FOURTH SECTION
DECISION
Application no. 42584/21
B & B PROPERTY DEVELOPMENT CO LTD
against Malta
The European Court of Human Rights (Fourth Section), sitting on 4 February 2025 as a Chamber composed of:
Lado Chanturia, President,
Faris Vehabović,
Tim Eicke,
Ana Maria Guerra Martins,
Anne Louise Bormann,
András Jakab, judges,
Geoffrey Valenzia, ad hoc judge,
and Simeon Petrovski, Deputy Section Registrar,
Having regard to the above application lodged on 18 August 2021,
the decision to give notice to the Maltese Government (“the Government”) of the complaints concerning Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention concerning the expropriated land and the land taken and used for roads and to declare inadmissible the remainder of the application;
Having regard to the parties’ observations;
Considering that Ms Lorraine Schembri Orland, judge elected in respect of Malta, withdrew from sitting in the case (Rule 28 § 3 of the Rules of Court) and that the President of the Chamber decided to appoint Mr. Geoffrey Valenzia to sit as an ad hoc judge;
Having deliberated, decides as follows:
THE FACTS
1. The applicant company, B & B Property Development Co Ltd, is a Maltese company, registered in 1968 in Sliema. It was represented before the Court by Dr I. Refalo, Dr M. Refalo and Dr S. Grech, lawyers practising in Valletta.
2. The Government were represented by their Agent, Dr C. Soler, State Attorney, their then Co-agent Dr J. Vella, then advocate at the Office of the State Advocate, and their Co-agent Dr A. Falzon, advocate at the Office of the State Advocate.
THE CIRCUMSTANCES OF THE CASE
3. By means of Presidential Declaration no. 650, published in the Government Gazette of 14 October 1977, the Government declared that a piece of land measuring 5,474.5 sq. m. was required for a public purpose, and this in terms of the provisions of the Land Acquisition (Public Purposes) Ordinance, back then Chapter 136 of the Laws of Malta. The portion of land was a part of 15,750 sq. m. of land which would eventually be purchased by the applicant company three years later.
4. According to the applicant company it had not been aware that part of the property it purchased was subject to such a declaration. Indeed, no mention of this was made in the relevant notarial deed transferring the property.
5. At the time no ‘notice to treat’ (an official notice offering compensation, without which no challenge or other action could ensue) was issued by the Government, that remained inactive for the subsequent decades. The law at the time (Chapter 88 of the Laws of Malta) did not provide for any ordinary avenue allowing the applicant company to seek compensation (see paragraph 28 below) and thus the deed of transfer of ownership to the Government was never signed.
6. Part of the land measuring 5,474.5 sq. m. (subject to the declaration no. 650) was used, namely, on a piece of land measuring 2,250 sq. m. the Government built a reservoir and adjacent road; on a piece of land measuring 478 sq. m. the Government built a water culvert; then, according to the parties, on a portion of land measuring 1,703 sq. m. other roads were built (see, however, paragraphs 37 and 38 below).
7. Part of the land measuring 5,474.5 sq. m. (subject to the declaration no. 650) having remained unused, the applicant company asked for its return. Some parts of the land were declared as released back to its owners by means of Presidential Declaration no. 305, published in the Government Gazette of 28 April 1987, which declared that a plot of land measuring 1,275 sq. m. and a plot of land measuring 1,949.5 sq. m. (i.e. all the land which had been expropriated apart from the part of the land measuring 2,250 sq. m. which had been used as a reservoir and adjacent road) were no longer required for a public purpose and were thus being released.
8. Nevertheless, while the plot of land measuring 1,275 sq. m. was, in fact, released in its entirety and no contestation or claims arise in that regard, the majority of the plot of land measuring 1,949.5 sq. m. which was also meant to be released, was not physically released as it had been used for the water culvert and the building of roads. Only 246 sq. m. of that latter portion had been left vacant, returned, and eventually sold by the owners.
9. In August 2016 the applicant company instituted constitutional redress proceedings complaining, under Article 1 of Protocol No. 1 to the Convention, of a breach of its property rights, and under Article 6 of the Convention particularly about the delays in the procedures (see paragraphs 15 et seq., below).
10. Pending the constitutional redress proceedings, on 25 April 2017, the Government Lands Act, Chapter 573 of the Laws of Malta (hereinafter ‘Chapter 573’ or ‘the Act’) was promulgated, repealing the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta. The Act made changes to the applicable compensation and relevant interest in relation to expropriations and provided an ordinary avenue to claim compensation. It also made transfers of property to the Government, by absolute purchase, immediate. According to parliamentary debates of 3 April 2017, this law had been put forward to right previous wrongs which had been the subject of various judgments of the domestic courts, as well as of international courts.
11. Also, during the constitutional redress proceedings, and following the change in law, the Government “re-expropriated” the portion of land measuring 478 sq. m., which had been used for building a water culvert (despite it having been supposedly released). This was done by means of a Declaration of the Lands Authority dated 23 November 2018, which was published in the Government Gazette as notice no. 1385. The Government offered 22,447 euros (EUR) for this portion of land according to the State architect’s valuation.
12. Subsequently, always pending the constitutional redress proceedings, on 7 March 2019, the Government “re-expropriated” on the basis of article 44 of the Act the portion of land measuring 2,250 sq. m. which had been used for the construction of a reservoir. This was done by means of a Declaration of the Lands Authority, which was published in the Government Gazette as notice no. 323. The Government offered EUR 2,317.50 for this portion of land in terms of article 44 and 64 of Chapter 573 (based on its value in 1977 updated by the index of inflation according to the State’s architect valuation).
13. Challenges to the low amounts offered under the new law for these two portions of land were lodged by the applicant company within the time-limit set by the new law and are currently still pending (see paragraphs 22 et seq., below).
14. The Government issued no new declaration in respect of the portion of land which had been declared released but in practice used to make roads.
15. On 3 August 2016, the applicant company instituted proceedings before the First Hall, Civil Court (in its constitutional competence) (hereinafter ‘FHCC’). It complained of the entire circumstances of the case over the years and the then current state of affairs, inter alia, under Article 6 and Article 1 of Protocol No. 1 to the Convention, that it had not yet received compensation for the taking of its land in 1977. It also complained that although part of the land was released, a part of the same land continued to be occupied by the Government despite such release. It asked the court to redress those violations by awarding compensation for those violations, including an award of compensation for the use of such land until 2016 (date of the lodging of the proceedings), and to order the speedy determination of the sums due for the expropriation of such land in line with the law or alternatively to award this compensation itself, as well as to issue any other order or award any other fair compensation it deemed fit.
16. By means of a judgment of 8 July 2020, the FHCC, satisfied that the applicant company had title to the property and was therefore entitled to complain under Article 1 of Protocol No. 1, decided on these claims as follows.
17. Bearing in mind the provisions of the new Chapter 573, it noted that the Land Arbitration Board (hereinafter ‘the LAB’) could award both moral and material damage due to the delay in finalising the expropriation and the “loss of value increase”, and was therefore an effective and available remedy, even though it could not award interest in the circumstances of this case (the latter being applicable only in relation to the circumstances provided under articles 64 and 65 of Chapter 573, not its article 44 applicable in the present case). It considered that it was not for it to decide whether the new law was disadvantageous for the applicant. Thus, as regards the taking of the portion of land measuring 2,250 sq. m. it found that the applicant company had an ordinary remedy available to it under the newly enacted Chapter 573. The same conclusion was reached as regards the taking of the “portion of land which had been released and part of it re-expropriated” but only as from 2018 onwards, the date when the part measuring 478 sq. m. was re-expropriated. It therefore declined to exercise its powers under the Constitution in that respect and directed the applicant company to continue pursuing the ordinary remedies available (under the new law) which it had lodged and were pending. In the context of this complaint[1] the FHCC considered that if the applicant company was of the view that other land had been taken to use roads it could undertake the procedure under article 67 of Chapter 573, and thus an effective remedy in that respect also existed.
18. Bearing in mind that the LAB had the competence to consider the delay in the proceedings for the purposes of awarding compensation, the court decided that it would not consider the length of proceedings complaint under Article 6 of the Convention, which claim would therefore remain unprejudiced pending the determination of those proceedings.
19. It, however, found that, even though when the applicant company bought the entire property it had been aware that some of it had been expropriated, there had been a violation of Article 1 of Protocol No. 1 in respect of the applicant company’s loss of use of the land measuring 478 sq. m. used for the water culvert from 1988 (when it was built) until 2018 (when it was expropriated), holding that during that time the land had been in the Government’s possession abusively and that situation could not be remedied under Chapter 573. On the basis of the applicant company’s expert valuation, it awarded EUR 50,000 in pecuniary damage and EUR 15,000 in non-pecuniary damage. In awarding compensation, it considered the value of the land, the delay until the Government took any action, that no compensation had yet been paid, the duration of the interference, the public interest at stake, and the lack of any explanation for the inaction of the authorities.
20. Both parties appealed to the Constitutional Court. The applicant company argued that when it instituted the constitutional redress proceedings no ordinary remedy existed, and in any event that the new remedy was not effective as it had changed the method of calculation of compensation. Moreover, forty years had passed since the original expropriation. The FHCC had also ignored that part of the land (other than the part measuring 478 sq. m.) had been retained by Government despite it having been declared as released. It asked the Constitutional Court to uphold the violations complained of and award compensation for all the land that had been taken.
21. By means of a judgment of 25 February 2021, the Constitutional Court rejected both appeals and confirmed the judgment of the FHCC in its entirety. Citing ECtHR case law concerning new remedies introduced while proceedings were pending before the Court, it considered that the first court had been correct to consider that the applicant company should pursue the new remedy. Holding that it could not determine the remedy’s effectiveness in the absence of any concrete examples, the provisions of the new Chapter 573 appeared, at least prima facie and in the abstract, to be applicable to the applicant company’s situation and could offer comprehensive redress for its complaints given that the applicant company had the opportunity to challenge the amount of compensation offered by the Government, as well as the amount of interest payable on the value of the land, and request material and moral damage due to the delay in finalising the expropriation, inclusive of interest on the final award. A decision by the LAB was further amenable to appeal. The applicant company had chosen to pursue those proceedings in relation to the land which had been re-expropriated and if it were not to be satisfied with their outcome it could once again lodge constitutional redress proceedings complaining that those proceedings did not constitute an effective remedy. The same reasoning held in relation to the Article 6 complaint. The Constitutional Court thus considered that no compensation could be awarded in relation to the aspects of the complaint which had not been taken cognisance of by the FHCC due to its finding of non-exhaustion of ordinary remedies, an assessment it confirmed, and there was no reason to vary the amount awarded by the FHCC in relation to the loss of use of the property measuring 478 sq. m. for more than twenty years due to the abusive actions of the authority.
22. Pending the constitutional redress proceedings, following the re-expropriations mentioned above (see paragraphs 11 and 12 above), and within the twenty day time-limit provided in the new law, the applicant company instituted ordinary proceedings before the LAB to challenge the compensation offered by the Government, in terms of the Act. It however asked the LAB to suspend the proceedings until the outcome of the, then pending, constitutional redress proceedings.
23. The first set of proceedings were instituted on 18 April 2019[2] and concerned the land measuring 478 sq. m. The applicant company argued that the sum of compensation offered by the Government for the taking of the land (EUR 22,447) was too low and that the amount of compensation should not be lower than EUR 956,000 as per its architect’s valuation. It therefore asked the LAB to fix a fair sum of compensation for the taking, and to order the defendant authority to pay material and moral damage.
24. Similarly, the applicant company instituted a second set of proceedings before the LAB on 31 May 2019[3] concerning the land measuring 2,250 sq. m. for which the Government had offered the sum of EUR 2,317.50 and asked that compensation for the expropriation be fixed at not lower than EUR 4,500,000. The applicant company also asked the LAB to award it material and moral damage suffered for the years during which the land had been held without a valid title, plus interest.
25. Both of these sets of proceedings had been stayed, on the request by the applicant company, until the conclusion of the constitutional redress proceedings (see paragraph 22 above). Following the Constitutional Court judgment of 25 February 2021, the proceedings were resumed and joined. The LAB-appointed architects (periti tekniċi) valued the land measuring 478 sq. m. at EUR 573,000 in November 2018 and that measuring 2,250 sq. m. at EUR 2,700,000 in 2019, amounting to 40% of its market value bearing in mind the use made of the land. The defendant authority argued that the fair price was that which had been offered and that no further material damage was due, as the law did not provide for material damage for abusive occupation, but only for unreasonable delay in acquiring the property, but no such delay existed in the present cases.
26. The proceedings were at the time of observations before this Court (2023) still pending at first instance. The Court has not been informed of any developments since then, but it appears from the domestic online portal that the proceedings are still pending at first instance.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
27. The relevant articles of the Government Lands Act, Chapter 573 of the Laws of Malta, which entered into force on 25 April 2017, in so far as relevant reads as follows.
Article 36
“(1) The authority may acquire any land required for any public purpose, either:
(a) by the absolute purchase thereof; or
(b) for the possession and use thereof for not more than ten years.
...”
Article 38
“(1) The Chairperson of the Board of Governors of the Lands Authority may by Declaration signed by him declare any land to be required for a public purpose.
(2) Any Declaration issued by the Governor General of Malta or by the President of Malta before the entry into force of this Act shall for all the purposes and effects of the law be considered to have been issued by the authority.”
Article 39
“(1) The signed Declaration by the Chairperson of the Board of Governors of the Lands Authority shall be published in the Gazette and also published for at least once in two daily or Sunday local newspapers, and it shall contain well-defined details to identify the land that is being acquired for public purposes and it shall also mention the public purpose for which such land is being required.
(2) The Declaration shall also state the amount of compensation which the authority is willing to pay for the land to which the Declaration refers. The Declaration shall have attached with it a valuation drawn up in terms of the provisions of this Act and a site plan of the land described in the Declaration.”
Article 41
“(1) Any person who has an interest in the land, in respect of which a Declaration by the Chairperson of the Board of Governors of the Lands Authority as is referred to in article 38 (1) is made, may contest the public purpose of the said Declaration and demand for its cancellation before the Arbitration Board by means of an application to be filed in the registry of the said Board within fifty days from the publication of the said Declaration.
(2) The application filed in accordance to [recte with] sub-article (1) shall be served to the authority, who has a right to submit a reply within twenty days.
(3) The Arbitration Board shall set down the application for hearing without delay, and after listening to the witnesses and the submissions of the parties, it shall pass judgment within the shortest time possible but not any later than two months from the closing date within which the authority had to file its reply.”
Article 42
“(1) Any party that feels aggrieved by any decision given by the Arbitration Board in accordance with article 41 may appeal before the Court of Appeal (Superior Jurisdiction) as constituted in accordance with article 41 (1) of the Code of Organization and Civil Procedure by means of an application filed in the registry of that court within twenty days from the date of such decision.
(2) The Court of Appeal (Superior Jurisdiction) shall set down the cause for hearing at an early date, in no case later than two months from the date on which the appeal is brought before it and shall cause notice of such date to be given to the parties to the suit who, on their part, shall assume the responsibility to visit the court registry and be aware of the latest information regarding the appointment for the hearing of the case.
(3) After appointing the application for hearing, and after listening to the oral submissions made by all parties, the Court shall decide the application on its merits, within the shortest time possible but not any later than six months from the day when the appeal had been filed and the parties have been duly notified.”
Article 43
“The Chairperson of the Board of Governors of the Lands Authority may at any time revoke any Declaration issued under this Act or before by means of a notice in the Gazette and at least once in two daily or Sunday local newspapers, provided that any revocation shall be registered with the Land Registry and the Public Registry.”
Article 44
“(1) If a Declaration for expropriation was issued without indicating the compensation being offered for that land, the Chairperson of the Board of Governors of the Lands Authority may issue a fresh Declaration wherein it shall be stated the amount of compensation which the competent authority is willing to pay for the land to which the Declaration refers.
(2) This new 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.
(3) If a fresh Declaration is issued the value and classification of such land shall be determined on the basis of the value and classification of such land on the date when the first Declaration has been issued.
(4) The provisions of articles 52, 53, 54 and 55 shall apply to all fresh Declarations issued by operation of this article.”
Article 49
“Any land which is not a building site shall be valued for the purpose of determining the compensation payable in the case of compulsory acquisition, as the case may be.”
Article 50
“(1) Land shall be deemed to be a building site for the purposes of this Act if it falls within the limits of a building scheme or as indicated and approved for development in a Spatial Strategy for Environment and Development or subsidiary plan which has been adopted for the time being in force under any law relating to planning.
(2) The compensation due for that building site, shall be calculated in accordance with the provisions of this Act.”
Article 52
“(1) The authority shall deposit in an interest-bearing bank account which will guarantee a minimum of interest per annum as the Minister may by regulation under this sub-article prescribe, a sum equal to the amount of compensation offered in the Declaration drawn up by the chairperson of the Board of Governors of the Lands Authority.
(2) If there is no contestation as referred to in article 41, the deposit referred to in sub‑article (1) shall be made within a period of fifteen days running from when the time for contesting the Declaration has elapsed. If there is a contestation which is then dismissed, the fifteen-day period starts running from when the decision of the Arbitration Board or the Court of Appeal (Superior Jurisdiction) has become res judicata.
(3) Whosoever satisfies the Arbitration Board that he is an owner of that land by virtue of a valid title may request for the Board’s authorization to withdraw the deposited sum as referred to in this article, together with the interest accrued thereon.
(4) This action shall be done by means of an application filed in the registry of the Arbitration Board which shall be addressed against the authority who shall have a right of reply within twenty days from when it has been served with the application.
(5) The amount deposited as provided in this article together with any interests accruing thereon may be withdrawn 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 Act for the purpose of determining any further compensation that may be payable to him in accordance with this Act.”
Article 53
“Upon making the deposit as referred to in the previous article, 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 Registration Act and the absolute ownership thereof shall, by virtue of this Act and without any further assurance or formality, be transferred to and be acquired by the Government free and unencumbered from any charge, hypothec or privilege and the absolute ownership thereof and the authority shall cause such land to be registered in the Public Registry and in the Lands Registry in its name in accordance with the Land Registration Act, provided that this shall be done within a period of three months from when the deposit has been done.”
Article 54
“The right to withdraw the compensation deposited in accordance with this article and to any further compensation that may be due for the purposes of this Act (hereinafter referred to as “the compensation rights”) shall be deemed to be an immovable right by reason of the object to which it refers and shall be transferable accordingly. Any charge, hypothec or privilege which prior to the acquisition of the land by the authority, shall continue to attach to the compensation rights with the same ranking and priority as it attached to the land.”
Article 55
“(1) When an owner feels that the amount of compensation offered to him by means of a Declaration is not appropriate, such person may apply to the Arbitration Board for the determination of the compensation in accordance with the provisions of this Act.
(2) Such application shall, on pain of nullity, state the compensation, that in the opinion of the applicant is due and it shall be served to the authority who shall have twenty days to file a reply.
(3) The application shall be filed by not later than five years from when the Declaration by the chairperson of the Board of Governors of the Lands Authority has been published as referred to in article 39(1) and (2), provided that if such an application is not filed, the owner shall only have the right over the deposited sums and the interests mentioned in article 52.
(4) The Arbitration Board shall determine such compensation and shall give all necessary orders and directives in accordance with this Act, if it is satisfied that the applicant has proved that he has a valid title on that land.”
Article 58
“(1) The Arbitration Board shall be competent:
(a) to order immediate possession of any land to be given to the competent authority;
(b) to order the transfer of any land to the competent authority in absolute ownership;
(c) to order the subjection of land to any easement;
(d) to assess the amount of compensation payable under any of the provisions of this Act and for this purpose to declare whether any area is a building site or not, provided that the amount of compensation that shall be determined by the Board does not exceed the highest amount of compensation that has been proposed by any one of the parties;
(e) to order that the Declaration of expropriation be revoked;
(f) to order that the land be returned to the owner;
(g) to liquidate and pay moral and material damages;
(h) to decide on issues related to interest;
(i) to determine who is the owner or who has a title on a land that has been subject to the Declaration or that has been occupied by the Government without the issuance of such Declaration;
(j) to determine the date when the Government possessed such land;
(k) to call upon persons to enter into proceedings for the purpose of establishing who is the owner or who has a title on the land that has been subject to the Declaration which has been occupied by the Government without the issuance of such Declaration; and
(l) to order the execution of its decisions.
(2) The Arbitration Board has the same powers as are by law vested in the Civil Court, First Hall, and subject to the provisions of this Act the provisions in the Code of Organization and Civil Procedure shall, as far as practicable, be applicable to the Arbitration Board.
...”
Article 61
“(1) The Arbitration Board shall, upon establishing the compensation for absolute purchase, 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 could acquire if sold in the open market by a willing seller voluntarily;
(c) the value of the land is the value that the land has within the period of publication of the Declaration as updated during the years in accordance to the index of inflation published in the schedule of the Housing (Decontrol) Ordinance, and without regard to any improvements or works done by a competent authority;
...
(3) Besides the accrued interests on the sum deposited in accordance with article 52(1), the Arbitration Board may order in its decision that the owner receives simple interest at the rate of eight per centum per annum over the final compensation liquidated by the Board, which interest shall start running from when the owner files his application in terms of article 55.”
Article 62
“Where the compensation payable in respect of land acquired by the absolute purchase thereof is determined, whether by agreement or by decision of the Arbitration Board, any sum due as compensation over and above any sum deposited together with the interest, shall be paid to the person entitled thereto by the Lands Authority not later than three months from the date on which such compensation was determined as aforesaid.”
Article 64
“(1) When land is subject to a Declaration which has been issued before the entry into force of this Act and such land is in possession of Government without having issued any notice to treat or without having indicated the compensation offered for its acquisition, anyone who proves to the satisfaction of the Arbitration Board that he is the owner of the land by valid title may demand that the competent authority acquires the land by absolute purchase.
(2) This action shall be done by means of an application filed before the Registry of the Arbitration Board that shall be addressed against the authority who shall have a right of reply within twenty days from when it has been served with the application.
(3) The compensation that shall be paid for the acquisition of the land shall be the value that the land has within the period of publication of the Declaration as updated during the years in accordance to the index of inflation published in the schedule of the Housing (Decontrol) Ordinance.
(4) Apart from the compensation for the acquisition of the land as established in this article, the owner can also make a request to the Arbitration Board to liquidate and order the authority to pay him for material damages and moral damages due to the excessive delay for such acquisition.
(5) The peremptory period referred to in article 63(6) for filing such action shall apply mutatis mutandis to the action under this article.”
Article 66
“(1) In the cases referred to in articles 64 and 65, the owner also has the right to receive interest with the simple rate of eight per cent on the compensation that has been established by the Arbitration Board as updated during the years in accordance to the index of inflation published in the schedule of the Housing (Decontrol) Ordinance and this interest shall start accruing from the date when the Declaration has been published.
(2) If there is a contestation between the owner and the Lands Authority regarding the interest that shall be paid, the owner shall file an application so that the issue would be resolved by the Arbitration Board. This application shall be filed till not later than six months from when the contract of transferring the land has been paid by the parties or from when the decision of the Board become res judicata.
(3) This application shall be served to the authority who shall have a right to reply within twenty days.
(4) The Arbitration Board shall decide the issue within a peremptory period of not longer than six months from when the application has been served to the authority.”
Article 67
“(1) When land not subject to a Declaration is occupied or administered by a competent authority, anyone who proves to the satisfaction of the Arbitration Board that he is owner of the land by valid title may either request that the land be acquired by absolute purchase by the Lands Authority or else that the land be relinquished free and unencumbered from any occupation.
(2) This action shall be done by means of an application filed in the Registry of the Arbitration Board which shall be addressed against the authority who shall have a right of reply within twenty days from when it has been served with the application.
(3) The authority shall indicate in its reply whether the Government wants to acquire the land with absolute purchase or else return the land to the owner.
(4) Should the authority indicate in its reply that it wants to acquire the land by absolute purchase it shall prove to the satisfaction of the Board that the land is required for public purposes.
(5) Should the Arbitration Board be satisfied that the land is required for public purpose, it shall fix a period of time within which the owner and the authority have to declare the amount of compensation which should be paid for the transfer of the land.
(6) If the parties disagree on the compensation to be paid, it shall be for the Arbitration Board to determine the fair compensation for the transfer of the land, provided that the compensation cannot be higher than the amount indicated by the owner or lower than the amount indicated by the authority.
(7) The value of the land shall be taken to be the amount which the land if sold by a willing seller might be expected to realize and shall be calculated on the value of the land at the time when the application was filed in terms of this article.
(8) In combination with the demands for purchase or relinquishment of the land, one can make a request so that the Arbitration Board liquidates and orders the authority to pay for material damages and moral damages that have been suffered by the owner for all the years that the land has been occupied without any issuance of the Declaration.
(9) Everyone shall forfeit his right of action in accordance with this article if he fails to proceed within five years from the entry into force of this Act. This period is peremptory and cannot be renewed.”
Article 74
“(1) Any party that feels aggrieved by any decision given by the Arbitration Board in accordance with this Act may appeal before the Court of Appeal (Superior Jurisdiction).
(2) The appeal shall be filed by means of an application before the Court of Appeal (Superior Jurisdiction) within twenty days from such decision; and the party against whom the appeal is filed may file his reply within twenty days from the date of service upon him of the said application.
(3) The Court of Appeal (Superior Jurisdiction) shall set down the cause for hearing at an early date, in no case later than two months from the date on which the appeal is brought before it and shall cause notice of such date to be given to the parties to the suit who, on their part, shall assume the responsibility to visit the court registry and be aware of the latest information regarding the appointment for the hearing of the case.
(4) After appointing the application for hearing, and after listening to the oral submissions made by all parties, the Court of Appeal (Superior Jurisdiction) shall decide the application on its merits, within the shortest time possible but not any later than six months from the day when the appeal had been filed and the parties have been duly notified.”
28. The procedure for expropriations according to the law, prior to amendments in 2002, was as follows:
i) a presidential declaration was published according to law;
ii) within fourteen days the State had the right to take physical possession of the law;
iii) a ‘notice to treat’ was to be issued whereby the State offered compensation;
iv) if the owner did not agree with the offer an objection was to be raised by means of an official letter, within twenty-one days of the offer;
v) On receipt of the objection it was for the Commissioner for Land to institute proceedings before the LAB to have the compensation determined (no time-limit applied).
29. The case of Deguara Caruana Gatto vs Kummissarju tal-Artijiet, decided by the Constitutional Court on 12 January 2023, concerned the expropriation of various properties by means of presidential declarations between 1975 and 1989. However, no notice to treat offering compensation had been issued. Following the owner’s request, the domestic courts on 15 July 2014 ordered the State to offer compensation within thirty days of that decision, however, the Government remained inactive. In 2016 the owners filed constitutional redress proceedings complaining about their property rights and unreasonable delays in the expropriation procedure and, while the proceedings were pending, the Government enacted Chapter 573 and then decided to issue fresh expropriation declarations in which an amount of compensation was offered to the owners. At that point, the owners had the possibility of contesting the offers before the LAB but instead they requested and authorised the constitutional jurisdictions to award the compensation themselves. The Constitutional Court decided that it would continue to hear the constitutional claim, and, on the merits, it found a violation of both invoked provisions and then proceeded to award compensation due for the breach of fundamental rights as well as for the taking of the land, despite the fact that proceedings before LAB could have been brought forward following the introduction of Chapter 573. It further awarded compensation for the breach of the claimants’ legitimate expectation (created by the decision of 15 July 2014) to have the compensation calculated according to the old law.
30. The case of Reverendu Dun Gwann Farrugia vs L-Awtorita’ tal-Artijiet, concerned an owner who had claimed that in 2011 his land measuring 330 sq. m. had been taken for the purpose of building a road, which was eventually developed by Transport Malta (a government body). Considering that it had been occupied and administered by a public authority and used for a public purpose despite never being expropriated, the owner relied on article 67 of Chapter 573 to ensure that the land be acquired by absolute purchase by the Land Authority. The Land Authority argued that it had never received a request by Transport Malta for this land to be expropriated so to build a road, it could therefore not be said that it had been taken for a public purpose by the authorities, and thus it could not be expropriated by the State, indeed it could have been developed by other individuals.
31. The LAB in its judgment had considered that there had been no doubt that the land was ‘administered’ by a ‘competent authority’ and needed for a public purpose, and thus fell within the parameters of article 67 (1) of Chapter 573. However, the Court of Appeal overturned that decision by means of a judgment of 9 February 2023 considering that the owner had not shown that the road had been built by the Government as opposed to private individuals. The evidence in the case file indicated that the likelihood was that it had been developed by private individuals for them to have access to their adjacent properties as obliged by law. When a private individual undertook such action, despite the road being used by the general public, it did not mean that the land was required for a public purpose and thus that it should be expropriated. The mere fact that it was asphalted by the authorities did not mean that it was occupied or administered by the authorities, and the owners maintained their title to the land. It could however amount to a control of use of property. In those circumstances it could not be said whether article 67 applied to the case, the Court of Appeal thus remitted the case to the LAB for the factual circumstances to be determined.
32. By a further judgment of the LAB of 15 July 2024, having established that part of the roads were developed by individuals according to law, but that a portion of 317 sq. m. was administered by the authority and required for a public purpose, it ordered the State to proceed with acquiring it by absolute purchase and to make an offer for compensation within three months (article 67 (5) of Chapter 573).
33. In the case Joseph Abela et vs Awtorità tal-Artijiet of 12 October 2022 the LAB decided that the compensation for the transfer of a portion of land measuring 177 sq. m., which had been taken over by the State in 1988 but no declaration had ever been issued, and was used to construct roads, was to be EUR 212,400 (its value in 2019 according to the LAB-appointed architects) and fixed a date for the publication of the relative public deed; it further awarded EUR 195,278.64 in material damage (for the abusive occupation over the years) and EUR 8,500 in moral damage;
34. In the case Pierre Chircop vs Awtorità tal-Artijiet of 22 June 2022 the LAB fixed the amount of compensation for the transfer of a portion of land measuring around 268 sq. m. which had been taken over by the State in 2017 but no declaration had ever been issued, and was used to construct roads, at EUR 133,186.64 (its value in 2018 according to the Land Authority’s experts, which was higher than that of the LAB-appointed architects) and awarded EUR 28,206.37 in material damage (for the abusive occupation over the years) and EUR 500 in moral damage given the limited duration of the delay.
COMPLAINTS
35. The applicant company complained under Article 6 § 1 of the Convention and under Article 1 of Protocol No. 1 to the Convention that it had not yet received any compensation.
THE LAW
36. The Court observes that the complaints communicated to the Government were those under Article 6 and under Article 1 of Protocol No. 1 to the Convention concerning the permanent taking of the three portions of land for which no compensation had yet been paid. The remainder of the application, including the part concerning the compensation awarded by the Constitutional Court for the loss of use of the property measuring 478 sq. m. from 1988-2018, was declared inadmissible by the President of the Section acting in a Single Judge formation at communication stage and thus falls out of the scope of this case, and no reference will be made to any submissions in that regard. Similarly, in so far as the applicant company made a reference to it in its observations, the Court notes that, in its application the applicant company had not complained about the lack of compensation for the loss of use of the property measuring 478 sq. m. from 1977-87. Therefore, that situation also falls outside of the scope of this case and no reference will be made to any related submissions. Moreover, were it to be considered as a novel complaint raised for the first time in their observations dated November 2023, the latter complaint would be inadmissible, if not for any other reason, as being lodged out of time.
37. The Court observes that both parties refer to a piece of land measuring 1,703 sq. m. as being used for making roads, however this does not appear to be correct. As stated by the parties, by means of declaration no. 305 the Government declared 1,949.5 sq. m. to be released (see paragraph 7 above), the majority of that portion of land (i.e. 1,703 sq. m. after deducting the 246 sq. m. which had been left vacant) had been used to build both the water culvert and roads. Since 478 sq. m. had been used for the water culvert only 1,225.5 sq. m. could have been used to make roads.
38. The Court notes that while the domestic courts did not enter into the size of the land used to make roads, the conclusion reached above is also supported by the following mathematical calculation. It is not contested that:
5,474.5 sq. m. of land were expropriated by the Government in 1977;
2,250 sq. m. were used to build a reservoir and adjacent road;
1,275 sq. m. were legally and physically released and given back to the applicants and no contestation arises in that regard;
478 sq. m were used to build a water culvert;
246 sq. m. were returned to the applicant company and eventually sold.
It follows that only the remaining 1,225.5 sq. m., could have been used to make roads. Had it been otherwise (i.e. that 1,703 sq. m. were used to make roads as stated by the parties) the total sum would exceed the 5,474.5 sq. m. originally expropriated, precisely by 478 sq. m.
39. Relying on Article 1 of Protocol No.1 to the Convention and Article 6 § 1 of the Convention, the applicant company complained that although its land had been expropriated in 1977, forty-five years later it had not yet received any compensation for the expropriation, and it was being required to undergo new procedures which in its view were ineffective. The relevant provisions, in so far as relevant, 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 ...”
(a) The Government
40. The Government submitted that the entirety of the application was inadmissible for non-exhaustion of domestic remedies, referring to the provision of Chapter 573 (‘the Act’).
41. In respect of the portions of land measuring 2,250 sq. m. and 478 sq. m., originally expropriated in 1977 and re-expropriated in 2019 and 2018 respectively, the applicant company had challenged (under article 55 of the Act) the compensation offered by the Government and proceedings were pending before the LAB which had to be considered as an effective remedy. According to article 55(4) of the Act, the LAB “shall” determine the compensation and give all necessary orders and directives in accordance with the Act, if it is satisfied that the applicant had proved a valid title on that land. As to the adequacy of compensation, where a fresh declaration has been issued under Chapter 573, as happened in respect of these two portions of land “the value and classification of such land shall be determined on the basis of the value and classification of such land on the date when the first Declaration had been issued” (see article 44(3) of the Act). This, in their view, was in line with the Court’s case-law concerning compensation due in expropriation cases, as for example Scerri v. Malta (no. 36318/18, § 50, 7 July 2020), noting that it remained important however to offset the effects of inflation over the time. Indeed, they submitted that the LAB is empowered, under the Act, to assess the amount of compensation payable (article 58(1)(d) of the Act), to liquidate and order the payment of moral and material damage (article 58(1)(g)), and to decide on issues relating to interest (article 58(1)(h) of the Act). Moreover, article 61(1)(b) of the Act gave the LAB further direction on the establishment of compensation for absolute purchase, including that the value of the land be taken to be the amount which the land could acquire if sold on the open market by a willing seller voluntarily and thus no deduction was to be made despite the pursuance of a public interest. During such time as proceedings were ongoing, under article 52 of the Act, the Lands Authority must deposit the sum offered in an interest-bearing bank account and the owner of the land may withdraw the same money by authorisation of the LAB. Should the applicant company be unhappy with the outcome of these ordinary proceedings it could once again lodge constitutional redress proceedings and if necessary, a further application before the Court.
42. In respect of the portion of land measuring 1,703 sq.m. [recte 1,225.5 sq. m. (see paragraph 38 above)] which continued to be used by the Government despite it having being released in 1987, and for which the applicant company has not been compensated, the Government relied on article 67 of the Act. The latter provided that if land is occupied by the Government but was not subject to a declaration, the owner may file an action before the LAB asking that the Government either acquire the land by absolute purchase or relinquish the land free and unencumbered from any occupation. If the competent authority responds that the Government wishes to purchase the land for a public purpose, and the parties do not reach an agreement in relation to compensation within a time frame set by the LAB, then the LAB must determine the compensation to be paid to the owner, provided that it is satisfied that the land is, indeed, required for a public purpose. In such a case, the value of the land “shall be taken to be the amount which the land if sold by a willing seller might be expected to realize and shall be calculated on the value of the land at the time when the application was filed in terms of this article” (article 67(7) of the Act). The Government may also be ordered to pay for material and moral damage suffered by the owner “for all the years that the land has been occupied without issuance of the Declaration” (article 67(8) of the Act). The Government submitted two examples in support of their claim that the remedy was effective (see paragraphs 33 and 34 above). The Government further noted that, the applicant company not having pursued this action within the time frame stipulated by law, it became time-barred by the lapse of five years from the coming into force of the Act. The applicant company had thus failed to exhaust domestic remedies through its own inaction.
43. To a specific question put by the Court, the Government replied that they were not in a position to “submit precise information as to the number of outstanding expropriation declarations, at the national level, in respect of which no compensation had yet been paid at the time of the enactment of Chapter 573 in 2017, and how many of those cases have [had] been finally determined, via the new procedure”. They submitted that there were expropriation declarations which went as far back as the 1950s, which had not been settled to date for a variety of reasons. However, at the time, no proper records and statistics were kept. In relation to the data submitted by the applicant company (see paragraph 54 below) the Government considered that the figures showed the success of the remedy, noting that very few first‑instance decisions had been appealed.
44. In so far as the complaint under Article 6 was concerned, the Government submitted that the applicant had not raised the issue of access to court before the constitutional proceedings but solely one of length of proceedings, and the latter could also be compensated in the context of the LAB proceedings.
(b) The applicant company
45. The applicant company submitted that the remedies referred to by the Government had been introduced after its claim for redress based on a breach of its fundamental rights had been lodged before the courts of constitutional competence. At that time (2016) its claim had been legitimate as no other remedy was available at the national level.
46. It further noted that the LAB could not find a breach of fundamental human rights but solely award compensation; it could thus not remove its victim status. It was of the view that the enactment of new legislation in 2017 could not suddenly erase the existence of a violation which had persisted over decades. This was so especially if the remedy introduced by that new legislation was such that it required further lengthy court proceedings, in so far as the decision of the LAB was also amenable to appeal, as well as to a further constitutional challenge should the award be inadequate. Such protracted proceedings only continued to worsen the ongoing violation of their property rights and to their right to have proceedings determined within a reasonable time. In its view it should have been the constitutional courts to determine its claims as it had done in other cases (see paragraph 29 above). The applicant company had therefore exhausted domestic remedies, and this Court was not prevented from deciding the case on the merits, noting that it had already examined cases of this nature where proceedings were still pending before the LAB forty years after the expropriation and awarded compensation itself, as for example in Azzopardi v. Malta (no. 28177/12, §§ 36 and 64, 6 November 2014).
47. However, the applicant company feared that were the Court to award just satisfaction in the present case, it ran the risk of being short changed, particularly when it came to the calculation of interest. Therefore, it asked the Court to find the relevant violations, but not to establish the compensation concerning the parts of the land which were already subject to ongoing proceedings before the LAB. It explained that it had been compelled to institute the proceedings before the LAB once new expropriation declarations had been issued, otherwise it would have been considered that it accepted those derisory sums. It had also been compelled to bring proceedings before this Court, while the proceedings before the LAB were still pending, to conform to the four-month time-limit from the Constitutional Court judgment, which according to the Court’s case-law amounted to the final domestic decision for the purposes of Article 35 § 1.
48. The applicant company, moreover, considered that the new remedy provided under Chapter 573 could not be considered effective in so far as it introduced a new mechanism for compensating owners and did away with the provisions regulating compensation under Chapter 88, which were applicable in 1977 at the time when the original expropriation took place, and at the time when the applicant company had instituted constitutional redress proceedings. The applicant company noted that the new mechanism yielded a smaller sum by way of compensation when compared to what the owner would have been entitled to under Chapter 88 (see paragraph 29 in fine above).
49. Furthermore, despite the Government’s argument before this Court that moral and material damage could be awarded by the LAB, the defendant authority was arguing the contrary at the domestic level (see paragraph 25 above). Indeed, article 55 of the Act (applicable in the case of the re-expropriated land i.e. subject to a fresh declaration) did not explicitly provide for such types of damage (unlike articles 64 and 65 which applied, respectively, where no ‘notice to treat’ had ever been issued, or where an expropriation and notice to treat had been issued but under Chapter 88, and no fresh declarations had ever been issued). There was therefore no guarantee that the LAB would award appropriate compensation and thus that this remedy would be effective.
50. They also noted that in relation to the re-expropriated land, this remedy could not cover the period prior to 2018/2019, as, in their view, had been stated by the Constitutional Court.
51. In relation to the part of the land which had not been re-expropriated and had been used to make roads, the Government had relied on article 67 of Chapter 573. However, the applicant company noted that this involved a very short time-limit of five years (which moreover was being challenged at the domestic level by others in similar positions) and it was introduced in the middle of ongoing proceedings so that the applicant company was granted a relatively short time period for filing any claims it considered it might have under Chapter 573, all while having to deal with the ongoing constitutional proceedings concerning the same land. Thus, the alleged remedy was neither fair nor adequate and should not be used by the Government to eliminate the applicant company’s right of action. This was so particularly given that the applicant company had legitimately exercised its right of action in 2016, which had been frustrated by the Government’s legislative interference pending proceedings. Moreover, given that this five-year term was not couched in the sense of allowing for acquisitive prescription, at the expiry of those five years the issue was not solved as the land owned by the applicant company would anyhow not be transferred to the State.
52. Without prejudice to the above, article 67 of the Act referred to land which was “occupied or administered by a competent authority”. In the present case, however, it was not immediately apparent that the land was and is occupied or administered by any entity given that the land was taken for the formation of roads and then formally released (but not in practice). Likewise, it was not clear who the competent authority would be in this case. The applicant company has no information as to which authority opened the roads in question. There had already been cases of the like before the domestic courts with the Land Authority very often claiming that if no request for an expropriation had been made to it by the authority responsible for transport, then it would not be bound to acquire the land. There had also been judgments which stated that simply because a road had been asphalted by Government did not mean that it was occupied or administered by a competent authority in terms of article 67 (see paragraph 30 above). The determination of what constituted occupation and administration by a competent authority and which competent authority was responsible was therefore not clear under domestic law and it could not be said that the applicants had a clear remedy under article 67 of the Act. Moreover, in the applicant company’s view, the Constitutional Court had not stated that there had been a remedy which could be pursued in respect of the part of the land used to develop roads.
53. The applicant company further submitted that in respect of the alleged violation of Article 6, it was only the constitutional jurisdictions which could uphold such a violation and provide redress. In any event, while the Constitutional Court considered in its judgment that the applicant company had an ordinary remedy to pursue, in the operative part of the judgment it nonetheless dismissed the Article 6 claim, as opposed to refusing to take cognisance of it. The applicant company thus had a final decision in that respect, even though the merits had never been assessed. Moreover, in its view, by instructing it to pursue further proceedings the constitutional jurisdictions were only protracting the unreasonable delay, which already existed and continued to subsist, and a remedy introduced forty years later could not be considered as remedying the fact that the applicant company had had no access to court from 1977‑2017.
54. The applicant company conceded that there did not exist a sufficient body of jurisprudence, particularly of the Court of Appeal, concerning cases under the new Act. They noted, however, the Government’s lack of effort in supplying any information to the Court’s request. According to searches via the online portal of the Courts of Justice of Malta, it transpired that since the enactment of the Act, in 2017, until November 2023, 804 cases had been lodged with the LAB and while a few had been withdrawn only 34 cases had been decided at first instance, 14 of which were appealed. These figures compared to past figures, and the timing of the introduction of these cases which peaked in 2022 when the five-year time-limit mentioned above was to lapse, indicated that most of these cases dealt with expropriations under the Act, and that a substantial number of old expropriations were still unresolved. The figures also showed that most cases took more than five years to be decided at first instance, a delay which was bound to increase after the peak of cases introduced in 2022, all of which had to be decided by one adjudicator, who also sat on another busy adjudicating body.
(a) General principles
55. The purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, amongst other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights (see, for example, Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000‑XI). In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see, amongst others, Sejdovic v. Italy [GC], no. 56581/00, § 43, ECHR 2006‑II).
56. The existence of a remedy must be sufficiently certain not only in theory but also in practice, failing which it will lack the requisite accessibility and effectiveness (see, for example, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 71, 25 March 2014). To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, § 182, 28 June 2018). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see, for example, Gherghina v. Romania (dec.) [GC], no. 42219/07, § 86, 9 July 2015 and Communauté genevoise d’action syndicale (CGAS) v. Switzerland [GC], no. 21881/20, § 142, 27 November 2023).
57. The assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, the Court has held on many occasions that this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 and 7 others, § 87, ECHR 2010). Among such exceptions are situations where, following a pilot judgment in which the Court found a systemic violation of the Convention, the respondent State has introduced new or amending legislation capable of providing existing and potential victims of the systemic violation with sufficient and adequate relief at domestic level such that the Court’s further examination of similar applications is no longer justified (see, for instance, Techniki Olympiaki A.E. v. Greece (dec.), no. 40547/10, 1 October 2013; Balakchiev and Others v. Bulgaria (dec.), no. 65187/10, 18 June 2013; and Müdür Turgut and Others v. Turkey (dec.), no. 4860/09, 26 March 2013 concerning the length of proceedings; Hodžić v. Slovenia (dec.), no. 3461/08, 4 April 2017 concerning “old” foreign-currency savings, and Beshiri and Others v. Albania (dec.), no. 29026/06 and 11 others, 17 March 2020 concerning the enforcement of final decisions relating to compensation).
(b) Application of the general principles to the present case
58. The Court notes that the application was lodged with the Court after the applicant company had pursued constitutional redress proceedings. The latter is a remedy which must be exhausted before lodging an application with the Court in such type of cases (see, by implication, for example, Mifsud and Others v. Malta, no. 38770/17, § 81, 13 October 2020 and Carmelina Micallef v. Malta, no. 23264/18, § 28, 28 October 2021) and was the only remedy which had been open to the applicant company at the time when it started those proceedings. However, bearing in mind a novel ordinary remedy introduced pending those proceedings, the Constitutional Court, relying on the Court’s practice in relation to cases before it (see paragraph 57 above), considered that the applicant company should first pursue that remedy.
59. The approach of the Constitutional Court was in contrast with the approach taken in another similar case, also introduced in 2016 (see paragraph 29 above), that is at the same time when the applicant company initiated constitutional redress proceedings. The reason behind the different approaches has not been expounded upon and the Court has reservations about the appropriateness of such an approach in the present case bearing in mind that the applicant company had been deprived of its property without any compensation several decades before, and asked the Constitutional Court to determine that compensation (see paragraph 20 in fine above). This is even more so given that besides their property complaint, the applicant company had also complained under Article 6, particularly concerning delays.
60. In this connection the Court observes that it has repeatedly found violations of Article 1 of Protocol No. 1 alone and sometimes together with Article 6 (length of proceedings and access to court) against Malta concerning delays to pay compensation for property expropriated decades before (see, for example, Frendo Randon and Others v. Malta, no. 2226/10, § 71, 22 November 2011 and, more recently, B. Tagliaferro & Sons Limited and Coleiro Brothers Limited v. Malta, nos. 75225/13 and 77311/13, § 74, 11 September 2018, and Scerri v. Malta, no. 36318/18, § 55, 7 July 2020). The Court has also repeatedly found that when domestic proceedings relating to the payment of compensation have not come to an end decades after the taking of a property, it would be unreasonable to wait for the outcome of those proceedings, and thus it awarded just satisfaction itself (see, for example, Serrilli v. Italy (just satisfaction), no. 77822/01, § 17, 17 July 2008; Mason and Others v. Italy (just satisfaction), no. 43663/98, § 31, 24 July 2007; Frendo Randon and Others v. Malta (just satisfaction), no. 2226/10, § 15, 9 July 2013; Vassallo v. Malta (just satisfaction), no. 57862/09, § 13, 6 November 2012; and B. Tagliaferro & Sons Limited and Coleiro Brothers Limited, cited above, §§ 121 and 125). The Constitutional Court chose not to follow the same approach, directing the applicant company to continue pursuing the ordinary proceedings before the LAB, which it had been compelled to lodge under the new law, in relation to the two pieces of land which had been re‑expropriated, and to undertake the procedure under article 67 of Chapter 573 should the applicant company be of the view that other land had been taken to use roads (see in this respect paragraph 67 below).
61. Despite the above reservations, the Court does not consider the approach to be unreasonable. Unlike previous expropriation cases against Malta decided by this Court, it cannot be ignored that after years of repeated violations, the Maltese State has enacted new legislation which put in place a new procedure allowing applicants to claim compensation for the taking of their properties in various circumstances and that it was designed, at least in principle, to address the issue of delayed compensation for the taking of property in an effective and meaningful manner, taking account of the Convention requirements (see, mutatis mutandis, Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, § 30, 23 September 2010, and Beshiri and Others, cited above, § 217).
62. Admittedly the remedies provided by the Act were put in place only after the applicant company had started pursuing the only relevant remedy it had had at the time, and, in the absence of any transitory provisions in relation to already pending disputes of the sort.
63. Certainly, the delay in putting in place this procedure is regrettable, as well as the apparent duration of such proceedings (see the figures supplied by the applicant company and not contested by the Government set out at paragraph 54 above). Since its coming into force in 2017, thirty-four cases have been decided at first instance, fourteen of which have been appealed and are still pending. It follows that, as noted by the Constitutional Court and conceded by the applicant company (see paragraph 54 above), the domestic courts have not yet been able to establish any stable practice under this Act since its entry into force (see, mutatis mutandis, Nagovitsyn and Nalgiyev, cited above, § 30 and Balan v. Moldova (dec.), no. 44746/08, § 19, 24 January 2012). However, that is not sufficient to consider that a remedy is not effective (see, for example, Nagovitsyn and Nalgiyev, cited above, §§ 30 et seq., and Balan, cited above, §§ 19 et seq.).
64. There is currently no reason to doubt that in their findings in relation to the two portions of land expropriated originally in 1977, and re‑expropriated in 2019 and 2018 respectively, the ordinary courts can acknowledge, either expressly or in substance (see, for example, Sorasio and Others v. Italy (dec.), no. 56888/16 and 3 others, 14 November 2023, and Tuleya v. Poland (dec.), no 21181/19 and 1 other, 6 July 2023) the delay which has occurred in the expropriation process. According to the Government’s explanations (see paragraph 41 above) they can also award the relevant monetary redress, capable of rendering the applicant company devoid of victim status both for the purposes of Article 1 of Protocol No. 1 and Article 6 of the Convention. If this were not to be the case, it would be open to the applicant company to turn to the constitutional jurisdictions and if necessary to the Court.
65. In light of all the above considerations (see, in particular, paragraphs 61, 63 and 64 above), the Court finds, at this stage, and without prejudice to any future findings in the light of evolving jurisprudence, that the new remedy can be assumed to be able to afford the applicant company the opportunity to obtain adequate and sufficient redress for its grievances under Article 1 of Protocol No. 1 and Article 6 in relation to the two plots of land in relation to which proceedings are ongoing, and that it would offer reasonable prospects of success in that regard. The applicant company’s mere doubts about the capacity of the new remedy to provide adequate compensation cannot alter the Court’s conclusion (compare Nagovitsyn and Nalgiyev, cited above, § 30). This is even more so when the applicant company wishes to pursue the ordinary proceedings it undertook in relation to those two portions of land, and to keep open its possibility of challenging the outcome of those proceedings in a fresh set of constitutional redress proceedings, should that be necessary. In this connection, the Court reiterates that it is in the interests of the applicant company and the efficacy of the Convention system that the domestic authorities, which are best placed to do so, act to put right any alleged breaches of the Convention (see, mutatis mutandis, Papadakis v. the former Yugoslav Republic of Macedonia, no. 50254/07, § 102, 26 February 2013).
66. The situation is however slightly different in relation to the part of the land which has not been re-expropriated following the enactment of the Act, namely that portion of land measuring 1,225.5 sq. m., which was subject to a presidential declaration in 1977, and despite being officially released in 1987, had already been used to make roads and for which no compensation has ever been offered.
67. The applicant company was of the view that the Constitutional Court had considered that no remedy existed in relation to this portion of land (see paragraph 52 in fine above). However, the Court disagrees and notes that the Constitutional Court judgment confirmed in its entirety the judgment of FHCC which had held that if the applicant company had been of the view that other land had been taken to use roads it could undertake the procedure under article 67 of Chapter 537 (see paragraph 17 in fine above). The Government also relied on this provision, supplying two examples of it being applied in practice in situations where the Government had chosen to expropriate the land (see paragraphs 33 and 34 above). The Court of Appeal judgment relied on by the applicant company clarifying certain civil matters (see paragraph 30 above), which was followed by a further LAB judgment, does not suffice to create a doubt as to the effectiveness of this remedy in practice, in relation to property which the Government decided to expropriate. In case the Government decides to relinquish the land to the owner, Article 67 (8) also provides for the payment “of material damages and moral damages that have been suffered by the owner for all the years that the land has been occupied without any issuance of the Declaration” (see paragraph 27 above). It follows that, at this stage, from the examples and explanations supplied by the Government, the Court considers that such a remedy would offer reasonable prospects of success and therefore could have been an effective remedy for the applicant company’s remaining complaint.
68. In so far as the applicant company argued that a five-year limitation period, especially in the circumstances of the present case was excessively short, a matter which appears to be also the subject of proceedings pending before the domestic courts – and which should not fall under this Court’s scrutiny in the abstract – the Court observes that the applicant company has given no reasonable explanation as to why such remedy had not been pursued, even though the Constitutional Court had rejected its claim on 25 February 2021, that is more than a year prior to the time-barring of this claim due on 25 April 2022. Moreover, while the applicant company felt it was compelled to institute the other proceedings in order not to forfeit the right to challenge the compensation, it is unclear why it did not feel compelled to institute these other proceedings too, in relation to the remaining land, if it wanted the property to be released or expropriated by the State and to receive the relevant compensation.
69. It is true that as things stand the applicant company is precluded from pursuing these proceedings, and it remains the owner of a property which is occupied by third parties. However, without prejudice to any other avenue which may be (see paragraph 31 in fine above) or may become open to the applicant company at the domestic level, for the purpose of this part of the complaint the Court cannot but consider that the applicant company failed to avail itself of a remedy which was open to it and which it has not been shown had no prospects of success in relation to its complaints under Article 1 of Protocol No.1 combined with Article 6 in connection with this portion of land.
70. In conclusion, bearing in mind all the above and the findings of the Constitutional Court that the applicant had ordinary remedies to pursue, the Court considers that the applicant company failed to exhaust the domestic remedies available to it, as required by Article 35 § 1 of the Convention, and concludes that the application must be rejected, pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 27 February 2025.
Simeon Petrovski Lado Chanturia
Deputy Registrar President
[1] Page 16 of the judgment of the FHCC.
[2] B&B Property Developments Company Limited v. L-Awtorità tal-Artijiet, no. 12/2019.
[3] B&B Property Developments Company Limited v. L-Awtorità tal-Artijiet, no. 19/2019.