MIFSUD AND OTHERS v. MALTA (European Court of Human Rights)

Communicated on 25 February 2019

THIRD SECTION

Application no.38770/17
PaulMIFSUD and others
against Malta
lodged on 23 May 2017

STATEMENT OF FACTS

A list of the applicants is set out in the appendix. The applicants are represented by Dr T. Abela, Dr I. Refalo, Dr S. Grech and Dr M. Refalo.

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

The applicants are the owners of land in Qajjenza, Birżebbuġia, Malta.

By means of a Presidential Declaration of 16 August 1978, published in the Government Gazette on 25 August 1978, the Government expropriated a parcel of land measuring 5,349 sq.m. owned by the applicants (or their predecessors) (hereinafter ‘Land A’). This expropriation was intended for the site to serve as an extension of the LPG filling plant or gas bottling plant (hereinafter referred to as ‘the plant’) operated by Enemalta Corporation ‑ a Government owned entity having a monopoly over the energy provision service in Malta ‑ whose successor is now Enemalta plc.

By means of another Presidential Declaration of 16 May 1984, published in the Government Gazette of 25 of May 1984, the Government expropriated another parcel of land, owned by the applicants (or their predecessors), measuring 3,985 sq.m. (hereinafter‘Land B’) adjacent to Land A. This land was intended to provide a buffer zone for the plant.

The Government offered 713.75 Maltese liras (MTL) for Land A and MTL 610 for Land B, by way of compensation. The applicants did not accept this amount and therefore proceedings were initiated before the Land Arbitration Board (LAB) for it to determine the compensation due.

By means of two judgments of 22 January 1990 the LAB established the compensation for Land A at MTL 952 (approximately 2,218 euros (EUR)) and for Land B MTL 800 (approximately EUR 1,863). The LAB ordered that the final deeds of transfer be concluded.

Nevertheless, no such deed was ever concluded and the Government never acquired the land or paid the price determined by the LAB, despite the authorities having started to use the land since its de facto taking. Under Maltese law until the price established is actually paid and the deed of transfer formally published, the expropriation is not considered to have been finalised.

Eventually, the Government announced that the plant in Qajjenza would be phased out and another plant set up in a completely different zone. Given that the applicants’ land had not been formally transferred to the Government and that the expropriation had not been concluded, and in the light of Government’s intention to dismantle the plant in Qajjenza, the applicants took the view that there was no longer any public purpose to be served by the 1978 and 1984 expropriations.

Accordingly, on 1 December 2006 the applicants wrote to the Commissioner of Land, through their lawyer, requesting the lands to be returned to them. This letter remained unanswered, and the applicants filed a judicial letter on 27 November 2008 requesting compensation for the occupation of their property during all those years, as well as the return of the property. As no action was taken in this regard, another letter was sent on 28 July 2009 reiterating the same requests. No reply ensued and no compensation was paid.

Following a notification to the applicants to this effect received on 18 April 2012, by means of Presidential Declaration published in the Government Gazette of 6 June 2012, the Government expropriated two small parcels of the applicants’ land in Qajjenza, namely a parcel measuring 509 sq.m, and a parcel measuring 139 sq.m., both of which formed part of the larger tract of land (B) which was the subject of the original expropriations. The taking was made in pursuance of Article 22 (8) of the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta, following the 2002 amendments (see Relevant domestic law), in the light of which ownership of the land was transferred to the State on the day of the declaration. What use, if any, was made of the parcel measuring 509 sq.m.is unclear from the domestic judgments, and the parcel measuring 139 sq.m. was used as a substation serving residents and business in the area.

When re‑expropriating these two parcels of land in 2012, the Government offered EUR 205 for the parcel measuring 509 sq.m., and EUR 58.50 for the parcel measuring 139 sq.m. These values were based on the figures given in 1990 by the LAB which in turn had based itself on the value of the land at the time of the 1978 and 1984 expropriations respectively.

The applicants did not accept these amounts by way of compensation. In particular they considered that the two small parcels taken in 2012 had greatly reduced the value of the remaining land given that those parcels cut right across the applicants’ land so that a wedge was taken out of its middle, leaving smaller, irregular, parcels on either side of the expropriated parcels. Thus the one large and continuous parcel of land owned by the applicants was disrupted. Therefore, in the applicant’s view, it was as though the entire area had been de facto expropriated.

According to the architect’s (CC) valuations commissioned by the applicants in 2009, Land A was valued at EUR 4,400,000 (this land was valued as being within the development scheme and as used for industrial purposes) whereas Land B was valued at EUR 970,000 (this land was valued as being partly within the development zone); the loss of rent covering the period from date of taking to August 2009 was calculated as amounting to EUR 2,140,000 for Land A and EUR 437,000 for Land B.

2.  Constitutional redress proceedings

(a)  First-instance

The applicants filed constitutional redress proceedings on 20 March 2013 asking the court to declare that their right to the peaceful enjoyment of their property had been being violated since the taking of their land was not in the public interest and the compensation offered to them was disproportionate, given the damage suffered, as it did not reflect the market value of the property. The applicants requested the court to grant all those remedies it deemed necessary and effective in order to redress the violation, and among those remedies the applicants specifically asked the court to annul the judgments given by the LAB on 22 January 1990; to liquidate the proper compensation due to the applicants; or to order the return of the property to the applicants.

In the course of these proceedings, a representative of the Commissioner of Lands (hereinafter CoL) testified, on 27 June 2014, that there was no known purpose for the 2012 expropriations. She also confirmed that when the CoL had filed the cases before the LAB in 1984 it knew who the owners of the land were and therefore there was no justifiable reason for the failure to pay the compensation liquidated by the LAB. Representatives of Enemalta plc (the user of the land) also testified that they did not know why the parcel measuring 509 sq.m. was again expropriated in 2012.

Pending these proceedings the Government also brought forward a valuation of the properties in question dated June 2014 which took into consideration the locality, size, state and potential in line with local plans as well as other factors likely to affect its value. According to that report, by architect MS, the parcel measuring 509 sq.m. (valued at EUR 205 in the 2012 notice to treat) was worth EUR 14,000 when valued as agricultural land; the parcel measuring 139 sq.m. (valued at EUR 58.50 in the 2012 notice to treat) was worth EUR 4,000 when valued as agricultural land; the remaining parcel measuring 3,337 sq.m. (i.e. Land B, less the two parcels measuring 139 and 509sq.m.) was worth EUR 97,000 when valued as agricultural land; a parcel measuring 5,213 sq.m. was valued at EUR 140,000 taken as land used for an LPG filling plant; and a parcel measuring 137 sq.m. was valued at EUR 4,000 when valued as barren land. The two latter parcels formed Land A, expropriated in 1978.

According to an architect’s (JS) valuation prepared on 21 July 2009 for Enemalta plc the total value of land measuring 6,873 sq.m., where part of the Qajjenza plant was located (which measurement excludes the buffer zone), would be EUR 900,000 if all the equipment of the plant were to be removed from the site. According to another architect’s (MS) valuation prepared in October 2008 and according to the testimony of the same architect, the total value of the land (measuring 21,828 sq.m.) originally occupied by the plant (excluding the buffer zone) was EUR 16,830,500.

By a judgment of 29 April 2016 the Civil Court (First Hall) in its constitutional competence considered that it had to examine separately the expropriations of 1973 and 1984 on the one hand and those of 2012 on the other hand, as they had been taken under different laws.

It held that the takings in 1978 and 1984 (excluding the two small parcels which were the subject of the 2012 re‑expropriations) were in breach of Article 1 of Protocol No. 1 to the Convention because no public purpose subsisted now and the authorities never actually expropriated the lands (since they had not paid the applicants, nor signed the relevant deed). It therefore declared the 1978 and 1984 expropriations (except insofar as they affected those parcels of land re‑expropriated in 2012) without effect (but not null) and it ordered the return of the land to the applicants.

The position was not the same for the two parcels of land expropriated in 2012 under Article 22 (8) of the Ordinance which had been transferred to the Government and the public interest of which had not been contested within the 21‑day limit stipulated in law (Article 6 (2) of the Ordinance). Moreover, the smaller of those parcels was still being used as a substation.

The court also held that the delay in finalising the 1978 and 1984 expropriations had resulted in a breach of the applicants’ rights under Article 6 of the Convention.

It ordered the Government to pay EUR 15,000 to the applicants by way of compensation for the violation of their rights. No costs were to be paid by the applicants.

(b)  Appeal

Both the Government and the applicants appealed against this judgment. In particular the applicants complained about the low award of compensation in view of the amount of years during which the deprivation persisted; and that the expropriation of the two smaller parcels of land in 2012, in particular that measuring 509 sq.m., had not pursued any public interest, but solely served to diminish the value of their entire property; it had also not been correct to find that they could not complain about the latter because they had failed to do so under Article 6 (2) of the Ordinance, since the latter did not provide that the time‑limit was to run from notification.

By a judgment of 25 November 2016 the Constitutional Court held that it was not open to the first court to find a breach of Article 6 as the applicants had not complained about that, and therefore it revoked that part of the first‑instance judgment.It confirmed the remainder.

As to the award of compensation of EUR 15,000, which it considered to be non‑pecuniary damage, and which it confirmed, the Constitutional Court noted that one had to take into consideration, on the one hand, the uncertainty in which the applicants had been left over a prolonged period of time, the size of the land, and the years during which they had been deprived of it; and on the other hand, the fact that the takings of 1978 and 1984 had originally been in the public interest, that the land had been agricultural, as well as the fact that it was now being returned to them. It also noted that in their original application the applicants had requested compensation for the taking or the return of the land. It followed that since the land was returned to them no non‑pecuniary damage was due.

As to the two smaller portions of land, it held that in 2012 these were still occupied by Enemalta, and the applicants had not substantiated any abuse by the authorities. The first‑instance court was also correct to find non‑exhaustion of ordinary remedies, in so far as, despite being notified two months before the Presidential Declaration of 2012, as admitted in the testimony of TG, the applicants had, at the time, failed to claim that there had been no public interest in accordance with Article 6 (2) of the Ordinance. The constitutional jurisdictions where therefore not called upon to take cognisance of the merits of the case.

The Constitutional Court apportioned costs as follows: costs of first‑instance were to remain as they had been decided; the costs of the appeal of the CoL were to be borne as to 4/5 by the CoL and 1/5 by the applicants; costs of the appeal of the applicants were to be borne entirely by them; and costs of the cross appeal of Enemalta plc were to be borne as to 3/4 by the said Enemalta plc and 1/4 by the applicants.

3.  Information related to Enemalta

On 6 May 1987 Enemalta Corporation (the predecessor in title of Enemalta plc) purchased from Laylay Company Limited a parcel of land measuring 46,201 square metres for the price of MTL 105,878 (approximately EUR 246,629) which price had been established at the rate of MTL 2,576.12 for every 1,124 sq.m. This land was in close vicinity to the land belonging to the applicants.

In March 2015 the plant started to be dismantled and decommissioned given that a new plant was being set up elsewhere.

4.  The situation in 2017

The land belonging to the applicants was completely abandoned and in a state of dereliction; however all traces of the gas tanks had been removed. Another parcel of land belonging exclusively to Enemalta plc, which is adjacent to the applicants’ land, was also abandoned; there were only a few dilapidated structures and the area was not being used in any manner. No equipment belonging to the original plant remained. The plant in the new location has been in operation since July 2013 and was being run by a private company (Liquigas) – not Enemalta plc.

Despite the Constitutional Court judgment the applicants had not obtained possession of their land back, as they have not been granted access to it and the land is still sealed off.

An architect’s (PB) valuation, carried out on behalf of the applicants, assessed the value of the applicants’ land in 2017 reflecting the loss for the applicants resulting from the 2012 re‑expropriations according to which the expropriation of the triangular parcel of land measuring 509 sq.m. in 2012 adversely affected the remainder of the applicants’ land in the amount of EUR 1,153,500. According to the same valuation, the accumulated rental yield from 1978 to 2017 for the land which had been the subject of the 1978 expropriation was EUR 3,476,942 which with a conservative rate of interest of 2.5% amounted to a total loss of EUR 4,248,223.

B.  Relevant domestic law

Following amendments in 2002, Sections 6 and 22 (8) of the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the laws of Malta, in so far as relevant, read as follows:

Section 6

“(2) Any person who has an interest in land, in respect of which a declaration of the President as is referred to in subarticle (1) is made, may contest the public purpose of the said declaration before the Land Arbitration Board by means of an application to be filed in the registry of the said Board within twenty-one days from the publication of the said declaration and the provisions of the Code of Organization and Civil Procedure applicable to the hearing of causes before the Civil Court, First Hall, including the provisions regarding appeals from such decisions, shall, mutatis mutandis, apply to the determination of the said application:

Provided that the filing of an application in terms of this subarticle shall not hinder the continuance of the expropriation proceedings or the doing of anything that may be done in respect of the land as provided in this Ordinance during the time when the application is still not determined, without prejudice to the right of the applicant to seek compensation in the event that the declaration of the President is found to be without public purpose.”

Section 22

“(8) Upon the making of a Declaration by the President in accordance with this Ordinance that any land is to be acquired by the absolute purchase thereof, the absolute ownership of the land to which the declaration refers shall be deemed to be a registration area for the purposes of the Land Registry Act and the absolute ownership thereof shall by virtue of this Ordinance and without any further, assurance or formality be transferred to and be acquired by the competent authority free and unencumbered from any charge, hypothec or privilege and with all the appurtenances thereof, and the competent authority shall cause such land to be registered in the Land Registry in its name in accordance with the Land Registry Act within three months from the issue of the Declaration of the President.”

COMPLAINTS

The applicants complain that part of their property (measuring 509 sq.m) had been expropriated without there being a public interest. The Government had not mentioned any, and the Constitutional Court had relied on the original public interest without delving further into the matter. In any event they considered that even had the 2012 takings been in the public interest, the applicants had not been compensated adequately in so far as the compensation for those parcels had been based on values applied by the LAB in 1990 referring to the years 1978 and 1984 and in connection with agricultural land despite the fact that those parcels of land were in a development zone in 2012. Furthermore, no consideration had been given to the fact that the entirety of their land had been devalued by the expropriation of these parcels found in the middle of their land.

The applicants also complain that no compensation had been received for the occupation of the land which had been given back to them as a result of the expropriations of 1978 and 1984 which had been declared as having no effect. They thus considered that they remained victims of the violation despite the Constitutional Court judgment in their favour.

They relied on Article 1 of Protocol No. 1 alone and in conjunction with Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1.  Given the lack of any compensation for the use from 1978 and 1984 respectively, until 2012, of the most part of Land A and B (excluding the properties measuring 509 sq.m., and 139 sq.m), and the fact that that property has not been effectively released to date despite the order to that effect by the Constitutional Court, are the applicants still victims of a violation of Article 1 of Protocol No. 1 as upheld by the Constitutional Court? If so, has there been a violation of that provision?

2.  Did the de facto expropriation lasting from 1978 and 1984 respectively, until 2012, of the applicants’ properties measuring 509 sq.m., and 139 sq.m respectively, give rise to a disproportionate interference with their property rights, particularly in view of the fact that no compensation has ever been awarded in that respect?

3.  In relation to the piece of land measuring 509 sq.m expropriated in 2012, have the applicants been deprived of their possessions in the public interest, within the meaning of Article 1 of Protocol No. 1? What was the intended use for such land, as well as the actual use of it, in 2012 and thereafter?

4.  Did the deprivation, in 2012, of the applicants’properties measuring 509 sq.m., and 139 sq.m respectively, give rise to a disproportionate interference with their property rights, particularly in view of the amount of compensation awarded for the expropriation of that land?

 

APPENDIX

No. Firstname LASTNAME Birth year Nationality Place of residence
1.        Paul MIFSUD 1948 Maltese Żabbar, Malta
2.        Rebecca AINSBURY 1976 British Cumbria, England
3.        Paul ALEXANDER 1941 Australian Cowandilla, Australia
4.        Bernarda BALZAN 1933 Maltese Żejtun, Malta
5.        Carmen BUTTIGIEG 1941 Maltese Żejtun, Malta
6.        Daniela COOMBE 1979 British Cumbria, England
7.        Mary DAVIES 1950 Maltese Peverell, England
8.        Lourdes FARRUGIA 1944 Australian Glenelg, Australia
9.        Mary FELICE 1952 Maltese St Albans, England
10.    Catherine FSADNI 1943 Maltese Żejtun, Malta
11.    Angela GAUCI 1945 Maltese Gżira, Malta
12.    Anthony GAUCI 1946 Maltese Żejtun, Malta
13.    Charmaine GAUCI 1976 Maltese Żejtun, Malta
14.    Paul GAUCI 1985 Maltese Gżira, Malta
15.    Saviour GAUCI 1948 Maltese Żejtun, Malta
16.    Maria MATHEWS 1961 Australian Highbury, England
17.    Alfred MIFSUD 1938 Maltese Żejtun, Malta
18.    Carmel MIFSUD 1949 Maltese Luqa, Malta
19.    George MIFSUD 1955 Australian Baulkham Hills, Australia
20.    Paoline MIFSUD 1961 Maltese Peverell, England
21.    Vivienne MIFSUD 1944 Maltese Żebbug, Malta
22.    Marcia Martha SCIBERRAS 1946 Australian Grange, Australia
23.    Victoria STAINER 1954 Maltese Melksham, England
24.    Catherine VELLA 1941 Maltese Żejtun, Malta
25.    Joseph VELLA 1963 Maltese Solihull, England
26.    Paul VELLA 1938 Maltese Żejtun, Malta
27.    Renato VELLA 1981 Maltese Żejtun, Malta
28.    Vincent VELLA 1941 Maltese Gozo, Malta
29.    Melanie WHILE 1975 British Cumbria, England
SHEIN Many GEO's

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