CASE OF FRENDO RANDON AND OTHERS  v. MALTA
Violation of Art. 6-1;Violation of P1-1;Just satisfaction - reserved
David Scicluna;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
6. The applicants were born in 1926, 1969, 1925, 1923, 1926, 1937, 1938, 1949, 1953, 1946, 1973, 1975, 1949, 1950, 1953, 1951, 1955, 1957, 1946, 1941, 1944, 1944, 1945, 1946, 1950, 1960, 1955, 1931, 1923, 1926, 1940, 1941, 1943, 1944, 1946, 1925, 1955, 1954, 1930, 1958, 1959, 1954, 1979, 1982, 1987, 1953, 1929 and 1959 respectively. The first thirty-eight applicants live in Malta, the next eight applicants live in the United States of America, the penultimate applicant lives in Canada and the last applicant lives in the United Kingdom. 7. The applicants or their predecessors in title (hereinafter “the applicants”) owned four plots of land of varying sizes. The applicants were notified that their land had been made subject to two declarations by the Governor General dated 13 February 1969 and 20 February 1969, stating that the land would be expropriated for a public purpose. The intended public purpose was the building of the Malta Freeport. The said plots were numbered Plot 2 (16,544 sq.m), Plot 3 (405 sq.m), Plot 41 (6,841 sq.m) and Plot 53 (12,538 sq.m). 8. Following notices to treat of 21 February 1969 and 24 February 1969 respectively, the applicants were offered 3,225 Maltese liras ((MTL) - approximately 7,512 euros (EUR)) for Plot 2, MTL 973,40 (approximately EUR 2,267) for Plot 3, MTL 575 (approximately EUR 1, 340) for Plot 41, and MTL 1,127 (approximately EUR 2,625) for Plot 53. In March 1969 the applicants refused the above-mentioned offers in respect of Plots 2, 41 and 53 and submitted their counteroffers. According to the Government, the applicants accepted the offer in respect of Plot 3; however, the applicants contested this. Subsequently, the Commissioner of Lands (CoL) was required to institute proceedings before the Land Arbitration Board (LAB) (see “Relevant domestic law below”). Although no such proceedings ensued, the CoL gave possession of the four plots of land to the Malta Freeport Corporation. 9. The applicants unsuccessfully requested the CoL to initiate proceedings a number of times; however, the latter did not do so, insisting that he wanted further information in relation to the applicants’ ownership title. The law at the relevant time did not provide for a procedure which would allow the applicants to initiate proceedings for compensation. The initiation of compensation proceedings was an action which could be undertaken only by the authorities, and to which no time-limit applied. However, in the 1990s it had been confirmed that the ordinary courts had the competence, upon a request made by persons in a similar position to the applicants, to set a time-limit for the performance of that obligation, by virtue of Article 1078 of the Civil Code. 10. Thus, on 27 August 1996 the applicants lodged ordinary civil proceedings, requesting the court to order the CoL to initiate the necessary proceedings within an established time frame. 11. On 4 February 2000 the Civil Court upheld the applicants’ request, and ordered the CoL to initiate proceedings before the LAB within three months of that date. It noted that the relevant notices to treat had been issued to all the owners concerned who at the time were still alive. Moreover, it was incumbent on the CoL to establish the identity of the owners of the land and to ensure that they were notified and that the relevant proceedings were pursued properly. No appeal having been lodged, the judgment became final. 12. On 18 April 2000 the CoL instituted compensation proceedings in respect of only two of the plots of land in question (Plots 41 and 53). These proceedings are still pending, as they were suspended sine die, pending the outcome of the constitutional proceedings mentioned below. 13. Compensation proceedings in relation to Plots 2 and 3 had not been initiated by the time the applicants instituted constitutional redress proceedings. However, pending the constitutional proceedings, on 6 February 2003, a schedule of deposit was filed in court, in relation to Plot 2, consisting of MTL 3,225 (approximately EUR 7,512) covering the price of the land and MTL 3,288 (approximately EUR 7,659) as damages for the delay in payment. 14. By that date, only a portion of the four plots of land had been used, the remaining portion remaining unused but earmarked for future expansion. More precisely, most of Plot 2 is currently being developed as a stacking area for containers for the purposes of the Freeport, the remaining 500 sq. m forming part of an area of land conceded on lease by the Freeport Corporation to Medserv Ltd. Plot 3 (consisting of a farmhouse and adjacent rural structures) and Plot 41 are outside the Freeport zone, and are currently in their original state but may be earmarked for future expansion. Plot 53 is almost entirely within the Freeport zone and has been used for that purpose, including the building of roads, except for a piece of land measuring 600 sq.m, which is outside the Freeport zone and is currently in its original state but may be earmarked for future expansion. 15. In consequence, the applicants, who remain uncompensated to date, instituted two sets of constitutional proceedings. 16. In 2002 the applicants instituted proceedings in relation to the taking of Plots 41 and 53, complaining under Article 6 of the Convention of a lack of access to court; a lack of a fair hearing within a reasonable time (in respect of the thirty years before the proceedings started and in respect of the current pending proceedings before the LAB), before an independent and impartial tribunal, the latter in that they considered that the LAB’s constitution did not fulfil the said requirements. They further complained under Article 1 of Protocol No. 1 to the Convention about the lack of adequate compensation in relation to the taking; in particular, they noted that the law as it stood referred to values applicable at the time of taking. At the final stages of oral submissions they further argued that the taking had not been carried out in the public interest as it had been given to a commercial entity and that the unused land was to be returned according to the Cachia jurisprudence (see relevant domestic law and practice below). 17. On 20 October 2008, the Civil Court (First Hall) in its constitutional jurisdiction found a violation of Article 6 § 1 of the Convention, in that the applicants had been denied access to court. Indeed, it was only the CoL who could institute proceedings according to domestic law. The fact that recently the law had been applied to allow the applicants to take up proceedings requesting a court to order the latter to act within a time-limit did not detract from the fact that it ultimately remained the duty of the CoL to take up these proceedings, and the affected individuals had no obligation to solicit such an action. Moreover, even in the event that ownership of land was at issue, it referred to the Civil Court’s earlier reasoning in this respect (see paragraph 11 above) and, moreover, considered that the CoL could have instituted proceedings by means of a curator. It awarded them EUR 100,000 by way of damages and dismissed the remainder of their claims. It held that the taking of the two plots of land which were being used for the Freeport had been in the public interest, the latter being an important economic venture for the country. The fact that it was later privatised did not take away the element of public interest, despite the fact that the deed of expropriation had not yet been finalised. Moreover, the one-tenth of the two plots which was outside the Freeport zone which had remained unused could have been used for future development. It failed to take cognisance of the complaint regarding compensation, holding that this had not yet been determined by the LAB. As to the complaint about the length of the proceedings, namely thirty years for the CoL to initiate proceedings, the court held that apart from the fact that this had been related to the previous complaint under Article 6, the provision referred to proceedings which had already begun and had taken an unreasonable time to be finally decided; therefore it was not applicable in the present case which was still pending. Lastly, since the law had been changed, the composition of the LAB clearly satisfied the Article 6 requirements. 18. On appeal, by a decision of 10 July 2009 the Constitutional Court reversed the said judgment in part. It confirmed that there had been a violation of Article 6 in so far as the applicants had been deprived of access to a court but only from the period starting on 30 April 1987, the date when Malta introduced the right of individual petition. It also considered that there had been a violation of the reasonable time principle between 30 April 1987 and 18 April 2000, the date when the compensation proceedings were initiated. It had regard however to the fact that the applicants were also to blame for not having taken up the civil remedy available to solicit the CoL earlier than they had done. Moreover, no proof had been supplied that the proceedings currently pending before the LAB were not satisfying the reasonable time requirement. 19. The Constitutional Court further found a violation of Article 1 of Protocol No. 1 to the Convention. Holding that the public interest had to persist from the date of the taking to the date of the conclusion of the act of expropriation, it considered that even the land which had remained unused had been taken for such a purpose, since the Freeport could reasonably expand to cover such land. Moreover, the privatisation of the Freeport did not detract from the public interest involved. The court further confirmed that it was not in a position to consider the amount of compensation which had yet to be decided by the LAB. However, the fact that the process of expropriation had taken decades had caused the applicants to suffer a disproportionate burden, constituting a violation of the applicants’ property rights. 20. The Constitutional Court reduced the amount of compensation to EUR 20,000, covering moral damage in relation to the said violations and confirmed the rejection of the remaining complaints. 21. In parallel, in 2002 the applicants instituted proceedings in relation to the taking of Plots 2 and 3, with identical complaints to those in case no. 17/2002 (see paragraph 16 above). 22. On 20 October 2008 the Civil Court (First Hall) in its constitutional jurisdiction found a violation of Article 6 § 1 of the Convention, in that the applicants had been denied access to court, and rejected the remaining complaints on the same ground of the judgment in case no. 17/2002 (see paragraph 17 above). It added however that the present case was a more serious breach of the applicants’ right of access to court, as the CoL had failed to institute proceedings even after he was ordered to do so by a court. It thus awarded the applicants EUR 125,000 by way of damages. 23. On appeal, by a decision of 10 July 2009 the Constitutional Court reversed the said judgment in part. It held that the findings of the Constitutional Court in its judgment in case no. 17/2002, applied in the same way in this case, except for the fact that the violation of the reasonable time principle was in respect of the period from 30 April 1987 to the date of this judgment, since the CoL had not yet instituted the relevant proceedings. It awarded the applicants EUR 27,000 in moral damage. 24. Shortly before and during the constitutional proceedings certain developments took place. Domestic jurisprudence developed by means of the Cachia case (see “Relevant domestic law” below); and the Government announced the privatisation of the Freeport, by conceding it on a long-term lease (of thirty years at the price of one million United States dollars (USD) per year, to be augmented over the years to reach a maximum of USD 15,220,000 per year); the jurisprudence in the Cachia case was overturned; and, in 2002 the law was amended to provide a procedure for an individual to initiate compensation proceedings before the LAB in relation to new and recent expropriations. 25. At the hearing of 5 November 2009 the CoL informed the LAB of the outcome of the constitutional proceedings. However, neither the applicants nor their lawyers were present at that hearing; nor were they present at the subsequent five hearings. On 31 January 2011 the applicants requested an adjournment in order to regularise their position. 26. The Land Acquisition (Public Purposes) Ordinance (Chapter 88 of the Laws of Malta), in so far as relevant, reads as follows: Section 3 “The President of Malta may by declaration signed by him declare any land to be required for a public purpose.” Prior to the amendments introduced in 2002, the Land Acquisition (Public Purposes) Ordinance provided that: Section 12 (1) “...the competent authority shall give to the owner a notice ... by means of a judicial act, stating the amount of compensation, as shown in a valuation to be attached to the notice to treat.” Section 13(1) “The amount of compensation to be paid for any land required by a competent authority may be determined at any time by agreement between the competent authority and the owner ...” Section 22 “If the owner shall by a judicial act decline to accept the offer made by the competent authority, the matter shall be brought before the Board by an application to be made by the competent authority, and the Board shall give all necessary orders or directions in accordance with the provisions of this Ordinance.” 27. Article 1078 (b) of the Maltese Civil Code, Chapter 16 of the Laws of Malta, in so far as relevant, reads as follows: “Where the time for the performance of the obligation has been left to the will of the debtor, or where it has been agreed that the debtor shall discharge the obligation when it will be possible for him to do so, or when he will have the means for so doing, the following rules shall be observed: (b) if the subject-matter of the obligation is other than the payment of a sum of money, the time within which the obligation is to be performed shall be fixed by the court according to circumstances.” 28. In Pawlu Cachia vs Avukat Generali u l-Kummissarju ta l-Artijiet (Rikors Nru 586/97, 28/12/2001) the Constitutional Court held, after giving an overview of the applicable principles under Article 1 of Protocol No.1 to the Convention, that whenever the process by which an individual is divested of his property is not concluded, the interference therefore remains one of control of use, the State has the obligation to release the property to its rightful owners as soon as it transpires that there no longer exist grounds on which the State had originally, validly and justifiably taken the measure by which the owner’s use was restricted. It was for the Government to prove that both at the time of the Governor’s declaration and throughout the proceedings until the transfer of the property concluding the expropriation there existed a public interest for the taking of the property. 29. In this case the evidence revealed that for at least four years the competent authorities had actively considered releasing the property to its rightful owners, as it was no longer needed for the purposes for which it had originally been taken. Moreover, decades had passed since the date of the declaration and the present application, and thus the lack of public interest was evident. The Constitutional Court noted that a general interest had indeed existed at the time of the declaration. However, it subsequently emerged that Mr C.’s property would not have been used for that purpose and therefore the Government should have returned the said property. Failure to comply with this latter obligation amounted to a breach of the applicants’ property rights under the Convention.