5.  The first applicant company, B. Tagliaferro & Sons Limited, is a company registered in Malta in 1966 and is situated in Valletta. The second applicant company, Coleiro Brothers Limited, is also a company registered in Malta in 1966 and it is situated in Marsa.
6.  In 1993 each applicant company was the owner of a one third undivided share of three corner properties, namely nos. 124 and 125 in Strait Street and no. 109 Archbishop Street, Valletta (hereinafter “the properties”).
7.  According to a court-appointed expert the properties nos. 124 and 125 were valued at the equivalent of 35,000 euros (EUR) each in 1993 and EUR 58,000 and EUR 60,000 respectively in 2012, while property no. 109 was valued at the equivalent of EUR 93,000 in 1993 and EUR 140,000 in 2012. The same architect estimated that the rental value from 1993 to 1998 would be the equivalent of EUR 233, EUR 250 and EUR 600 respectively, to be augmented by 10 % every five years thereafter.
8.  By a President’s declaration of 23 February 1993 the Government declared its intention of acquiring by title of absolute purchase the three properties for public purposes. No Notice to Treat (offering an amount of compensation) was issued by the Commissioner of Lands (‘CoL’) at the time (see below). The public purpose later transpired to be that of using the properties, together with other properties also expropriated (together referred to as “the premises” hereinafter), as government offices ‑ in particular, as the Office of the Attorney General.
9.  On 2 June 1993 and 12 October 1993 the Government had lodged planning applications, which were later withdrawn. Another development application was submitted in 1996 and approved in the same year. However, since parts of the premises expropriated (including other adjacent property not owned by the applicant companies) were occupied by squatters and by other persons having legal title (of lease or similar ‑ inkwilini ‑ hereinafter referred to as “lessees”), the Government was unable to take over the premises. The applicant companies insisted that at the time of the declaration, the properties owned by them were vacant.
10.  Between 1996 and 2007 the Attorney General repeatedly requested the Lands Department to take steps to vacate the premises. In turn the latter department wrote to the Housing Authority requesting it to provide alternative accommodation to the lessees and the squatters. Given that not all the occupiers had applied for alternative accommodation, as expected by the authorities, the relocation process was delayed. Thus, the construction permit in relation to the planned project issued in 1996 expired. On 18 September 2000 another application was submitted to the Malta Environment and Planning Authority for approval. By the end of 2015 no approval had yet been issued due to various obstacles from the various committees of the Planning Authority.
11.  In the meantime in April 2000 the issue was brought to the attention of the Justice Minister and in January 2001 eviction orders were issued to evict the occupiers of the premises.
12.  In 2003 the applicant companies wrote to the CoL requesting him to pay compensation for the taking. The latter did not reply.
13.  In 2007 the premises were vacated and the Government took over their possession.
14.  By means of a judicial protest of 20 July 2008 the applicant companies requested the return of the properties owned by them as well as compensation for the taking until its effective release. The CoL did not reply to the protest.
15.  On 24 June 2009 the Government issued a new declaration for the expropriation of the properties. They offered the following amount of compensation which was deposited via the courts in an interest bearing account: EUR 8,968 for property no. 124 (for a plot of land measuring 23.10 sq.m.); EUR 8,316 for property no. 125 (no measurement provided); and EUR 21,733 for property no. 109 (for a plot of land measuring 87.08 sq.m), in line with estimates made by architect FHV.
16.  The Government thus became the owner of the properties in accordance with the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta, hereinafter “the Ordinance”, as amended. The applicant companies were not served with this declaration as required by law (see paragraph 37 below).
17.  On unspecified dates the two applicant companies instituted separate constitutional redress proceedings complaining that the taking had not been in the public interest, that there had been a delay in the payment of compensation and that they had had no access to an impartial and independent tribunal in the meantime.
18.  The two applications were heard and determined concurrently by the domestic courts.
19.  By two separate judgments of 12 October 2012 the Civil Court (First Hall), in its constitutional jurisdiction, upheld the applicant companies’ claims in part.
20.  It rejected their claim concerning the lack of public interest of the expropriation, having considered that the purpose of the taking was one in the general interest of citizens, given the role of the Attorney General who performed constitutional duties in the interest of the State. The Attorney General’s Office was to be moved to a more appropriate location, allowing it to expand. Whether the Government had other alternative property for this project was not a matter to be examined by the court, such choices falling within the Government’s discretion, which in the present case had not been applied unreasonably, and the decision had been intra vires. While it was true that a certain delay had occurred in the development of the initial plan, the court considered that the public interest still existed as the plan was still in force and had recently started progressing more rapidly. Moreover, the property was still earmarked for the same purpose, which purpose had never been abandoned by the authorities.
21.  The court, however, found a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention in connection with the delay resulting from the expropriation proceedings, highlighting the slowness of the authorities in taking steps to vacate the premises and in offering the applicant companies compensation.
22.  It further found a violation of Article 6 in so far as the applicant companies had not had access to court between 1993 and 2009, given that access to the Land Arbitration Board (LAB) was limited solely to the CoL.
23.  Moreover, until 2009 the LAB did not fulfil the requirements of an independent and impartial tribunal given its composition according to the law as it stood before the 2009 amendments. The constitutional jurisdictions had already held (in previous domestic‑case law) that the LAB did not fulfil the requirement of independence and impartiality because of the method of appointment of its technical members before the 2009 amendments. Nevertheless, the latter amendments provided that the technical members, who assisted the chairperson in his decision, would now be appointed by the chairperson. Moreover, the latter’s decision was subject to appeal before the Court of Appeal. It followed that the same issues did not arise post 2009, thus the applicant companies had suffered a violation of their right to have their claims determined by an independent and impartial tribunal solely until 2009.
24.  Furthermore, in the court’s view, the applicant companies were also still suffering a violation of their right to a fair trial within a reasonable time in connection with the proceedings which were at the time in their preliminary phase, in so far as the CoL had not yet officially notified the owners (or curators on their behalf) allowing them to challenge the compensation.
25.  The court further noted that while according to the law the obligation to act was upon the CoL and owners should not be required to take judicial steps to impose a term for him to act, the fact that the applicant companies had not undertaken such judicial steps could affect the compensation awarded.
26.  The court rejected the applicant companies’ claims for material damage without prejudice to proceedings which they could bring before the LAB which could now be considered independent and impartial – it being chaired by a judge or magistrate who fulfilled the relevant guarantee - and whose decisions could also be appealed. It awarded each applicant company EUR 10,000 in non‑pecuniary damage (known in the domestic system as moral damage) bearing in mind that they each were owners of a third undivided share of the properties. The court also ordered the applicant companies to pay half the costs of the proceedings, that is to say EUR 3,546.97.
27.  Both parties appealed.
28.  By two separate judgments of 31 May 2013 the Constitutional Court rejected the defendants’ appeal and upheld the applicant companies’ appeal in part. It confirmed the first‑instance judgment, extending the scope of certain violations and increasing the amount of compensation awarded.
29.  The Constitutional Court confirmed the violations of Article 6 (access to court and length of proceedings) and Article 1 of Protocol No. 1 to the Convention in so far as in the absence of a Notice to Treat issued by the CoL the applicant companies had had no access to court from 1993 to 2009. However, these violations persisted further, in so far as even after the declaration of 2009 and the CoL’s deposit in court of the offer made to the applicant companies, he had failed to notify the owners as required by law [Article 9 (2) of the Ordinance] with the consequence that proceedings had stagnated and no access to court by the applicant companies was possible as a result of his inaction. Indeed, the authorities had slacked all throughout the process. Similarly, the Constitutional Court confirmed that the applicant companies’ failure to bring judicial proceedings to oblige the CoL to act could only have a bearing on the award of compensation but not on the substance of the claim.
30.  It further confirmed the public interest of the taking, which persisted to date since, despite the delay, the Government was still pursuing the aim it had originally intended for the property.
31.  The Constitutional Court also confirmed the lack of independence and impartiality of the LAB, however not only until 2009. The Constitutional Court considered that, even following those amendments the law remained deficient given the lack of security of tenure of the technical members of the board, on whose technical advice the chairperson had to base his or her decision. While it confirmed the first‑instance court’s findings concerning the role of the chairperson, it observed that the technical members were still subject to reappointment (by the President of Malta, on the advice of the executive, which was always a party to the proceedings before such board). Although the role of the technical members was subordinate to that of the chairperson (who following the amendments was not bound to follow the experts’ unanimous report), in practice it was decisive in so far as the chairperson (a legal person without the necessary technical knowledge) was undoubtedly influenced by the decision of the technical members when considering technical matters. As stated in previous domestic case-law, at least in the mind of an objective observer, the possibility of the technical experts being reappointed could be an incentive for such members to determine low values for expropriated property in order to remain in the good books of the executive who had the power to keep them in office. Thus, such a body did not fulfil the guarantees of independence and impartiality. In the specific circumstances, those failings could not be cured by the Court of Appeal, which was not in a position to interfere with the conclusions of the technical members of the board.
32.  However, the Constitutional Court considered that material damage had to be awarded by the LAB in separate proceedings; it thus only awarded non-pecuniary damage in the amount of EUR 15,000 to each applicant company. It ordered the applicant companies to pay a third of the costs of the appeal proceedings (that is, EUR 1,109.41) and confirmed the costs as ordered at first-instance for those proceedings. It further directed that the judgment be served upon the Speaker of the House of Representatives.
33.  In 2018 the applicant companies submitted that no use had yet been made of their property, the value of which was increasing in line with the value of property in general in Malta. They also noted that the Government had done restoration works in the area, particularly to a part of Palazzo Verdelin, which was a historic building described in newspapers as an early example of baroque architecture in Malta, but not to the part owned by the applicant companies which was left to deteriorate in the absence of maintenance works.
34.  At the same time, the Government informed the Court that due to the urgency of vacating and transferring the Office of the Attorney General, another building in Valletta which was previously a museum was identified for use as the Office of the Attorney General. It was now being refurbished and modified for such purpose. However, the applicant companies’ property remained designated for public use. They noted that the applicant companies’ property could not be refurbished as it needed extensive structural works unlike Palazzo Verdelin which required only restoring the facade.