THIRD SECTION
\nDECISION<\/p>\n
Applications nos. 16467\/17 and 24115\/17
\nEmidio AZZOPARDI against Malta
\nand Victor ATTARD and Others against Malta<\/p>\n
The European Court of Human Rights (Third Section), sitting on 12\u00a0March 2019 as a Chamber composed of:<\/p>\n
Branko Lubarda, President,
\nVincent A. De Gaetano,
\nDmitry Dedov,
\nPere Pastor Vilanova,
\nAlena Pol\u00e1\u010dkov\u00e1,
\nJolien Schukking,
\nMar\u00eda El\u00f3segui, judges,
\nand Fato\u015f Arac\u0131, DeputySection Registrar,<\/p>\n
Having regard to the above applications lodged on 20 February 2017 and 16\u00a0March 2017 respectively,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0A list of the applicants is set out in the appendix. They were represented by Dr C. Galea, a lawyer practicing in Victoria,Gozo.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 2.\u00a0\u00a0The facts of the case, as submitted by the applicants, may be summarised as follows.<\/p>\n 1.\u00a0\u00a0Background to the case<\/em><\/p>\n 3.\u00a0\u00a0In 1983 the applicants were joint owners of a tract of land (hereinafter \u201cthe property\u201d) in Xag\u0127ra, Gozo.<\/p>\n 4.\u00a0\u00a0In 1983 by two separate declarations of the President of Malta it was declared that the two pieces of land, constituting the property at issue in the present case, namely Land\u00a0A measuring 942 square metres and Land\u00a0B measuring 484 square metres, were to be acquired by virtue of the Land Acquisition (Public Purpose Ordinance) (hereinafter \u201cthe Ordinance\u201d), Chapter\u00a088 of the Laws of Malta (see Relevant domestic law and practice below).<\/p>\n 5.\u00a0\u00a0The authorities took possession of the land on 4 November 1983 but did not make an offer of compensation, by means of a notice to treat, as bound to do by law.<\/p>\n 6.\u00a0\u00a0The law at the relevant time did not provide for any procedure allowing the applicants 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\u2011limit applied.<\/p>\n 7.\u00a0\u00a0While the law was silent on the matter, the practice at the time was that once the quantum of compensation was established, owners would be paid such quantum plus interest of 5% on the quantum established, or the quantum offered if it had been accepted, with effect from the date of the taking of the land up to the date of the publication of the deed. During the domestic proceedings (mentioned below) relevant witness testimony confirmed that this was the constant practice, reflecting the interest applied by banks at the time.<\/p>\n 8.\u00a0\u00a0In 1997, after twelve years waiting for an offer, the applicants wrote to the Commissioner of Land (\u2018Commissioner\u2019) asking him to undertake all the necessary action so that the procedure leading to the acquisition of the land and to the publication of the deed of transfer be initiated. No reply was received.<\/p>\n 9.\u00a0\u00a0In 2002 by means of Act XI of 2002, the Ordinance was amended. In particular Sections 12 and 22 thereof were substituted and Subsidiary Legislation 88.02 introduced (see Relevant domestic law and practice below).<\/p>\n 10.\u00a0\u00a0On 4 July 2003 another letter was sent to the Commissioner which was acknowledged in the same month, by the authority; however, again no action ensued.<\/p>\n 2.\u00a0\u00a0Constitutional redress proceedings (No. 25\/2004\/1)<\/em><\/p>\n 11.\u00a0\u00a0In 2004 in the absence of any action from the authorities who had been legally bound to undertake the relevant steps, the applicants instituted constitutional redress proceedings complaining about a violation of their property rights in that they had not yet received any compensation and that they had had no access to a tribunal to force the authorities to award them compensation. They relied on Article 1 of Protocol No. 1 to the Convention.<\/p>\n 12.\u00a0\u00a0Pending these proceedings the Commissioner made an offer for compensation (see below) and these proceedings were thus adjourned sine die.<\/p>\n 3.\u00a0\u00a0Other relevant facts<\/em><\/p>\n 13.\u00a0\u00a0Pending the above\u2011mentioned constitutional redress proceedings, pursuant to the 2002 amendments, on 21 December 2005, two fresh presidential declarations were issued in respect of the two pieces of land.<\/p>\n 14.\u00a0\u00a0In 2006 further amendments were made to the law, in particular by means of Act I of 2006 and Act III of 2006 (see Relevant domestic law and practice below). According to these amendments the interest on the value of the transfer of property was to be calculated on the average between the amount initially offered by the Commissioner and that finally awarded, at the rate of 5% per annum. Furthermore, the amendments provided that, with effect from the date of the new presidential declaration, the interest payable was that earned on the bank deposit made by the Commissioner.<\/p>\n 4.\u00a0\u00a0Compensation proceedings<\/em><\/p>\n 15.\u00a0\u00a0On 12 April 2007 the Commissioner issued two notices to treat, offering 75,600\u00a0Maltese liras (MTL) (approximately 176,284 euros (EUR)) for Land A and MTL\u00a038,800 (approximately EUR 90,566) for Land B. The applicants refused the offer and in 2007 the matter was brought before the Land Arbitration Board (\u201cthe LAB\u201d) for it to establish fair compensation.<\/p>\n 16.\u00a0\u00a0In the compensation proceedings before the LAB the applicants claimed compensation amounting to MTL 440,700 (approximately EUR\u00a01,026,555) for Land A and MTL 226,400 (approximately EUR\u00a0527,370) for Land B.<\/p>\n 17.\u00a0\u00a0By a decision of 4 June 2009 the LAB established fair compensation as being EUR 877,707.89 for Land A and EUR\u00a0450,996.68 for Land B.<\/p>\n 18.\u00a0\u00a0The Commissioner appealed and by a judgment of 24 February 2012 the Court of Appeal sent the case back to the LAB for the Commissioner to be able to request explanations by the technical members of the LAB as to their calculations.<\/p>\n 19.\u00a0\u00a0The Commissioner filed questions to the technical members on 30\u00a0May 2012. The latter replied on 4 July 2012. The Commissioner filed his submissions on 6\u00a0September 2012 and on 28 November 2012 the applicants filed their replies.<\/p>\n 20.\u00a0\u00a0By a decision of 5 June 2013 the LAB confirmed the valuations as set out in their decision of 4 June 2009.<\/p>\n 21.\u00a0\u00a0The Commissioner again appealed and by two judgments of 28\u00a0March 2014 the Court of Appeal turned down the appeal and confirmed the quantum of compensation.<\/p>\n 5.\u00a0\u00a0Further amendments<\/em><\/p>\n In the meantime in 2009 the Ordinance was again amended by means of Act\u00a0XXI of 2009 (see Relevant domestic law and practice below).<\/p>\n 6.\u00a0\u00a0The transfer of property<\/em><\/p>\n 22.\u00a0\u00a0On 16 June 2014 the deed of transfer of ownership was published and the Government paid the applicants the value as established by the LAB (i.e. EUR\u00a0877,707.89 for Land A and EUR 450,996.68 for Land B) plus interest with effect from the date of taking of the land up to the date of the publication of the deed, in accordance with the Ordinance as it stood at that date, that is in 2014, applying the relevant amendments in particular Section 12(3) of the Ordinance. Thus, interest was paid on the average between the amount initially offered by the Commissioner and that finally awarded by the LAB, at the rate of 5% per annum (i.e. EUR 822,258.14 and 422,943.33 respectively for Land A and B), together with the interest earned on the bank deposit affected by the Commissioner in connection with the second declaration (i.e.\u00a0EUR\u00a031,386 and EUR 16,678 respectively for Land A and B). This reflected a total interest of EUR 853,644 on Land A and EUR\u00a0439,172 on Land B.<\/p>\n 7.\u00a0\u00a0Constitutional redress proceedings (No. 25\/2004\/1) \u2011 continuation<\/em><\/p>\n 23.\u00a0\u00a0Following the deed of transfer, the applicants felt that their property rights had been breached as a result of the interest paid to them which was substantially lower than that which they would have received under the previous practice.<\/p>\n 24.\u00a0\u00a0On 31 July 2014 the applicants requested the court to reappoint their case for hearing and the court upheld the request. They explained that their complaint no longer required the Commissioner to take the relevant steps to undertake the transfer the property but that their complaint was now related to the amount of interest paid. They considered that, as a result of the amendments, the applicants were denied interest in the amount of EUR\u00a0828,025. It followed that the Government had introduced legislative amendments shifting the situation in the Government\u2019s favour, decades after the taking of the applicants\u2019 property. Moreover, during such time the applicants had had no access to court to request compensation, and could thus do nothing against the inaction of the authorities.<\/p>\n 25.\u00a0\u00a0By a judgment of 23 May 2016 the Civil Court (First Hall) in its constitutional competence rejected the applicants\u2019 updated claims on the merits.<\/p>\n 26.\u00a0\u00a0Having accepted to take cognisance of the case in the absence of any ordinary remedies the court considered that the taking had been lawful and pursued the public interest (road construction).<\/p>\n 27.\u00a0\u00a0As to the proportionality of the measure, the court noted that the values awarded for the land had not been contested. What was being contested was the payment of interest. The applicants had been paid EUR\u00a02,621,521.35 (value of land plus interest) and they were claiming a further EUR 789,076.52 which represented the difference between the interest paid to them and that which would have been paid to them in line with the practice applicable before the amendments. The court noted that the previous practice was calculated at 5% interest on the value established, which was based on the rates the banks applied to simple savings accounts at the time. However, in more recent years the banking reality had changed and ordinary savings accounts were receiving interest of between 0.3% and 0.18%. Moreover, it was relevant that the value of the land was based on its value in 2005 and not in 1983 when the land had been taken over by the authorities. Thus, the applicants had already benefitted from the increase in value of the property. It would have been otherwise had the valuation of the land been based on its value in 1983, in which case the rate of interest would have been of great importance. Given that the applicants were awarded the value of the land in 2005, and nevertheless were also awarded interest on that amount, dating back from 1983, the court considered that such interest which formed part of the compensation was also adequate. The court noted that it was nevertheless unacceptable that the applicants had had to wait thirty years to receive compensation for the taking of their property.<\/p>\n 28.\u00a0\u00a0The applicants were ordered to pay one third of the costs of the proceedings.<\/p>\n 29.\u00a0\u00a0On 13 June 2016 the applicants appealed, noting in particular that the court had not taken account of the fact that the amendment had had retroactive effect.<\/p>\n 30.\u00a0\u00a0By a judgment of 25 November 2016 the Constitutional Court rejected the appeal and confirmed the first\u2011instance judgment. In particular it noted that it was of great importance that the value of the land was based on a 2005 valuation, i.e. twenty\u2011two years after the taking, and thus the applicants had already benefitted from the increase in value of the property. It followed that a calculation of interest based on a mean between the two valuations was adequate in such circumstances. Furthermore, the new amendments had not changed the law. Indeed prior to the amendments, the payment of interest was based on a practice which reflected the rates established by banks, it followed that the amendments introduced a new rule solely to fill a lacuna which existed in the law. Indeed in that light the applicants had had no vested right. In conclusion, while the applicants had had to wait thirty years for their compensation, they had eventually obtained such compensation, which was, moreover, adequate. The costs of appeal proceedings were to be paid by the applicants.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 1.\u00a0\u00a0The Ordinance<\/em><\/p>\n 31.\u00a0\u00a0Prior to the amendments introduced in 2002, the LandAcquisition (PublicPurposes) Ordinance, Chapter 88 of the Laws of Malta, which has now been repealed, provided that:<\/p>\n Section 12(1)<\/p>\n \u201c…the competent authority shall give to the owner a notice … by means of a judicial act, stating the amount of compensation, as shown in a valuation to be attached to the notice to treat.\u201d<\/p>\n Section 13(1)<\/p>\n \u201cThe amount of compensation to be paid for any land required by a competent authority may be determined at any time by agreement between the competent authority and the owner (…).\u201d<\/p>\n Section 22<\/p>\n \u201cIf the owner shall by a judicial act decline to accept the offer made by the competent authority, the matter shall be brought before the Board by an application to be made by the competent authority, and the Board shall give all necessary orders or directions in accordance with the provisions of this Ordinance.\u201d<\/p>\n 32.\u00a0\u00a0In so far as relevant, Section 12(3) of the same Ordinance, as amended in 2006, concerning the interest applicable in cases of expropriation read:<\/p>\n \u201csimple 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:<\/p>\n 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:<\/p>\n 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 centumper 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.\u201d<\/p>\n 33.\u00a0\u00a0Schedule 3 to the Ordinance provided that the rate of 5% per annum was to be calculated on the mean value between the value on the date of the taking (i.e. the offer made by the Commissioner) and the value on the date of the determination of the value by the LAB.<\/p>\n 34.\u00a0\u00a0In so far as relevant, Section 22 of the same Ordinance, subsequent to the 2009 amendments, read as follows:<\/p>\n Article 22<\/p>\n \u201c(1) If the competent authority and the owner agree as to the amount of compensation for any land, the Board, on the application of any one of the parties, shall make an order carrying the agreement into effect:<\/p>\n Provided that the amount of acquisition rent or recognition in rent, as the case may be, shall be determined in terms of the relevant provisions of article 27.<\/p>\n (2) Where the land is to be acquired by the absolute purchase thereof (including the acquisition by conversion from possession and use or public tenure into absolute ownership), the President\u2019s Declaration issued for the purposes of article 3, shall state the amount of compensation which the competent authority is willing to pay for the land to which the declaration refers. The Declaration shall have attached with it a valuation drawn up by an architect and where available a site plan of the land described in the Declaration.<\/p>\n (3) Within fifteen working days from the publication of the President\u2019s Declaration as is referred to in subarticle (2) in the Gazette the Government shall deposit in an interest bearing bank account (which will guarantee a minimum of interest per annum as the Minister responsible for lands may by regulation under this subarticle prescribe) a sum equal to the amount of compensation offered in the President\u2019s Declaration. Such sum shall be freely withdrawn together with any interests accrued thereon by the person or persons entitled to such compensation upon evidence to the entitlement thereto, in a manner satisfactory to the competent authority:<\/p>\n …<\/p>\n (5) The amount deposited as provided in subarticle (3) together with any interests accruing thereon may be withdrawn as provided in the said subarticle whether or not the sum deposited as compensation has been accepted as the amount of compensation due, and the withdrawal of such deposit interests shall not prejudice the right competent to any person to take action according to this Ordinance for the purpose of determining any further compensation that may be payable to him in accordance with this Ordinance.<\/p>\n (6) Where the person entitled to compensation does not accept that the amount deposited is adequate, such person may apply to the Board for the determination of the compensation in accordance with the provisions of this Ordinance. Such application shall, on pain of nullity, state the compensation that in the opinion of the applicant is due.<\/p>\n (7)\u00a0Such application shall be filed in the Registry of the Board within twenty one days from the notification of the judicial act by the competent authority accepting proof of evidence in accordance with subarticle (4). The Board shall determine such compensation and shall give all necessary orders and directives in accordance with this Ordinance…\u201d<\/p>\n 2.\u00a0\u00a0The Civil Code<\/em><\/p>\n 35.\u00a0\u00a0Article 1078 (b) of the Maltese Civil Code, Chapter 16 of the Laws of Malta, in so far as relevant, reads as follows:<\/p>\n \u201cWhere 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:<\/p>\n …<\/p>\n (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 the circumstances.\u201d<\/p>\n COMPLAINTS<\/strong><\/p>\n 36.\u00a0\u00a0The applicants complained under Article 6 of the Convention and Article\u00a01 of Protocol\u00a0No.\u00a01 to the Convention that they had been denied interest as was to be calculated at the time of the taking of their property as a result of legislative intervention by the State which shifted the balance in the Government\u2019s favour.<\/p>\n THE LAW<\/strong><\/p>\n A.\u00a0\u00a0Joinder of the applications<\/strong><\/p>\n 37.\u00a0\u00a0In accordance with Rule 42 \u00a7 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.<\/p>\n B.\u00a0\u00a0Article 6 of the Convention<\/strong><\/p>\n 38.\u00a0\u00a0The applicants claimed that they had been subjected to legislative interventions by the State which shifted the balance in the Government\u2019s favour. They relied on Article 6 of the Convention which reads as follows:<\/p>\n \u201cIn the determination of his civil rights and obligations …everyone is entitled to a fair …hearing …by [a] …tribunal …\u201d<\/p>\n 39.\u00a0\u00a0The Court reiterates that for Article 6 \u00a7 1 to be applicable under its \u201ccivil\u201d limb, there must be a \u201cdispute\u201d regarding a \u201cright\u201d which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 \u00a7 1 into play (see Regner v.\u00a0the Czech Republic\u00a0[GC], no.\u00a035289\/11, \u00a7 99, 19 September 2017).<\/p>\n