FOURTH SECTION

Application no. 28177/12 Peter AZZOPARDI against Malta lodged on 9 May 2012

STATEMENT OF FACTS

The applicant, Mr Peter Azzopardi on behalf of Canadian Brothers Limited, was born in 1950 and lives in Naxxar , the company ’ s registered address is also Naxxar . He is represented before the Court by Dr I. Refalo , a lawyer practising in Valletta.

A. The circumstances of the case

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

1. Background of the case

The applicant owned two plots of the land in Msida , Malta, measuring 901 sq.m . (including a room) and 240sq.m., respectively, which were to be developed for commercial purposes.

By a declaration published in the Gove rnment Gazette on 11 October 1974 the President of Malta declared that the properties were to be expropriated (acquired by a title of absolute purchase). The taking of possession of the land was made following a request by the Director of Public Works in connection with the construction of a water reservoir.

On 19 June 1992 the applicant was served with a Notice to Treat offering the sum of approximately EUR 18,050 for the acquisition. The applicant contested the price offered and by means of a judicial le tter filed on 25 September 1992 he made a counter offer of approximately EUR 559,050.

The law at the relevant time did not provide for a procedure which would allow the applicant to initiate proceedings for compensation. The initiation of compensation proceedings was an action which could be undertaken only by the authorities, and to which no time-limit applied. However, in the 1990s it had been confirmed, through case-law, that the courts of civil jurisdiction had the competence, upon a request made by persons in a similar position to the applicant, to set a time-limit within which the authorities – the Commissioner of Lands (“ CoL ”) - had to initiate the above-mentioned action, and this by application of Article 1078 of the Civil Code.

As by the year 2000 the competent authority had not instituted proceedings before the Land Arbitration Board (LAB) to determine the relevant compensation the applicant instituted constitutional redress proceedings (see below).

Pending those proceedings, on 12 January 2004 the public authorities instituted proceedings before the LAB to determine the compensation due. To date those proceedings, to which the applicant is a party, are still pending.

In 2006 the law relevant to the determination of compensation was amended. In particular interest was no longer calculated at 5% per annum on the value of the land as determined by the LAB but on the mean value between the value on the date of the taking and that on the date of the actual determination. Secondly, the compensation awarded could not exceed the amount of compensation demanded by the party in its counter claim to the Notice to Treat.

The applicant submitted that such changes where to the detriment of the person whose land had been expropriated and who had been suffering delays in proceedings. Moreover, the applicant considered that in any event the LAB was not in a position to determine adequate compensation as it could not take into consideration inflation.

2. Constitutional redress proceedings

Before the constitutional jurisdictions, the applicant (Mr Peter Azzopardi on behalf of Canadian Brothers Ltd.) claimed that he had suffered a breach of his rights under Article 6 of the Conventio n and Article 1 of Protocol No. 1. He submitted that as a result of the inaction of the authorities he had been deprived of their property without receiving the compensation due and that such compensation had not been determined within a reasonable time.

By a judgment of 12 November 2010 the Civil Court (First Hall) in its constitutional competence rejected the Government ’ s objection of non- exhaustion of ordinary remedies (in respect of Article 1078 of the Civil Code) and found a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. It noted that compensation proceedings had not been instituted by the authorities three decades after the taking and that, forty years after such taking, the applicant had still not received any compensation, which, moreover, appeared not to have been yet determined. It awarded EUR 25,000 in damage resulting from the said violations, but considered that compensation for the expropriated property was to be determined by the competent board.

On appeal, by a judgment of 11 November 2011 the Constitutional Court confirmed the first-instance judgment. It again rejected the Government ’ s same objection as to the non-exhaustion of ordinary remedies. As to the merits it noted that the contestation between the parties had started in 1974 and thirty-seven years later, the applicant was still awaiting compensation for the taking. While it was true that under Maltese law there was no right of action based on the Convention rights before 1987 and therefore the court had no jurisdiction to decide on facts which occurred during that time, the court nevertheless had to have regard to the stage reached in the proceedings up to that date. It noted that there was a delay of thirteen years before and sixteen years after 1987, during which compensation proceedings had not been initiated, which undoubtedly amounted to an unreasonable delay under Article 6 of the Convention. Moreover, there was no valid reason justifying the delay in paying compensation for the expropriation which therefore also constituted a violation of Article 1 of Protocol 1. as a result of which the applicant was due moral damage. It confirmed the amount awarded by the first-instance court but refused to make any orders to the LAB in relation to the method of calculation of the compensation, as had been requested by the applicant, noting that it was for the board to make such an award and that the applicant could take the relevant steps if he was not satisfied with the sum eventually awarded.

COMPLAINTS

The applicant complains under Article 6 and Article 1 of Protocol No. 1 of the Convention that he had not been compensated for the expropriation within a reasonable time. He further complained under Article 6 that as a result of this delay he had been affected in relation to the award of compensation due, by changes of legislation pending proceedings, which had a retrospective effect.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to the peaceful enjoyment of possessions, within the meani ng of Article 1 of Protocol No. 1?

2 . Did the applicant have a fair hearing in the determination of his civil rights and obligations in accordance with Article 6 § 1 of the Convention? In particular, given the Commissioner of Lands ’ inaction for thirty years and the ensuing proceedings which are still pending was the applicant ’ s right to access to court and to have proceedings heard within a “reasonable time” respected?