SECOND SECTION

CASE OF TONNA AND OTHERS v. MALTA

(Application no. 3195/21)

JUDGMENT

STRASBOURG

24 October 2023

This judgment is final but it may be subject to editorial revision.

In the case of Tonna and Others v. Malta,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Pauliine Koskelo , President , Lorraine Schembri Orland, Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 3195/21) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 7 January 2021 by the applicants listed in the appended table (“the applicants”), who were represented by Mr M. Camilleri, a lawyer practising in Valletta;

the decision to give notice of the complaints concerning length of proceedings under Articles 6 and 13 of the Convention to the Maltese Government (“the Government”), represented by their Agents, Dr C. Soler, State Advocate, and Dr J. Vella, Advocate at the Office of the State Advocate, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 3 October 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. The case concerns the length of compensation proceedings resulting from the expropriation of a plot of land.

2. The applicants (or their predecessors in title) were the owners of a plot of land which was expropriated by a declaration of the President of Malta published in 1975. In 2006 the applicants (or their predecessors in title) brought constitutional redress proceedings complaining that compensation proceedings had not been instituted by the authorities more than three decades after the taking of their property. By an appeal judgment of 3 March 2011, the Constitutional Court concluded that there had been a violation of their property rights resulting from the prolonged inaction of the authorities in instituting compensation proceedings and awarded 25,000 euros (EUR) in non-pecuniary damage.

3. In the meantime, in 2011 the Commissioner for Lands determined the amount of compensation due for the expropriation. This was challenged by the applicants (or their predecessors in title) in the domestic courts. By a decision of 8 June 2016, the Land Arbitration Board (“the LAB”) reassessed the amount of compensation due. On 9 July 2020 the Court of Appeal upheld the LAB’s decision.

4. The applicants complained before the Court that they had not been compensated for the expropriation of their plot of land within a reasonable time, contrary to Article 6 § 1 of the Convention, and that they had not had an effective remedy under Article 13 of the Convention in respect of the length of proceedings.

THE COURT’S ASSESSMENT

5. The applicants complained under Article 6 § 1 of the Convention about the delay in obtaining compensation for the expropriation of their plot of land.

6 . The Court dismisses the Government’s objection of non-exhaustion of domestic remedies as the applicants had not brought constitutional redress proceedings. The Court has already considered that such proceedings in this type of case did not constitute an effective remedy for the period until 2016 in Gal ea and Pavia v. Malta (nos. 77209/16 and 77225/16, §§ 62-64, 11 February 2020). In the subsequent domestic case of Patrick Spiteri vs the Attorney General [1] , cited by the Government in support of their objection, the Constitutional Court had rejected the applicant’s claim for compensation in relation to the length of criminal proceedings against him and this Court found a violation of Article 6 § 1 of the Convention (see Spiteri v. Malta [Committee], no. 43693/20, §§ 8-13, 28 April 2022). The additional domestic cases relied on by the Government, relating to the period until 2020 – those dated 2021 being irrelevant as they post‑dated the lodging of the present application – show that the Civil Court (First Hall) in its constitutional jurisdiction did not award any compensation [2] , or awarded sums which were significantly lower than the amounts which the Court would have awarded in those circumstances [3] . While those cases show that the situation has improved in terms of the length of constitutional proceedings, they do not invalidate the Court’s earlier conclusions as to the insufficient level of the amounts awarded. The Government submitted no relevant examples of judgments of the Constitutional Court dispelling earlier conclusions. Therefore, constitutional redress proceedings cannot be considered an effective remedy which the applicants were required to have pursued at the time they lodged an application with the Court.

7. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

8. The general principles concerning the length of proceedings have been summarised in Galea and Pavia (cited above, § 43) and Scordino v. Italy (no. 1) ([GC], no. 36813/97, §§ 196–98, ECHR 2006 ‑ V).

9. In the instant case, after the Constitutional Court’s judgment of 3 March 2011 finding a violation and awarding adequate compensation in relation to the inaction of the authorities until that date, compensation for the expropriation was only offered some months later and the proceedings brought by the applicants to challenge that offer lasted more than nine years, involving two levels of jurisdiction. Between 2011 and 2013, in the course of the first-instance proceedings, the LAB appointed two experts, held nine sittings and deferred the case for judgment. However, a decision on the applicants’ claim was not delivered until 8 June 2016. With regard to the proceedings before the Court of Appeal, the Court notes that the first hearing was held only on 9 January 2020. No explanation has been given for the two periods of three years it took for the LAB to deliver a first‑instance decision and for the Court of Appeal to schedule the first hearing. Moreover, it appears from the case file that the applicants have not yet received the payment of the amount awarded by the national courts in the compensation proceedings, while the Government’s submission that the applicants had failed to provide the information necessary to allow the payment to be made has not been substantiated.

10. There has accordingly been a violation of the reasonable time principle under Article 6 § 1 of the Convention (see, mutatis mutandis , Frendo Randon and Others v. Malta, no. 2226/10, § 73, 22 November 2011).

11. The applicants also complained under Article 13 of the Convention that they had not had access to an effective remedy capable of redressing the violation under Article 6 § 1 (length of proceedings) of the Convention. That complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. Accordingly, it must be declared admissible. Having examined all the material before it and noting that the Government’s submissions in relation to the effectiveness of the constitutional redress proceedings have been rejected (see paragraph 6 above), the Court concludes that there has been a violation of Article 13 of the Convention in conjunction with Article 6 § 1 (length of proceedings) of the Convention in the light of its findings in Galea and Pavia (cited above, §§ 59-65) with regard to the relevant period.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

12. The applicants claimed 1,928,745 euros (EUR) in respect of pecuniary damage (that is, the total amount of compensation they had sought in the national courts for the expropriation, reduced by the amounts granted by the LAB in the compensation proceedings and by the Constitutional Court in its judgment of 3 March 2011), EUR 49,500 in respect of non-pecuniary damage and EUR 24,976.03 in respect of costs and expenses incurred before the domestic courts.

13. The Government submitted that there was no causal link between the violation found and the damage alleged. They also submitted that the claim for non-pecuniary damage was excessive and that no proof had been submitted in relation to the payment of the domestic court costs.

14. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicants EUR 2,000 each in respect of non ‑ pecuniary damage, plus any tax that may be chargeable.

15. Having regard to the documents in its possession and the fact that the costs incurred in the domestic proceedings are unconnected with the violation found, the Court rejects the claim for costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicants, within three months, EUR 2,000 (two thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 24 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Dorothee von Arnim Pauliine Koskelo Deputy Registrar President

APPENDIX

List of applicants:

No.

Applicant’s name

Year of birth

Nationality

Place of residence

1.David TONNA

1956Maltese

Attard

2.Corinne CAUCHI

1948Maltese

Tas-Sliema

3.Bernarda CUSCHIERI

1961Maltese

Tas-Sliema

4.Anthony Marcel DIACONO

1952Maltese

Ta’ Paris, Birkirkara

5.Margaret DIACONO

1947Maltese

San Ä iljan

6.Martin DIACONO

1945Maltese

Tas-Sliema

7.Victor Anthony DIACONO

1958Maltese

San Ä wann

8.Paul DISTEFANO

1967Maltese

Tas-Sliema

9.Victor DISTEFANO

1958Maltese

Santa Venera

10.Maria Dolores FALZON

1949Maltese

Encounter Bay (Australia)

11.Vivien GALEA DEBONO

1945Maltese

Swieqi

12.Godfrey GILMOUR

1944Australian, Maltese

Queensland (Australia)

13.Doreen MUSCAT

1968Maltese

Tarxien

14.Josephine PERSIANO-DISTEFANO

1963Maltese

Tas-Sliema

15.Anne Marie TONNA

1945Maltese

Tas-Sliema

16.Brian TONNA

1964Maltese

Marsaskala

17.Emanuel TONNA

1946Maltese

Hayborough (Australia)

18.Godwin TONNA

1961Maltese

GwardamanÄ¡a, PietÃ

19.Peter TONNA

1966Maltese

Santa Luċija

20.Therese TONNA

1938Maltese

Santa Luċija

21.Victoria TONNA

1944Maltese

Tarxien

22.Rose VASSALLO

1957Maltese

Tas-Sliema

23.Marie Concetta Sive Rhoda WILES

1941Maltese

Winchester, Hants (UK)

[1] Rik 67/19, 5 March 2020, upheld by the Constitutional Court on 20 July 2020.

[2] Victor Buttigieg v. Kummissarju tal-Pulizija et , rik. 71/17, 28 June 2018.

[3] Publio Zammit v. Kummissarju tal-Pulizija et , rik. 87/18, 28 May 2019, and Ian Falzon v. Attorney General et , rik. 177/19, 15 December 2020.