favour of the applicants in part. It found that there had been a violation of the Convention provisions invoked in connection with Land B which had remained unused in so far as the taking lacked any public interest. It thus declared the Governor declaration in that respect to be null and void. It further ordered the release of that land and the payment of EUR 30,000 in compensation for the years during which the applicants had been denied the use of their land. It however rejected the applicants ’ claims in connection with Land A, which it considered had been taken from the applicants in the public interest.

Both the applicants and the defendants appealed.

By a judgment of 30 May 2014 the Constitutional Court upheld the Government ’ s appeal and rejected that lodged by the applicants.

It considered that there was no doubt that the Freeport was established in the public interest namely the economic development of the country and therefore the taking of Land A was Convention compatible. As to compensation in respect of Land A, it considered that the applicants had not raised, before the first-instance court, a complaint about a lack of proportionality, and thus they could not raise this matter on appeal. It followed that no compensation was due in that respect.

As to Land B, the Constitutional Court acknowledged that the Government had not made any objection in the sense that the applicants were not the owners of the property, nor that proof was required as to ownership of that land. There also appeared to be no doubt that this property formed part of the property referred to in the Governor ’ s declaration notified to the applicants ’ father. Nevertheless, the Constitutional Court considered that during the first-instance proceedings, on 4 November 2008, a doubt was raised as to the matter by the Government and the technical expert, which was eventually never resolved before the first-instance court. The latter court had, nevertheless, proceeded to give judgment, instead of allowing the applicants some time to institute a relevant procedure to determine their ownership of the property. However, in such a circumstance the Constitutional Court considered that it could not give a remedy to the applicants in the absence of proof of their ownership. It thus revoked that part of the firs-instance judgment which had found a violation and awarded compensation in respect of Land B.

B. Relevant domestic law and practice

The relevant domestic law and practice concerning the case can be found in Frendo Randon and Others v. Malta (no. 2226/10 , §§ 26-29, 22 November 2011).

COMPLAINT

The applicants complain under Article 1 of Protocol No. 1 to the Convention about the expropriation of their land. In particular they claimed that the lands had not been taken for a public purpose since the Freeport was a commercial entity. Moreover, they had been paid no compensation in connection with the takings of Lands A and B.

QUESTIONS TO THE PARTIES

1. Have the applicants been deprived of their possessions (Lands A and B) in the public interest and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1?

2. If so, did that deprivation impose an excessive individual burden on the applicants, particularly in view of the fact that no compensation has yet been paid to date for any of those lands (see Frendo Randon and Others v. Malta (no. 2226/10 , 22 November 2011)?

3. The applicants should submit to the Court information as to the exact share each and every one of them owns in the property at issue, as well as the exact measurement of Lands A and B, of which they are part ‑ owners.

Appendix