5.  Since 2002, following their ancestors’ demise, the applicants have been the holders of the utile dominium (by way of sub-emphyteusis which expires in 2047) of a portion of land in Zabbar, Malta. The directum dominus (direct owner) is the State.
6.  The applicants’ ancestors acquired the utile dominium of the property also through inheritance from a certain X. who had held the property under title of temporary sub-emphyteusis of 150 years. On the said property there was a shop which was rented out to third parties as a snack bar.
7.  By a Governor’s declaration of 7 May 1965 published in the Government Gazette on 14 May 1965 (no. 290), a part, amounting to 80 sq. m. (including the shop of an area of approximately 50 sq. m.), of the applicants’ property (as well as other land not held by the applicants) was declared to be needed for a public purpose under the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta (hereinafter, “the Ordinance”).
8.  The Government took possession of the entirety of the property mentioned in the declaration and demolished the shop in order to build a local civic centre and service roads (in connection with a development project for the locality). However, in 1972 changes were made to the plan (pjan regolatur). Specifically it was decided to reposition the road which had to be built on the part of the land on which the shop had stood. Thus, it was decided that on that plot of land which adjoined another larger plot of land (not owned by the applicants), a new shop would be built at the Government’s expense in order to serve the square and the civic centre, as well as government offices and for use as a bus terminus. The civic centre at that time hosted the Zabbar Local Council, a social-security office, a police station, a post office, a snack bar, a butcher’s shop, a draper’s shop, a beauty parlour and a grocer’s shop.
9.  The new shop (of larger dimensions than the previous one) was built mostly on the applicants’ land and leased to the same third party mentioned above for use as a snack bar. The remaining small area of land, belonging to the applicants’ ancestors, which had been taken but not used, was returned to them in 1988.
10.  Extra-judicial requests to obtain the return of the property used for the purposes of the snack bar were to no avail.
11.  Pending the constitutional-redress proceedings (below), on 13 April 2010 the Commissioner of Land (hereinafter “the Commissioner”) extended the lease in favour of the third party until 31 January 2020, at a rent of approximately 2,100 euros (EUR) per year.
12.  In the light of Article 9 of the Ordinance and Act I of 2006, on 6 October 2010, by a President’s declaration of 3 September 2010, the sum offered for the taking of 7 May 1965 was EUR 13,000 in accordance with an architect’s valuation dated 1 January 2005.
13.  In 2010 the bus terminus was moved as a result of changes in the transport system. Currently, within a radius of 300 m of the civic centre there are eleven establishments offering take-away food services (bars, snack bars, confectioners’, pizzerias, pastizzerias, and so forth).
14.  On 2 March 2010 the applicants instituted constitutional redress proceedings. They complained that they had suffered a breach of Article 1 of Protocol No. 1 to the Convention, in so far as their land had not been taken in the public interest, and of Article 6 of the Convention, as well as the corresponding provisions of the Constitution of Malta. They requested that the court annul the Governor’s declaration in respect of their property, order that it be returned to their possession and award adequate redress.
15.  By a judgment of 26 June 2012 the Civil Court (First Hall), in its constitutional jurisdiction, upheld the applicants’ claims.
16.  The court noted that pursuant to the Ordinance, as it was at the time, it had been the Commissioner who had had to make an offer, and in the event that the offer had been refused, the same Commissioner had had to institute proceedings before the Land Arbitration Board (hereinafter “the LAB”). Pursuant to the Ordinance as amended, it was still for the Commissioner to make an offer. It was open, however, for the receivers of the offer, if they disagreed, to institute proceedings to challenge the offer before the LAB. Nevertheless, in the present case, it had taken forty‑five years for the Commissioner to make an offer, during which time the applicants had had no possibility of initiating proceedings, and thus had no ordinary remedies to exhaust in connection with their request for compensation. The same applied concerning their complaint of a lack of public interest despite amendments to the law in 2009 (Act XXV of 2009) ‑ which had introduced the possibility of challenging the public interest of an expropriation before the LAB, within twenty-one days of the declaration – in the court’s view it was unlikely that an individual would be able to challenge a public interest which had not been mentioned in the declaration.
17.  As to the complaint concerning the applicants’ property rights, having extensively referred to domestic as well as Strasbourg case-law, the court held that the taking had not been in the public interest in so far as the property had been leased to third parties as a snack bar and thus for commercial purposes. It had solely and intrinsically served private interests, specifically those of the third parties who had been leasing the property merely for commercial purposes, irrespective of the fact that the snack bar had been regularly used by bus drivers. Furthermore, the applicants had received no compensation in forty-five years, and the offer made to them in 2010 (solely after constitutional redress proceedings had been commenced) had been based on a valuation from 2005. In the court’s view, based on the rent as submitted by the Commissioner, “capitalised” at the rate of 3.5% applicable in such cases, the value of the property was approximately EUR 60,000, that is to say five times the sum offered by the Commissioner. The situation was made even worse by the lack of procedural safeguards (as mentioned above) through which they could challenge their situation, which also meant that they had not had any access to court in order to claim compensation, as required by Article 6 of the Convention.
18.  The court annulled the Governor’s declaration of 7 May 1965 and the President’s declaration of 6 October 2010 as well as any other action, affecting the property, taken by the defendant pending the proceedings. It ordered the return of the property (vacant possession) in favour of the applicants and awarded EUR 40,000 in compensation including non‑pecuniary (moral damage as known in the domestic system) and pecuniary damage (material damage) covering occupation of the premises until the date of return, in connection with the breach suffered.
19.  The defendants appealed, arguing that there was a public interest and challenging the award of compensation and the return order.
20.  By a judgment of 26 April 2013 the Constitutional Court allowed the appeal in part and quashed the first-instance judgment in part.
It considered that at the time of the declaration the taking (of the land on which the shop had stood) had been certainly in the public interest, specifically the building of roads giving access to the public. It was true that use of that plot of land had changed in 1972, as it had been decided to build a snack bar (and later to lease it) to see to the needs of the users of the square, as well as the civic centre, government offices, and a bus terminus. Thus, in the Constitutional Court’s view the fact that it had been rented out to third parties had not diminished the public interest in the taking. Nevertheless, there had been a violation of the applicants’ property rights in so far as they had been deprived of their property for a number of years without any compensation. In particular they had received no compensation whatsoever for the part of the property taken and not used, which had been returned to them only after twenty-three years, and in respect of the remaining part which was used, the applicants were still awaiting compensation. The Constitutional Court however disagreed with the redress given by the first-instance court, in so far as that court had also awarded pecuniary damage. It considered that that court should have awarded compensation without prejudice to the pecuniary damage due in accordance with the relevant law (Article 12 § 3 of the Ordinance, specifically interest of 5% on the value of the property). Thus, without prejudice to any such claim for pecuniary compensation in respect of the property taken and the relative interest, the Constitutional Court awarded EUR 10,000 in non‑pecuniary damages for the violation suffered, bearing in mind that the value of the property was EUR 13,000, and it annulled the return order for the property.
21.  As the applicants refused to collect the award made by the Constitutional Court, in January 2014 the Commissioner deposited the award in court by means of a schedule of deposit.
22.  On 3 September 2015 the Government sent the applicants a letter reminding them to send evidence concerning their title in connection with the President’s declaration of 6 October 2010.