THIRD SECTION
 
 
 
 
 
 
 
CASE OF CACHIA AND OTHERS v. MALTA
 
(Application no. 72486/14)
 
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
22 January 2019
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Cachia and Others v. Malta,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
 Helen Keller, President,
 Branko Lubarda,
 Alena Poláčková, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 18 December 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 72486/14) 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 ten Maltese nationals (see Appendix) (“the applicants”), on 13 November 2014. 2. The applicants were represented by Dr D. Camilleri, Dr M. De Marco and Dr J. Gatt, lawyers practicing in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General. 3. On 27 May 2016 the application was communicated to the Government. 4. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
5. The applicants claim to be the owners of the land at issue in the present case. It appears from the documents in the case‑file that the applicants along with two other persons own one third undivided shares of part of that property. 6. By a judicial letter of 15 February 1969 the applicants’ father (PC) was notified with a copy of a declaration by the Governor General whereby it was being declared that six plots of land in Kalafrana and Bengħajsa, limits of Birżebbuġa, Malta, were required for a public purpose and thus the Governor General was acquiring the said property by title of full ownership. 7. A similar letter dated 26 February 1969 was notified to the applicants’ father sometime later. The latter concerned another piece of land consisting of around 22,480 square metres close to the sea (Plot 60 ‑ hereinafter referred to as Land B). 8. Sometime later PC was notified with an offer of compensation in the amount of 4,492 Maltese Liras (MTL), approximately 10,464 Euros (EUR) in respect of the six plots of land mentioned above. He refused to accept the amount of compensation. 9. Subsequently the Commissioner of Land (CoL) started the procedure before the Land Arbitration Board (LAB), in order to transfer the land and establish the amount of compensation to be paid. 10. A part of the six plots of land were used for the purposes of the Malta Freeport (hereinafter Land A). However, parts of the same six plots were not used for this purpose and Land B remains unused to date. According to the Government they were not left unused but simply not built, as they were used as a buffer zone for security purposes. B. First set of constitutional redress proceedings
11. In 1997 PC instituted constitutional redress proceedings concerning part of those six plots of land which had been taken but remained unused (Land C). By a final judgment of 28 December 2001, the Constitutional Court found in favour of the applicants and declared the Government’s declaration in respect of that land (which was outside the Freeport zone) as without effect from the date of the first‑instance judgment, 9 April 1999. 12. As a result of the Constitutional Court’s judgment, the proceedings before the LAB were ceded by the CoL on 8 April 2003. As a result of the CoL’s action, no compensation was ever determined for the taking of the applicants’ remaining land (A and B). C. The second set of constitutional redress proceedings
13. In 2006 PC and his wife instituted constitutional redress proceedings in connection with the part of the six plots of land which was actually used for the purposes of the Freeport (Land A), as well as Land B which had remained unutilised. Invoking Article 1 of Protocol No. 1 to the Convention and Article 6 of the Convention, they asked the court to declare the declaration of the Governor General null, to return the unused parts of the land, to award compensation in respect of the land which had been used, and to redress the violations found. In particular they argued that the land had not been expropriated for a public purpose, but for a commercial purpose given that the CoL had transferred the land to the Malta Freeport Corporation and in 1989 with the introduction of the Freeport Act, the land became part of the Freeport. The Freeport was eventually privatised in 2001 and sold to an international company in 2004. 14. During these proceedings, on 4 November 2008, a doubt was raised by the Government and the technical expert as to the exact size of Land B, in so far as the site plans (attached to the applicants’ application to the domestic courts) drafted by the architect included an extra area which appeared to be owned by the Government. The Government thus requested the court to determine the confines of the expropriated land, and thereafter the title of the applicants to the land in question. The Government noted that both elements were necessary to define the juridical interest of the applicants. 15. The parties agreed that they would attempt to find relevant documentation to this effect. Various documentation was subsequently submitted to the court, including purchase contracts in the name of PC, although these were often not accompanied by the relevant plans of the land. According to the conclusions of a technical report drawn up on the matter by a court‑appointed architect in June 2009, Land B as shown on the plans which were submitted by the applicants with the application to the Civil Court (First Hall), included a piece of land which PC had already sold to a third party, the remaining parts which were expropriated were the property of the applicants. 16. By a decree of 30 September 2010 the applicants as heirs of their parents who passed away intervened in the proceedings in their stead. 17. By a judgment of 2 October 2013, the Civil Court (First Hall) in its constitutional competence rejected the Government’s objection as to non‑exhaustion of ordinary remedies and found in favour of the applicants in part. It found that there had been a violation of the Convention provisions invoked in connection with Land B which had remained unused in so far as the taking lacked any public interest. It thus declared the Governor declaration in that respect to be null and void. It further ordered the release of that land and the payment of EUR 30,000 in compensation for the years during which the applicants had been denied the use of their land. It however rejected the applicants’ claims in connection with Land A, which it considered had been taken from the applicants in the public interest. 18. Both the applicants and the defendants appealed. 19. By a judgment of 30 May 2014 the Constitutional Court upheld the Government’s appeal and rejected that lodged by the applicants. 20. The Constitutional Court considered that there was no doubt that the Freeport was established in the public interest namely the economic development of the country and therefore the taking of Land A was Convention compatible. As to compensation in respect of Land A, it considered that the applicants had not raised, before the first‑instance court, a complaint about a lack of proportionality, and thus they could not raise this matter on appeal. It followed that no compensation was due in that respect. 21. As to Land B, the Constitutional Court acknowledged that the Government had not made any objection in the sense that the applicants were not the owners of the property, nor that proof was required as to ownership of that land. There also appeared to be no doubt that this property formed part of the property referred to in the Governor’s declaration notified to the applicants’ father. Nevertheless, the Constitutional Court considered that during the first‑instance proceedings, on 4 November 2008, a doubt was raised as to the matter by the Government and the technical expert, which was eventually never resolved before the first‑instance court. The latter court had, nevertheless, proceeded to give judgment, instead of allowing the applicants some time to institute a relevant procedure to determine their ownership of the property. However, in such a circumstance the Constitutional Court considered that it could not give a remedy to the applicants in the absence of proof of their ownership. It thus revoked that part of the first‑instance judgment which had found a violation and had awarded compensation in respect of Land B. II. RELEVANT DOMESTIC LAW
22. The relevant domestic law and practice concerning the case can be found in Frendo Randon and Others v. Malta (no. 2226/10, §§ 26‑29, 22 November 2011). 23. Further, Section 3 (1) of the Malta Freeports Act, Chapter 334 of the Laws of Malta, enacted in 1990, reads as follows:
“The areas of Malta shown on the plan enrolled by the Secretary General of the Government of Malta in the records of the Chief Notary to Government, Dr. Franco Pellegrini, of the 25th April, 1989, shall, for all intents and purposes of this Act and of any other law, constitute Freeport zones. The said areas are indicated in the plan shown in the Schedule.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
24. The applicants complained about the expropriation of their land. In particular they claimed that the land had not been taken for a public purpose since the Freeport was a commercial entity. Moreover, they had been paid no compensation in connection with the takings of Lands A and B contrary to that provided in Article 1 of Protocol No. 1 to the Convention which 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.”
25. The Government contested that argument. A. Admissibility
1. Land A
(a)  The parties’ submissions
26. Relying on Bezzina Wettinger and Others v. Malta, no. 15091/06, 8 April 2008 and J. Lautier Company Limited v. Malta (dec.) no. 37448/06, 2 December 2008 (where the court had found that the applicants in those cases had not raised the issue of compensation before the domestic courts) the Government submitted that the complaint before the domestic courts was strictly limited to a claim that the lands had not been taken for a public purpose since the Freeport was a commercial entity and the issue of compensation was only referred to in a generic manner. This claim concerning the public interest was repeated all throughout their application to the domestic courts, together with the fact that the violation arose as a result of the failure to use the land. No claim relative to compensation for the taking was made before the domestic courts. Their only claim for compensation was in respect of the occupation of the property, indeed they had asked the court to “release the property” and “establish the compensation due to the applicants for the sixty years during which they were deprived of the use of this property” meaning that they were only claiming rent for the occupation of the land. Thus, they had not exhausted domestic remedies on that point and they could still today start new constitutional redress proceedings claiming compensation. They noted that since the applicants had never brought, before the domestic authorities, a claim about the compensation offered, a plea of res judicata would not be justified. 27. The applicants noted that following their ancestor’s initial contestation of the sum offered in compensation, proceedings had been initiated by the CoL (who was the only party entitled to institute such proceedings under domestic law), only to be ceded again by the CoL following the Constitutional Court judgment of 2001. Subsequent to that, the applicants lodged proceedings before the Civil Court (First Hall) requesting all those remedies which were needed to satisfy the finding of a violation. In their application to that court they had specifically noted that the applicants had received no compensation. They considered that no other ordinary proceedings were available, and had they to institute a new set of constitutional redress proceedings after being unsuccessful before the ECtHR, the Government would no doubt raise the plea of res judicata. Without prejudice to that factual submission the applicants also noted that Article 1 of Protocol No. 1 had to be seen as a whole, thus any assessment of the proportionality of a measure had to take account of whether any compensation was paid. Lastly, the applicants noted that this Court had repeatedly chastised the judgments of the Constitutional Court of Malta. It thus transpired that in cases of the sort the only effective remedy was the ECtHR. (b)  The Court’s assessment
28. The Court notes that the Government’s claim is supported by the Constitutional Court’s finding. Indeed the Constitutional Court found that the applicants had not raised an issue of proportionality concerning Land A (namely land which had been taken and used for the Freeport but in respect of which no compensation was ever paid by the State who had failed to pursue the relevant proceedings as they were duty bound to do according to law). From the documents in the Court’s possession it appears that the applicants had challenged, before the constitutional jurisdictions, the public interest of the taking of Land A, and they requested the domestic jurisdictions to award compensation for the use of that property, and not for the expropriation itself. The Court observes that, in the present case, no compensation had been awarded for the expropriated land since according to domestic law the institution of compensation proceedings before the LAB was dependent on the CoL, and in the present case the CoL had withdrawn proceedings in 2003 (see paragraph 12 above). Thus, in the Court’s view, the situation is one which merited a specific complaint to that effect. While it is true that the applicants argued on appeal that the absence of any compensation would render the measure disproportionate, the Constitutional Court replied that the applicants could not raise new issues at that stage of the proceedings. 29. The Court reiterates that in accordance with Article 35 § 1 of the Convention, the Court may only deal with an issue after all domestic remedies have been exhausted. The purpose of this 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, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time‑limits (see Micallef v. Malta [GC], no. 17056/06, § 55, ECHR 2009). Bearing in mind the specific circumstances of the present case, in particular the fact that the applicants’ grievances related to different aspects under Article 1 of Protocol No. 1, as well as different properties, the Court considers that the applicants failed to fulfil domestic remedies in respect of their complaint concerning compensation for the expropriation of Land A (compare Bezzina Wettinger and Others, cited above, § 104 and J. Lautier Company Limited (dec.), cited above). As stated by the Government the applicants may still raise this complaint before the constitutional jurisdictions in the event that compensation for the taking remains unpaid. 30. The Government’s objection in that respect is therefore upheld. 31. It follows that the complaint in so far as it concerns compensation for Land A must be rejected for non‑exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention. 32. The Court notes that the applicants’ complaint also concerns the public interest of the measure, namely the taking of Land A which was actually used for the Purposes of the Malta Freeport. In that connection the Court notes that it has already held that the Freeport Terminal Project was in the public interest (see Frendo Randon and Others v. Malta, no. 2226/10, § 60, 22 November 2011). Thus, this part of the land having been used in connection with the Freeport project, which was eventually “privatised”, the taking, nevertheless, satisfied the public-interest requirement (ibid.). 33. It follows that this part of the complaint concerning Land A is manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. 2. Land B
34. The Government submitted that the applicants had not shown that they were the owners of Land B or that they held it under any other title. Besides that, they were unable to show the exact confines of Land B. Nor had they responded to the Court’s question about the extent of their shares in the property or the size of the property (referring to both Land A and B). 35. The applicants noted that the expropriation order and the notice to treat had been addressed to their father. Thus, the CoL had been well aware that at the time of the expropriation the expropriated lands belonged to the applicants. Indeed before the constitutional jurisdictions the Government had not contested the applicants’ ownership of Lands B. Nevertheless, the applicants had submitted copies of contracts as an architect had been nominated by the court to examine the contracts and conclude the extent of the land. In his testimony he stated that the question being debated was whether that land consisted of 16 or 20 tumoli. Indeed there had never been any doubt that at least 16 tumoli of that land belonged to the applicants. 36. The Court notes that the Constitutional Court ex officio questioned the applicants’ title to the property despite acknowledging that all indications were in the applicants’ favour, and it rejected their claim for compensation precisely for that reason. In reality, having examined in detail the case‑file, the Court finds that the only doubt which had arisen about Land B was concerning its exact measurement, and therefore not the ownership of the majority of such property, but only an extra part which appeared to have been included in the plans by the architects. Indeed, as noted by the Constitutional Court, before it, no objections had been raised in this respect, and the notice of expropriation as well as the notice to treat, concerning the property were addressed to the applicants’ father as owner, and at no stage was this contested. The first‑instance constitutional jurisdiction had found in favour of the applicants, and awarded them compensation for the taking of Land B. Thus, despite the Constitutional Court’s finding, these facts indicate that the applicants have been at least tacitly acknowledged as having title to the land by both the authorities and the first‑instance domestic court (see paragraph 15 above). Moreover, it has not been contested that the applicants were the rightful heirs of their ancestors. This is sufficient to conclude that the applicants had title to the land in question and thus had a possession for the purposes of the relevant provision (compare, Galea and Others v. Malta, no. 68980/13, § 27, 13 February 2018 and Frendo Randon and Others, cited above, §§ 56‑57). 37. A question however remains concerning the extent of that possession. Nevertheless, that issue only has a bearing on the award of compensation which to date has not been effected, and thus does not preclude the Court from determining whether or not there had been a violation in respect of the part of Land B owned by the applicants, without prejudice to any further procedures which can be undertaken domestically to determine the exact confines and thus size of that land for the purposes of compensation. 38. The Government’s objection is therefore dismissed, without prejudice to the extent of that possession. 39. The Court notes that the complaint concerning the part of Land B owned by the applicants 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. B. Merits
1. The parties’ submissions
(a)  The applicants
40. The applicants submitted that the fact that the deprivation of their property had not pursued a public interest made it automatically unlawful despite the fact that formal procedures had been followed. 41. In the applicants’ view alleging that the land had been taken for the Freeport project, without giving concrete details of what use was to be made or had actually been made of that land was not enough to prove the public interest. Even more so given that the taking went to benefit private entities which made huge profits (as shown by documents submitted to this Court). 42. The applicants submitted that they had not been compensated for their land and they had no further ordinary remedy in that regard since the compensation proceedings had been withdrawn by the CoL. (b)  The Government
43. The Government submitted that the interference was lawful as it was in accordance with the Land Acquisition (Public Purposes) Ordinance, Chapter 88 (formerly Chapter 136) of the Laws of Malta. 44. The property was expropriated in 1969 as part of the Freeport Terminal Project and the further expansion of the terminal. This was a key public project playing a major role in the Maltese social and economic context which was implemented over a span of forty years and was still developing. They referred to Section 3 (1) of Chapter 334 of the Laws of Malta (see paragraph 23 above). 45. As to Land B, the Government submitted that the purpose of that land was to create a buffer zone for the Freeport for security reasons and also to serve for practical reasons such as installation of gas pipes as confirmed by a witness in the domestic proceedings. As shown by the relevant document presented to the Court, during the domestic proceedings, the assistant director of the Department of Land had testified that when she had enquired with the ministry as to whether they needed the relevant plot [60], they had replied that they needed it for security given that they might need to pass pipes or similar materials from there. 46. The Government reiterated that the applicants had not contested domestically the offer made by the CoL. In this connection they noted that the applicants had been offered approximately EUR 1,864 for Land B, which was agricultural land. The Government explained that the applicants’ ancestor had not agreed with the value attributed to the land as he had considered it to be a building site. However, the land was purely agricultural and the applicants had not indicated what, in their view, would have been a fair value of the property. Thus, the offer made, according to the relevant law, had been fair. Moreover, if it were to be paid today, upon the applicant’s providing proof of title, the amount would be payable together with interest from the date of the taking of the property. However, without prejudice to that statement, they further considered that when pursuing legitimate interests compensation needed not reflect market values. 47. The Government submitted that the present case was different to Curmi v. Malta (no. 2243/10, 22 November 2011), were the CoL had not instituted proceedings before the LAB, it was also different from Frendo Randon and Others (cited above) and Azzopardi v. Malta (no. 28177/12, 6 November 2014), where proceedings instituted before the LAB were lengthy. In the present case, proceedings had been instituted, but the finding of the Constitutional Court of 2001 concerning Land C (see paragraph 11 above) brought about the situation where the offer previously made could no longer be contested. 2. The Court’s assessment
48. The Court refers to the general principles set out in Frendo Randon and Others (cited above, § 51‑55). 49. The Government submitted before this Court that Land B was needed as a buffer zone and that some use may still be made of it in future to pass gas pipes. As already held in Frendo Randon and Others (cited above § 61), which concerned the same Freeport project, the Court is convinced that a project of this scale may require further expansion; however, it is of the view that the Government, when expropriating the relevant land, should have had some concrete plans at least for its forthcoming, if not for its imminent, development. Any further expansion after the start of the project or, as in the present case, one which might have been necessary four decades after the initiation of the project, may require further expropriation of land at later stages. The Court considers that the same applies for “expansion” for the purposes of the introduction of gas lines which ‑ according to the testimony relied on by the Government ‑ remains only a hypothetical future use. In addition, no details have been put forward considering an alleged buffer zone. In this connection the Court notes that, as also confirmed by the first‑instance court, and not disproved on appeal, no use has been made of the part of Land B owned by the applicants, and taken nearly fifty years ago. Given the above, it cannot be said that the delay in making use of that land was itself based on any public‑interest concern. Moreover, it is indisputable that the land has seen an increase in value, of which the applicants have been deprived (ibid.). 50. Thus, the Court considers that the lapse of nearly fifty years from the date of the taking of the land without any concrete use having been made of it, in accordance with the requirements of the initial taking, raises an issue under Article 1 of Protocol No. 1, in respect of the public‑interest requirement. Given that the finding concerning the public interest at issue has an impact on the compensation due, as well as the fact that to date there is no final decision concerning the compensation due to the applicants (see, mutatis mutandis, Vassallo v. Malta (just satisfaction), no. 57862/09, § 19, 6 November 2012) the Court does not find it necessary to examine the adequacy of the compensation offered – a matter not debated before the domestic courts after the withdrawal by the CoL of the compensation proceedings. It suffices to hold, in this connection, that given that nearly fifty years after the taking the applicants have not received any compensation whatsoever, they have been required to be bear a disproportionate burden (see, mutatis mutandis, Vassallo v. Malta, (merits), no. 57862/09, §§ 44‑45, 11 October 2011). 51.

Outcome for Article P1-1: violation