THIRD SECTION
CASE OF TESTAFERRATA BONICI AND OTHERS v. MALTA
(Application no. 41862/18)
 
 
 
 
 
 
JUDGMENT
 
STRASBOURG
30 June 2020
 
This judgment is final but it may be subject to editorial revision. In the case of Testaferrata Bonici and Others v. Malta,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
 Georgios A. Serghides, President,
 Erik Wennerström,
 Lorraine Schembri Orland, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 41862/18) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Maltese nationals, Mr Philip Testaferrata Bonici, Ms Marie Bianchi, Mr Nicholas Bianchi and Ms Rita Testaferrata Bonici (“the applicants”), on 30 August 2018;
the decision to give notice of the application to the Maltese Government (“the Government”);
the parties’ observations;
Having deliberated in private on 9 June 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
The case concerns the requisition of the applicants’ property and the disproportionality of the rent received by the applicants under Article 1 of Protocol No. 1, as well as the effectiveness of the Constitutional Court as a remedy for the purposes of Article 13 in connection with the former complaint. THE FACTS
THE CIRCUMSTANCES OF THE CASE
1. The applicants were born in 1951, 1954, 1960 and 1952 respectively and live in Lija. The applicants were represented by Dr Sarah Grech and Dr John (aka Ian) Refalo, lawyers practising in Valletta. 2. The Government were represented by their Agent, Dr V. Buttiġieġ, State Attorney. 3. The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case
4. The applicants are owners of a property (an eighteenth century palazzo) of around 1300 sq.m. situated in Balzan, Malta. 5. Since the 1930’s the property had been leased to the State and used as a primary school. Once the school was relocated, on 14 August 1974, the Government requisitioned the property in order to allocate it to different Government departments or other entities. 6. Over the years the property was used by the postal services (i.e. Maltapost Ltd., a private entity as of 1998, and previously a government service), a Local Council and the Government Department of Social Security, as well as that of Health and other civil service departments. The applicants were being paid a rent of approximately 256 euros (EUR) annually for the entirety of the property, based on its value in 1948. 7. In the year 2000 the applicants stopped accepting the rent which started being deposited in court and in 2001 the sum of approximately EUR 67,432 was paid to the applicants and a part of the property was returned to them, on the basis of a recommendation made by the Ombudsman who had heard their request to that effect. Constitutional redress proceedings
8. On 13 August 2012 the applicants instituted constitutional redress proceedings complaining under Article 1 of Protocol No. 1 to the Convention alone and in conjunction with Article 14 of the Convention. In particular they argued that the requisition order had not been in the public interest given that it was used also by private entities for commercial purposes and that they had been suffering an excessive burden given the low amount of rent. In this respect they noted that according to their architect’s report, the rental value of the property in 2012 was EUR 127,700 annually and rental value of the parts still occupied in 2012 was EUR 104,500 (its sale value was EUR 2,837,700). 9. During the constitutional proceedings the various entities were relocated and a partial derequisitioning order was issued on 26 June 2014. 10. By a judgment of 24 October 2017 the Civil Court (First Hall) in its constitutional competence, found a violation of Article 1 of Protocol No. 1 and rejected their complaint under Article 14. It considered that the applicants had been suffering a disproportionate burden as a result of the huge discrepancy between the low amount of rent paid to them in connection with the requisition and the market value of the property. It noted that while the applicants had been paid a lump sum in 2001 they had been suffering such interference for forty years. Thus, no fair balance had been reached. The court awarded the applicants EUR 50,000 in compensation bearing in mind the value of the property, the public interest behind the interference, the fact that the applicants only complained after several decades, the payment made in 2001, and the fact that the Convention was applicable to Malta only post 1987. No costs were to be paid by the applicants. 11. Only the applicants appealed and they appealed solely on the basis that the pecuniary damage awarded was too low, that no non-pecuniary damage had been awarded and that the violation persisted as the property had not yet been derequisitioned in its entirety, despite the fact that most of the entities had left the building and that the keys had been returned to the applicants. 12. By a judgment of 2 March 2018 the Constitutional Court upheld the appeal in part. Concerning remedial action, it held that while only one Government entity continued occupying a small part of the property and the keys to the rest of the property had been returned to the applicants, the requisition was still in force. It was thus for the authorities to derequisition the property in its entirety. Given such an order it considered that compensation was less relevant and that in any event it was not for the Constitutional Court to award civil pecuniary damage which was available before the ordinary courts. In its view its function was limited to awarding fair compensation for the period during which the applicants were denied the peaceful possession of their property against an inadequate amount of compensation. 13. As to the actual award it considered that: with the passage of time the requisition lost its legitimacy; the applicants had been awarded approximately EUR 67,000 on the basis of the recommendation by the Ombudsman; the authorities had co-operated in vacating the property throughout the proceedings; the property had been gradually vacated; and the sum of EUR 50,000 awarded by the first-instance court did not exclude non-pecuniary damage. Thus, in the Constitutional Court’s view the aggregate sum of EUR 117,432 and the return of the property constituted an effective remedy for the breach suffered. However, given that the property had not yet been derequisitioned, interest was due from the date of the judgment appealed against. Costs for the appeal proceedings were to be shared equally by the parties. Subsequent developments
14. On 2 April 2018 the applicants received the payment of EUR 50,000 in compensation, but no interest on that amount was paid. On 19 April 2018 the property was derequisitioned in its entirety and on 5 June 2018 the applicants received a cheque of EUR 1,621 in respect of legal expenses incurred. RELEVANT LEGAL FRAMEWORK
15. The relevant domestic law pertinent to the case is set out in Fleri Soler and Camilleri v. Malta (no. 35349/05, §§ 22-26, ECHR 2006‑X) and Apap Bologna v. Malta (no. 46931/12, §§ 28-30, 30 August 2016). THE LAW
ALLEGED VIOLATION OF ARTICLE 1 of PROTOCOL No. 1 to THE CONVENTION
16. The applicants complained that they were still victims of a violation of Article 1 of Protocol No. 1 upheld by the Constitutional Court given the low amount of compensation awarded. The provision reads as follows:
“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.”
AdmissibilityThe Government’s objection as to lack of victim status

(a)   The parties submissions
17. The Government submitted that the applicants had lost their victim status following the Constitutional Court’s finding which acknowledged the violation and awarded EUR 50,000 in compensation. They noted that that award had to be added to the previous awards of more than EUR 67,000. Moreover, the courts had also ordered that the property be derequisitioned, thus, the applicants had obtained the best possible redress, namely, restitution of the property as well as compensation. The Government also considered that the applicants could institute proceedings to execute that part of the Constitutional Court judgment in relation to the interest due. Lastly, the Government noted that the applicants’ reference to significant structural damage to the property was totally unsubstantiated. 18. Relying on the Court’s case law the applicants maintained that they remained victims of the violation upheld by the Constitutional Court given that the total compensation granted was a pittance compared to the damages actually suffered. They noted that the rental value of the property according to their expert was in 2012 EUR 127,700 annually, thus the total award received domestically (EUR 117,431.70) had not even covered a year’s rent, let alone the losses in rent incurred over forty years. They also referred to significant structural damage to the property which in their view cost EUR 100,000. (b)   The Court’s assessment
19. The Court refers to its general principles about the matter as set out in Apap Bologna v. Malta (no. 46931/12, §§ 41 and 43, 30 August 2016). 20. In the present case the Court notes that there has been an acknowledgment of a violation by the domestic court. As to whether appropriate and sufficient redress was granted, the Court considers that even though the market value is not applicable and the rent valuations may be decreased due to the legitimate aim at issue, and also bearing in mind that the valuation is an ex parte one and not provided by a court-appointed expert, an award of EUR 50,000 (in addition to a previous award of just over EUR 67,000) from which part of the costs of the appeal must be deducted - and which according to the Constitutional Court also covered non-pecuniary damage - can hardly be considered sufficient in the light of the value of the property at issue (see paragraph 8 above) and bearing in mind that the applicants were being paid a disproportionately low amount of rent, for decades. Further, the Court considers that the mere fact that the violation has been brought to an end by the order to derequisition the property, some forty years later, does not alter that conclusion. 21. It follows that the redress provided by the Constitutional Court did not offer sufficient relief to the applicants, who thus retain victim status for the purposes of this complaint. 22. The Government’s objection is therefore dismissed. Conclusion
23. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ submissions

24. The applicants complained of the requisition of their property in 1974 and the retention of the same by the Government without the payment of any fair compensation. The applicants submitted that in 1974 the rent being paid by the Government was EUR 256.23 (slightly more than the Government had been paying in 1939, which was approximately EUR 210) and that the rent had not been adjusted to meet inflation or other costs, at any point in the forty years that followed. They noted that, according to their expert’s valuation - which was accepted by the domestic court in the absence of any other expert report being submitted by the Government - the value of the property in 2012 was EUR 127,700 annually. Thus, adjusting that rental value to the previous years, over the forty years during which the property had been requisitioned, they should have received rent of over EUR 3,000,000. In reality they had only made EUR 6,661.98 in rent. They had then been granted a sum by the Ombudsman and later the domestic courts (totalling EUR 117,431.70) which in all, however, amounted to twenty-five times less than what was due to them (and this without factoring other issues such as interest on the amounts and the damage caused to the property). The applicants also added that over time some of the entities making use of the property had been privatised and used for private and commercial purposes. They further submitted that the partial derequisition order issued in 2014 (of three basement rooms), whereby the areas occupied by the Local Councils Association were derequisitioned, had a negligible effect on the possession of the property as the applicants were not free to use and enjoy the property as they wished. They, thus, considered that the measure had been clearly disproportionate. 25. The Government submitted that the applicants had only appealed the redress provided and thus the Court was only competent to deal with that matter. They noted that the applicants had been paid a total of EUR 117,431 for the occupation of the property which had been requisitioned in 1974 and was returned to the applicants part by part as of 2001, until its total derequisition in 2018. Dividing that sum over the relevant period meant that over forty-four years the applicants were obtaining around EUR 2,669 annually, but given that the applicants only complained about rent in 1991, this would mean that the total compensation over the relevant period would amount to EUR 4,349 annually which the Government considered was sufficient compensation given that the measure was lawful and in the general interest. 26. In relation to the quantified claim of rent which should have been received by the applicants, the Government firstly noted that it had not been drawn up by an architect, and secondly, that the method of calculation based on a valuation applicable only for one year was not reliable. Further, the applicants had used the immovable property price index published by the Central Bank of Malta, which however was only publicised for information purposes, as a supplement to the official contract-based property price index published by the National Statistics Office. Moreover, it was based on advertised prices and not actual agreed prices and therefore was not representative of all residential properties.

Outcome for Article 13: violation