AZZOPARDI v. MALTA - 28177/12 - Chamber Judgment [2014] ECHR 1201 (06 November 2014)

In the case of Azzopardi v. Malta,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Mark Villiger, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          Ganna Yudkivska,
          Vincent A. De Gaetano,
          Helena Jäderblom,
          Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 14 October 2014,

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

PROCEDURE

1. The case originated in an application (no. 28177/12) 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”) by a Maltese national, Mr Peter Azzopardi, as director for and on behalf of Canadian Brothers Limited (“the applicant”), on 9 May 2012.

2. The applicant was represented by Dr I. Refalo, a lawyer practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr Peter Grech, Attorney General.

3. The applicant alleged a violation of his rights under Article 1 of Protocol No. 1 to the Convention and Article 6 § 1 of the Convention.

4. On 3 June 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. Mr Peter Azzopardi, was born in 1950 and lives in Naxxar. The registered address of Canadian Brothers Limited is also Naxxar.

A. The underlying proceedings

6. Canadian Brothers Limited was the holder of the utile dominium (by way of sub-emphyteusis) of land in Msida, Malta, measuring approximately 772 sq.m., which it intended to develop for commercial purposes. The applicant, that is, Mr Peter Azzopardi, as director for and on behalf of Canadian Brothers Limited had lodged a development application but no development permit had been issued.

7. By a declaration published in the Government Gazette on 11 October 1974 the President of Malta declared that 901 sq.m. (including a rural room) and 240 sq.m. of land - which included the land held by the Canadian Brothers Limited - were to be expropriated (acquired by a title of absolute purchase). The taking of possession of the land was undertaken following a request by the Director of Public Works in connection with the construction of a reservoir.

8. On 19 June 1992 the applicant was served with a Notice to Treat offering the sum of approximately 18,050 euros (EUR) for the acquisition. Other parties who had an interest in the property (including heirs, as a result of the demise of some individuals) were also served with a Notice to Treat. Of those interested parties, some accepted the sum offered while others objected to the amount by means of a judicial letter dated 15 September 1992. The applicant contested the amount offered and - by means of a judicial letter filed on 25 September 1992 - made a counter-claim for approximately EUR 559,050.

9. The law at the relevant time did not provide for any procedure allowing 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 was confirmed, through case-law, that if a request was made by anyone in a position similar to the applicant’s the courts of civil jurisdiction had the competence to set a time-limit within which the authorities - namely the Commissioner of Land (“CoL”) - was obliged to initiate such proceedings, and this by application of Article 1078 of the Civil Code.

10. According to his affidavit, the applicant repeatedly solicited the authorities to process his case, but to no avail. By the year 2000 the competent authority had still not instituted proceedings before the Land Arbitration Board (“LAB”) to determine the relevant compensation and the applicant therefore instituted constitutional redress proceedings (see below).

11. In the meantime, in December 2002, the CoL filed an application informing the domestic courts that the Notice to Treat was missing from the court archives and requesting the appointment of new curators to replace those who were deceased.

12. 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.

13. In 2006 the law governing 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 rather on the mean value between the value on the date of the taking and the value on the date of the determination itself. Secondly, following an amendment in 2004, the compensation awarded could not exceed the amount of compensation demanded by the party in its counter-claim to the Notice to Treat.

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

15. The applicant continued to pay a ground rent (in his capacity of sub- empyhteuta) equivalent to EUR 183.51 per year throughout the relevant period.

B. Constitutional redress proceedings

16. 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 Convention and Article 1 of Protocol No. 1. He submitted that as a result of the inaction of the authorities he had been deprived of the property without receiving the compensation to which he was entitled and that such compensation had not been determined within a reasonable time.

17. 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 of the land and that, forty years after such taking, the applicant had still not received any compensation, the value of which, moreover, appeared not yet to have been determined. It awarded EUR 25,000 in non-pecuniary damage resulting from the said violations, but considered that compensation for the property was to be determined by the competent Board.

18. Both the CoL and the applicant appealed. By a judgment of 11 November 2011, the Constitutional Court confirmed the first-instance judgment. It again rejected the Government’s objection as to non-exhaustion of ordinary remedies. As regards the merits, it noted that the dispute between the parties had started in 1974 and that thirty-seven years later the applicant was still awaiting compensation for the taking of the land. While it was true that under Maltese law there was no right of action based on the Convention rights before 1987 and the court therefore had no jurisdiction to decide on facts which occurred before that date, 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 time compensation proceedings had not been initiated. This 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. This therefore also constituted a violation of Article 1 of Protocol No. 1, as a result of which the applicant was entitled to compensation in respect of non-pecuniary damage. The Constitutional Court confirmed the amount awarded by the first-instance court but refused to issue any instructions to the LAB in relation to the method of calculation of the compensation, as requested by the applicant, noting that it was for the Board to make such an award and that the applicant could take the appropriate steps if he was not satisfied with the sum eventually awarded.

19. The compensation awarded in respect of non-pecuniary damage was paid on 5 January 2012.

C. Proceedings before the LAB

20. On 12 January 2004 the public authorities instituted proceedings before the LAB to determine the compensation due. Those proceedings were still pending in February 2014, after more than forty hearings and adjournments, in part due to the applicant, the Board and the architects. Up to that time the technical members of the LAB had estimated the value of the land (utile dominium) in 1990 to be EUR 272,623.20. The applicant contested this estimate, which he considered was of no relevance in the context, since according to the law it was the 1992 value which had to be taken into consideration. According to the applicant, land values had increased further by 1992, and he would thus suffer a disadvantage if a land valuation from an earlier date were taken. Moreover, that value was not comparable to the price of other similar plots of land in the area sold at the time. On 26 November 2012, following acceptance of the applicant’s request, the applicant filed before the LAB a set of questions addressed to the architects. In January 2014 the architects in question had still not replied and the case continues to be adjourned for that reason. In October 2014 the case was still pending.

II. RELEVANT DOMESTIC LAW

21. The relevant part of Article 27 of the Land Acquisition Public Purpose Ordinance, Chapter 88 of the Laws of Malta, reads as follows:

“ (1) Without prejudice to any special provision contained in this Ordinance, in assessing compensation the Board shall act in accordance with the following rules:

(a) no allowance shall be made on account of the acquisition being compulsory;

(b) the value of the land shall, subject as hereinafter provided, be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realize:

Provided that -

(i) the value of the land shall be the value as at the time when the President’s Declaration was served, without regard to any improvements or works made or constructed thereafter on the said land and where the land was in the possession of the competent authority immediately prior to the service of the President’s Declaration no regard shall be had, in assessing the value of the land, to any improvements or works made or constructed by the competent authority while in possession of the land;”

22. In so far as relevant, Article 12 (3) of the same ordinance, as amended in 2006, concerning the interest applicable in cases of expropriation reads:

“ simple interest at the rate of five per centum per annum shall accrue on the value of the land in accordance with Schedule 2, and for the period indicated in such Schedule, in favour of any person having a right of compensation in respect of any land acquired by the absolute purchase thereof under this Ordinance:

Provided that where a notice to treat has been issued under this Ordinance, the interest shall accrue on the value determined in such notice, from the date of the taking of possession of the land by the competent authority up to the date of transfer by title of absolute purchase in favour of the Government of Malta:

Provided also that when a notice to treat has been issued and the person entitled to compensation elected not to accept the price offered therein, simple interest at the rate of five per centum per annum shall accrue on the value of the land in accordance with Schedule 3, and for the period indicated in that Schedule, in favour of any person having a right of compensation in respect of any land acquired by absolute purchase thereof under this Ordinance.”

23. Article 1078 of the Civil Code, Chapter 16 of the Laws of Malta, reads as follows:

“Where the time for the performance of the obligation has been left to the will of the debtor, or where it has been agreed that the debtor shall discharge the obligation when it will be possible for him to do so, or when he will have the means for so doing, the following rules shall be observed:

(a) if the subject-matter of the obligation is the payment of a sum of money, such obligation shall be performed within two years, if the sum is due without interest, or, within six years if the sum is due with interest;

(b) if the subject-matter of the obligation is other than the payment of a sum of money, the time within which the obligation is to be performed shall be fixed by the court according to circumstances.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION AND ARTICLE 6 OF THE CONVENTION

24. The applicant complained 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. The relevant Convention Articles read as follows:

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

25. The Government contested that claim.

26. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I). In the present case it considers that the applicant’s complaint under Article 6 concerns the head of “access to court”, as well as that of “reasonable time” guaranteed by the same provision.

A. Admissibility

1. The parties’ submissions

27. The Government noted that the applicant had already been compensated by the domestic courts for the violation of his property rights and those guaranteed under Article 6, and the violation had therefore already been redressed. They noted that the applicant in the present case - unlike the applicant in the case of Curmi v. Malta (no. 2243/10, 22 November 2011) - had received substantial compensation comparable to Strasbourg awards.

28. At the same time the Government also considered that the applicant had not exhausted domestic remedies in so far as the complaint before the domestic courts concerned the delay in the payment of compensation, in particular in respect of the delay by the CoL in instituting proceedings and not the duration of the proceedings before the LAB. The Government considered it incumbent on the applicant to make such a claim in his application before the constitutional jurisdictions. However, he had failed to do so, and had not requested that it be included at a later stage either. The Government also submitted that, given that the proceedings before the LAB had been instituted in 2004, whilst the constitutional proceedings were pending, the applicant could not be considered a victim of Article 6 § 1 of the Convention.

29. The applicant submitted that the award by the domestic courts had not covered the pecuniary damage element and he was still entitled to compensation for the taking of the land which compensation had not been forthcoming. He argued that it had made no sense for the constitutional jurisdictions to await the award by the LAB, as that left the applicant in the situation he had been in before, namely pursuing lengthy and costly proceedings to obtain redress and what was lawfully due. Moreover, the applicant noted that the Court had to look at the violation as committed from 1967 onwards.

30. As to the Government’s objection of non-exhaustion, the applicant submitted that he had complained before the domestic jurisdictions about the authorities’ delay in paying compensation. He noted that when he had instituted constitutional redress proceedings in 2000, the proceedings before the LAB had not yet started, so he could not have raised the issue. However, once proceedings before the LAB had started, the applicant had referred to the delay in those proceedings as part and parcel of his complaint in his oral submissions before the constitutional jurisdictions.

2. The Court’s assessment

31. The Court reiterates that an applicant is deprived of his or her status as a victim if the national authorities have acknowledged, either expressly or in substance, and then afforded appropriate and sufficient redress for a breach of the Convention (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-193, ECHR 2006-V; Gera de Petri Testaferrata Bonici Ghaxaq v. Malta, no. 26771/07, § 50, 5 April 2011; and Frendo Randon and Others v. Malta, no. 2226/10, § 34, 22 November 2011).

32. As regards the first condition, namely the acknowledgment of a violation of the Convention, the Court considers that the Constitutional Court’s findings - namely that there was no valid reason justifying the delay (of thirteen years before and sixteen years after 1987, during which compensation proceedings had not been initiated) in paying compensation, which therefore constituted a violation of the applicant’s rights under Article 1 of Protocol No. 1 and Article 6 of the Convention - amounted to an acknowledgment that there had been a breach of the aforementioned provisions at least from 1987 onwards.

The Court observes that, in the absence of any express limitation, the Maltese declaration of 30 April 1987 recognising the right of individual petition is retrospective and the Court is therefore competent to examine facts which occurred between 1967, the year of ratification and entry into force of the Convention in respect of Malta, and 1987, the year in which the State’s declaration under former Article 25 became effective (see Bezzina Wettinger and Others v. Malta, no. 15091/06, § 54, 8 April 2008). The Court notes that, although the Constitutional Court was precluded from finding a breach relating to the period before 1987, it took account of the stage reached in the proceedings up to that date (see paragraph 17 above). Nevertheless, the Government’s declaration in respect of the applicant’s property was made in 1974, and no formal acknowledgment that the applicant had been suffering a violation of his rights throughout the thirteen year period up to 1987 was made.

33. With regard to the second condition, namely appropriate and sufficient redress, the Court must ascertain whether the measures taken by the authorities in the particular circumstances of the instant case afforded the applicant appropriate redress in such a way as to deprive him of victim status. The Court notes that the Constitutional Court awarded the applicant EUR 25,000 in respect of non-pecuniary damage. However, after thirty-eight years the Constitutional Court - having established that there had been a violation of the applicant’s rights following decades of inaction - failed to determine the amount of pecuniary compensation due. Indeed, forty years after the taking and ten years after the compensation proceedings started, those proceedings were still pending.

34. Given that in the present case the violations persisted for more than forty years after the Convention had come into force in respect of Malta and that the applicant has to date not received any compensation for the taking of the land - nearly three years after the Constitutional Court judgment - the Court considers that the Constitutional Court’s judgment did not offer sufficient relief to the applicant, who continues to suffer the consequences of the breach of his rights (see Frendo Randon and Others, cited above, § 39; Vassallo v. Malta, no. 57862/09, § 47, 11 October 2011; and, mutatis mutandis, Dolneanu v. Moldova, no. 17211/03, § 44, 13 November 2007).

35. Consequently, the Government’s objection in this respect is dismissed.

36. As to the Government’s objection that the applicant had not exhausted the domestic remedies in respect of the LAB proceedings, the Court considers that the applicant clearly raised his complaint about the delay in being paid compensation before the domestic jurisdictions. The Court observes that proceedings before the LAB are an essential part of that process - which, moreover, started only four years after the applicant had lodged constitutional court proceedings. It follows that the ongoing LAB proceedings, of which the Constitutional Court was aware, formed part of that complaint and the Government’s objection in this respect is thus also dismissed.

37. Lastly, the Court notes that the Government’s last objection (paragraph 28 in fine) is unclear. However, the Court has in any event explained through its above findings why the applicant has retained victim status concerning the facts at issue in the present case.

38. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant’s submissions

39. The applicant complained that the land had been expropriated in 1974 but that no steps had been taken to compensate him until 1992, and that he was to date still awaiting compensation. The applicant noted that following his objection to the Notice to Treat, according to the law in force at the time, it was for the CoL to initiate proceedings before the LAB. Nevertheless, the CoL had not initiated those proceedings until the year 2000, leading the applicant to institute constitutional redress proceedings. It was only four years after the applicant had initiated constitutional redress proceedings that the CoL instituted compensation proceedings which, ten years later, were still pending.

40. The applicant noted that the Government had not provided any justification for the eighteen-year wait until the Notice to Treat was issued and the hardly very numerous owners - or indeed their demise (in the decades that passed) - could not be considered as sufficient justification for the twelve-year delay between 1992 and 2004 until proceedings were actually commenced. More importantly, Canadian Brothers Limited had been the sole owner of the full share of the utile dominium of the land in question, so its compensation was separate and not to be shared. Any problems with other third parties should not, therefore, have affected the calculation of compensation in its regard, as was also evidenced by the first Notice to Treat which had made one separate and specific offer to the applicant. Moreover, the applicant had remained one and the same person. Yet, despite the passage of ten years, the compensation proceedings were still pending, and forty years after the taking of the land no compensation had yet been quantified. The applicant referred to the case of Frendo Randon and Others, cited above. He further noted that during the domestic proceedings it had become apparent that the CoL’s failure to act had been the result of an oversight.

41. Moreover, the applicant was of the opinion that he should be awarded the market value of the property, in view of the use being made of it - namely a reservoir - and the Government’s failure to pay compensation to date, forty years after the taking. He further noted that compensation under domestic law, which he interprets as being the value of the land in 1992 plus 5% interest per year, would not take account of the losses sustained by the applicant before 1992, a period during which he had been unable to make use of the land. He also noted that the LAB was bound and limited by law, with the result that whatever compensation it determined would not be sufficient. Moreover, he noted that the LAB usually augmented the Government’s offer not on the basis of equity, as claimed by the Government, but simply because the compensation offered by the Government was always low. The applicant referred to the Court’s findings in Guillemin v. France ((Article 50), 2 September 1998, Reports 1998-VI). Also bearing in mind the fact that the Government’s action completely frustrated the applicant’s business and that the failure to receive the compensation owed had had an impact on his private life, the applicant considered that the taking had not been proportionate.

42. As regards the inordinate delay, the applicant submitted that there was no doubt - as established by both domestic case-law and ECHR case-law - that in cases such as the present one, the Government’s failure to initiate the relevant proceedings constituted a breach of Article 6 and the applicants could not be blamed for not instituting the proceedings under Article 1078 of the Civil Code. Ultimately it was clear that it was only as a result of the judicial actions he had undertaken in 2000 that the Government had finally instituted compensation proceedings in 2004. The proceedings were not complex and concerned solely the technical matter of the valuation of the land. The applicant further submitted that he had cooperated with the LAB and had been present at each hearing. Moreover, he could not be blamed for delays caused by third parties. It was the LAB’s responsibility to process the case swiftly and yet, pointing to the last year, the applicant noted that there had been several adjournments for the purpose of awaiting the LAB’s architects’ replies to questions, and that between 2010 and 2011 there had been at least two adjournments requested by the LAB itself and two requested by the Government. He further disagreed with the Government’s contention that he had filed the questions outside the stipulated deadline, which had been extended following a request by the CoL.

(b) The Government’s submissions

43. The Government submitted that the taking of the land had been undertaken in accordance with the provisions of the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta and that it had pursued a legitimate aim, namely the building of a public reservoir by way of relief for the heavy floods in the area. Given the public interest at issue, the expropriation warranted compensation at less than the market value.

44. As to compensation, the Government submitted that the amount offered by the CoL in 1992 had constituted just compensation, given that the applicant had acquired the property in 1967 for 420 Pounds Sterling. Moreover, when the Government took the land, it had been an empty plot, as it had been since the applicant had acquired it seven years before, and no permits had been granted to the applicant. Furthermore, the Government contended that this part of the complaint was premature as the determination of compensation was currently pending - although in its last stages - before the Land Arbitration Board. Thus, the Government submitted that the case was different from that of Frendo Randon and Others v. Malta (no. 2226/10, just satisfaction, 9 July 2013) where the Court - referring to its principal judgment - had considered it unnecessary to wait for the outcome of the compensation proceedings. In that case the compensation proceedings were still pending more than forty years after the taking, while in the present case the taking had occurred in 1974, and compensation proceedings were now in their final stages. The Government further submitted that the applicant had received EUR 25,000 in respect of non-pecuniary damage for the two violations found and would still receive the value of the property at the time of the taking, as established by the LAB (which usually augmented the original offer on the basis of equity) plus interest at 5% per annum, which would adequately fulfil Convention requirements and would render the interference proportionate.

45. As to the length of time it took to pay compensation, the Government disagreed that the CoL had been inactive for thirty years. They noted that in 1992 it had issued the Notice to Treat and served the notice of expropriation on all the owners. Moreover, in 2002 the CoL had filed an application informing the domestic courts that the Notice to Treat was missing from the archives and requesting the appointment of new curators to replace the ones who were deceased. In addition, the Government was of the view, in response to the applicant’s complaint about the unreasonable time taken to pay compensation, that the time had to be taken as running from the date of the applicant’s first objection, namely September 1992, and not from the time of the taking (1974). Further, the delay had to be seen as lasting only up until 2002, when the preparatory work for the institution of proceedings was commenced by the CoL.

46. The Government explained that it was customary to deal with an expropriation as a single transaction, even if it included different titles and owners, it therefore made no sense to deal with the applicant’s compensation separately. The Government further submitted that the applicant had not lodged an action requesting that the domestic courts institute a time-limit within which the CoL would be bound to initiate proceedings.

47. The Government reiterated that case-law had shown that there existed no absolute time-limit and it was always dependent on the specific circumstances of the case in point. The present case was complex in that the land had belonged to several different owners and a number of persons claimed different rights over the land. Thus, the Government had to constantly file applications with the court to request directions to enable the serving of the notice of the expropriation. Moreover, certain persons had passed away, requiring the Government to take further steps and requiring the heirs to regularise the acts. Quoting the early case-law of the Court, the Government highlighted that the conduct of the parties had to be examined by the Court. In the present case, the Government considered that the delay had been the fault of the applicant and the other owners, who had caused a series of adjournments because they had failed to abide by the orders of the Board to submit further information or evidence. The Government specifically referred to seven adjournments attributable to the owners between 15 June 2006 and 16 October 2012 and noted a delay on the part of the applicant in submitting questions to the LAB by the deadline. The LAB had accepted two of the requests (arising from the aforementioned adjournments - one allowing further evidence and one concerning an onsite visit after the death of one technical member of the Board) in order to guarantee that the value of the land was fair and objective. The Government alleged that the delay had also been attributable to the applicant’s conduct while bringing proceedings, such as informing the board that no onsite visit had taken place when in fact it had, and failing to declare his share in the property.

2. The Court’s assessment

(a) General principles

48. The Court reiterates that a taking of property can be justified only if it is shown, inter alia, to be “in the public interest” and “subject to the conditions provided for by law”. Any interference with property must also satisfy the requirement of proportionality. As the Court has repeatedly stated, a fair balance must be struck between the demands of the general interest of the community and the requirement of protecting the individual’s fundamental rights, the search for such fair balance being inherent in the whole of the Convention. The requisite balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52, and Brumărescu v. Romania [GC], no. 28342/95, § 78, ECHR 1999-VII).

49. Compensation terms under the relevant legislation are material to the assessment of whether or not the contested measure respects the requisite fair balance and, in particular, whether it imposes a disproportionate burden on the individuals (see Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 94, ECHR 2005-VI). In this connection, the taking of property without payment of an amount proportionate to its value will normally constitute a disproportionate interference, whilst a total denial of compensation can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances (see The Holy Monasteries v. Greece, 9 December 1994, § 71, Series A no. 301-A). However, while it is true that in many cases of lawful expropriation only full compensation can be regarded as reasonably proportionate to the value of the property, Article 1 of Protocol No. 1 does not guarantee a right to full compensation in all circumstances. Legitimate objectives in the “public interest”, such as those pursued in measures of economic reform or measures designed to achieve greater social justice, may warrant reimbursement of less than the full market value (see Urbárska Obec Trenčianske Biskupice v. Slovakia, no. 74258/01, § 115, ECHR 2007-XIII).

50. The Court reiterates that the adequacy of the compensation would be diminished if it were to be paid without reference to various circumstances liable to reduce its value, such as unreasonable delay. Abnormally lengthy delays in the payment of compensation for expropriation lead to additional financial loss for the person whose land has been expropriated, putting him or her in a position of uncertainty (see Akkuş v. Turkey, 9 July 1997, § 29, Reports 1997-IV). The same applies to abnormally lengthy delays in administrative or judicial proceedings in which such compensation is determined, especially when people whose land has been expropriated are obliged to resort to such proceedings in order to obtain the compensation to which they are entitled (see Aka v. Turkey, 23 September 1998, § 49, Reports 1998 -VI).

51. The right of access to a court is an inherent aspect of the safeguards enshrined in Article 6. Thus, Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court (see Markovic and Others v. Italy [GC], no. 1398/03, § 92, ECHR 2006-XIV).

(b) Application to the present case

(i) Article 1 of Protocol No. 1 to the Convention

52. The Court has no doubt that in the present case the taking of the land was lawful and carried out in the public interest. As to proportionality, having regard to the finding of the Constitutional Court relating to Article 1 of Protocol No. 1 to the Convention (see paragraph 18 above), the Court considers that it is not necessary to re-examine in detail the merits of the complaint. As established by the domestic courts, there was no valid reason justifying the delay in paying compensation for the expropriation. The Court notes that in 2014, forty years after the taking of the land, the applicant has still not received compensation in respect of the property. It follows that the applicant has been made to bear a disproportionate burden.

53. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

54. In the light of the above, the Court does not find it necessary to determine whether appropriate compensation could be awarded by the LAB, a matter not debated before the constitutional jurisdictions.

(ii) Article 6 § 1 of the Convention

55. The Court notes that the Constitutional Court has already held that after thirty-seven years the applicant was still awaiting compensation for the taking of the land, and that in particular nearly thirty years after the taking of the property, compensation proceedings had still not been initiated. It found that this undoubtedly amounted to an unreasonable delay under Article 6 of the Convention. The Court has no reason to hold otherwise, and does not find it necessary to reply to each of the Government’s arguments, which have been rejected by the domestic courts and also by this Court in previous analogous cases.

56. Moreover, as to the period of time subsequent to the Constitutional Court judgment of November 2011, the Court notes that, following that appeal judgment, the proceedings before the LAB are still pending nearly three years later, thus running to another ten years in themselves. The Court notes that the proceedings ultimately concerned the valuation of a plot of land, and even though that process might have been rendered more intricate by the number of parties involved, that alone cannot justify a ten-year delay. Moreover, the fact that further delays were caused because of the death of some of the people concerned does not militate in favour of the Government, given that such circumstances were a natural consequence following the CoL’s inaction for a period of thirty years. Lastly, even though the applicant may have been responsible for some of the delay in the proceedings before the LAB, the Court reiterates that the judicial authorities remain ultimately responsible for the conduct of proceedings before them and ought to weigh up the advantages of continued adjournments against the requirement of promptness (see, mutatis mutandis, Gera de Petri Testaferrata Bonici Ghaxaq, cited above, § 43). Moreover, a considerable number of the adjournments were in fact attributable to Board members or its architects. A careful examination of the adjournments, and or corresponding minutes, before the LAB from the time the application was filed by the CoL on 12 January 2004 until the technical members presented their report, with the valuation of the property on 17 October 2012, indicates that the case seemed to be proceeding on auto-pilot, with little if any control by, or proper directions from the presiding magistrate over adjournments and time-limits.

57. In conclusion the Court finds that, in the present case, bearing in mind the CoL’s inaction for over thirty years, during which time the applicant did not have direct access to the LAB, together with the fact that ten years after the commencement of the proceedings they are still pending, there has been a violation of Article 6 § 1 under the head of “access to court” in so far as the applicant could not have initiated compensation proceedings, and a violation of the “reasonable time” principle guaranteed by the same provision in the period from 1974 to the present date.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

58. Lastly, the applicant complained under Article 6 that as a result of this delay he had been affected in relation to the compensation award, by changes of legislation which had a retrospective effect whilst proceedings were pending.

59. The Court notes that, even assuming that the applicant might be affected by the retroactive application of new legislation and that he therefore has victim status in respect of this complaint, the matter was never brought before the constitutional jurisdictions. It follows that the complaint is inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

60. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

61. The applicant claimed the value of the property - which in 2004 an architect estimated at EUR 775,000 - plus EUR 7,156.89 for ground rent paid from 1974 to date (at EUR 183.51 per annum) in respect of pecuniary damage. He stated that he was prepared to refrain from updating that claim (to 2014), but, given that no restituto in integrum could take place in the present case, it was only compensation at market value which could put him in the position he would have been in had the violations not occurred. He further claimed EUR 160,000 in respect of non-pecuniary damage for the mental suffering caused by the violations, and the frustration of seeing his commercial project (in respect of which he had already applied for permits) come to nothing, despite the area being a prime commercial location. He considered that the latter factor must also have had an impact on the value of the land to be established.

62. The Government considered that the expropriation had been lawful and that there was therefore no call for awarding the full market value in accordance with the case-law of this Court. However, even if compensation were to be awarded at open market values, the applicant’s valuation was excessive and by far exceeded the claim the applicant had made in 1992. They pointed out that the current domestic law (following the 2004 amendments which were not the subject of the applicant’s complaints before the domestic court) provided that the applicant could not receive in compensation more than he had asked for in his counter-claim. Moreover, that valuation had given no explanation of the criteria on which it was based. The Government noted that the proceedings before the LAB were coming to an end, and that in those proceedings the technical members of the Board valued the sub-utile dominium of the land (in 1990, the year in which - according to the architects - the President’s declaration was served) at EUR 272,623. Thus, the Government considered that the Court should not exceed that amount. They further contended that, according to domestic law, the applicant had lost possession of the property fourteen working days following publication of the expropriation in the Government Gazette, and the compensation calculation therefore ought to be made on the basis of the value in 1974. This was also the basis of the Court’s calculation in Schembri (cited above). Moreover, the Government noted that when they took the land it was simply an empty plot, and had been so for the seven years since the applicant had acquired title to it. There could therefore be no reference to loss of business potential.

63. The Government noted that the applicant had already received compensation for non-pecuniary damage at domestic level and no further award was therefore called for.

64. The Court notes that no compensation has yet been paid to the applicant in respect of the taking of the land. In view of the fact that the domestic proceedings relating to the payment of compensation remain pending forty years after the land was taken, the Court considers that it would be unreasonable to await the outcome of those proceedings (see Curmi v. Malta, no. 2243/10, § 65, 22 November 2011; and Frendo Randon and Others, cited above, § 77). There is no risk that the applicant will receive pecuniary compensation twice, as the national jurisdictions would inevitably take note of this Court’s award when deciding the case (see Frendo Randon and Others, cited above, §77).

65. As the Court has already noted the taking in the applicant’s case was not unlawful and did not lack public interest. It was thus not the inherent unlawfulness of the taking of the land that was at the origin of the violation found under Article 1 of Protocol No. 1, but rather the delay in instituting the relevant proceedings and the fact that to date - nearly forty years after the taking of the land - the applicant has still not been awarded any compensation for it.

66. The Court therefore considers that the compensation in the present case should - as in other similar cases (see, for example, Frendo Randon and Others v. Malta, (just satisfaction), no. 2226/10, § 20, 9 July 2013) - be based on the guidelines established in Schembri and Others v. Malta ((just satisfaction), no. 42583/06, § 18, 28 September 2010). The sum to be awarded to the applicant should therefore be calculated on the basis of the value of the land at the time of the taking, converted to the current value to offset the effects of inflation, plus simple statutory interest applied to the capital progressively adjusted.

67. The Court notes that the applicant has not submitted any valuation or suggestion as to what the value of the land was at the time of the taking, opting instead to claim market values which are uncalled for and to insist on the land’s potential for development. The Court further notes that the Government have also failed to submit any calculation based on an estimate of the value of the land at the time of the taking, - adjusted to bring it up to its present-day value and taking into account the rate of inflation - opting instead to ask the Court not to award more than what they believed the LAB would have awarded, namely EUR 272,623.

68. From the documents in its possession the Court notes that the Government’s architect estimated the freehold value of the applicant’s land in 1974 at EUR 5,960, in 1993 at EUR 45,850 and in 2004 at EUR 68,950. The only estimates of the value of the land supplied by the applicant are those for 1993 and 2004, which were quantified by the applicant’s architect at EUR 455,000 and EUR 775,000 respectively, that is to say around ten times the Government’s estimates. Similarly the Court notes that the Government’s offer in 1992 amounted to EUR 18,050, while the applicant’s counter-claim amounted to approximately EUR 559,050, that is to say more than thirty times what was offered by the Government.

69. Thus, the Court notes that in the present case it is not in possession of an impartial estimate of the value of the land in 1974, which ought to be its starting point for the purposes of its calculation, following the guidelines of Schembri, cited above. In fact, the only impartial estimate in its possession is the valuation of the land in 1990 by the technical members of the LAB. In the specific circumstances and in order for the applicant to avoid having to sustain yet further disadvantages resulting from the passage of time were the matter to be reserved by this Court, it will nonetheless proceed with the calculation of the compensation following the guidelines set out above, but taking as its starting point the value in 1990. That value, namely EUR 272,623 must be converted to the current value in order to offset the effects of inflation, and interest must be applied to the capital so adjusted. Unlike the case of Schembri and Others (cited above) - where the Court had held that the taking in that case had not pursued any pressing public-interest objective capable of justifying reimbursement of less than the market value - in the present case this is not so, given that the expropriation fully satisfied the public-interest requirement.

70. Having regard to the above factors and the value taken as a starting point, as well as the sums paid in ground rent, the Court considers it reasonable to award the applicant, EUR 445,000 plus any tax that may be chargeable on that amount, in compensation for the expropriation.

71. Bearing in mind the award of EUR 25,000 granted by the domestic courts the Court does not find it necessary to make an award in respect of non-pecuniary damage.

B. Costs and expenses

72. The applicant also claimed EUR 4,358.76 in respect of judicial costs which he was made to pay in the domestic proceedings and EUR 1,361.31 in extrajudicial fees connected to those proceedings, as well as EUR 314.47 in architect’s fees in connection with the proposed development and EUR 2,050.98 for the costs and expenses incurred before this Court.

73. The Government submitted that the applicant had not shown that he had actually paid the sums he had been ordered to pay by the domestic courts and thus could not claim those amounts. In any case the domestic court’s decision to share the costs had been justified. The Government further submitted that the architect’s and the extrajudicial costs had been unnecessarily incurred. It followed that an award in costs should not exceed EUR 2,000.

74. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court finds no reason to award the extrajudicial fees claimed, nor the architect’s fees, which are not connected with the expropriation at issue. Having regard to the documents in its possession and the above criteria, as well as the fact that outstanding domestic court expenses remain payable, the Court considers it reasonable to award the sum of EUR 6,000 covering costs under all heads.

C. Default interest

75. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning Article 6 § 1 on account of denial of access to court and length of proceedings and Article 1 of Protocol No. 1 to the Convention in connection with the delay in the payment of compensation admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of denial of access to court and length of proceedings;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 445,000 (four hundred and forty-five thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 6,000 (six thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

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

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 6 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Mark Villiger
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> AZZOPARDI v. MALTA - 28177/12 - Chamber Judgment [2014] ECHR 1201 (06 November 2014) URL: http://www.bailii.org/eu/cases/ECHR/2014/1201.html Cite as: [2014] ECHR 1201