CASE OF VASSALLO v. MALTA
Violation of P1-1;Remainder inadmissible;Pecuniary damage  - reserved
Geoffrey Valenzia;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
6. The applicant, Victoria Vassallo, is a Maltese national who was born in 1954 and lives in Zebbug, Malta 7. The applicant is one of eleven owners of a piece of land in Birkirkara, Malta, having an area of 1,578 square metres (“sq.m.”). 8. The land was the subject of a declaration by the Governor General dated 29 November 1974, stating that it would be expropriated for a public purpose. The public purpose intended was a social housing project. 9. At the time, the initiation of compensation proceedings was an action which could only be undertaken by the authorities and to which no time-limit applied. However, in the 1990s domestic case-law confirmed that the ordinary courts had the competence, upon a request made by persons in the applicant’s position, to set a time-limit for the performance of the obligation by virtue of Article 1078 of the Civil Code, a long-standing provision. 10. Following twenty-five years of silence on the part of the authorities, on 9 February 1999 the Government issued a notice to treat and offered the owners of the land 5,600 Maltese liri (MTL), approximately 13,045 euros (EUR). This reflected the value (on the date of valuation) of the property as agricultural land, including some rural structures according to an independent architect’s evaluation commissioned by the Government on 21 November 1998. The owners refused this offer and proceedings were initiated before the Land Arbitration Board (“LAB”) to assess the amount of compensation due. These proceedings are still pending to date since they have been suspended pending the completion of the ordinary and constitutional proceedings instituted (see below). 11. From 1974 to 2000 the property remained unused. On 1 December 2000, pending the proceedings mentioned below, the authorities ordered the restitution to the owners of part of the land measuring 324 sq.m., which was eventually released in 2002. On 2 April 2002 the applicant and the other owners signed a sworn declaration to the effect that no further claims for compensation or damages would lie in respect of this piece of land. 12. The remaining land (1,254 sq.m.) was kept by the authorities with the aim of building a social housing project. In 2002 the Government started constructing apartments and maisonettes. While the price offered for the remaining land still has to be apportioned by the LAB, the Government estimated that a fair pro rata value would amount to MTL 4,450, approximately EUR 10,369. 13. On 14 May 1999 the applicant’s predecessor instituted ordinary civil proceedings. He contended that the order of expropriation had not been made for a public purpose, since the land had remained unused and the purpose put forward, namely the construction of housing units for third persons, could not be considered to be in the public interest. In consequence, they requested that the expropriation be declared null and void. 14. On 5 March 2004 the Civil Court dismissed the claim, holding that it had not been proved that the expropriation had been in contravention of the law, namely the Land Acquisition (Public Purposes) Ordinance. 15. No appeal was lodged against this judgment. 16. On 23 July 2004 the owners of the land (including the applicant) instituted constitutional redress proceedings. They claimed a violation of their rights under Article 1 of Protocol No. 1 to the Convention in that the expropriation had not been carried out for a public purpose, since the land had remained unused for twenty-five years and the purpose put forward, namely the construction of housing units for third persons, could not be considered to be in the public interest. They further argued that the measure had not been proportionate in view of the compensation offered and that they should be compensated according to the market value of the land at that date. 17. On 20 October 2008 the Civil Court (First Hall) in its constitutional jurisdiction found a violation of Article 1 of Protocol No. 1 to the Convention and awarded the owners EUR 50,000 in compensation for non-pecuniary damage. It held that the land had originally been taken in the public interest, namely for the housing project, construction of which, however, had only recently started. However, this public purpose had not been pressing, since the land had remained unused for twenty-five years, during which the authorities had not initiated compensation proceedings. In consequence the owners’ property rights had been breached. Lastly, noting that the owners were not calling into question the relevant compensation provisions of the law, but simply arguing what compensation should be payable, it refused to take cognisance of the claim regarding compensation for pecuniary damage, since the amount payable still had to be determined by the LAB. The expenses were to be borne by both parties. 18. By a judgment of 30 April 2009, the Constitutional Court, on appeal, altered the first-instance judgment in part. While considering that a public interest had existed originally, and had persisted since indeed some apartments had eventually been built, it confirmed that there had been a delay on the part of the authorities in initiating proceedings, which had been to the detriment of the owners, and this constituted a breach of their property rights. However, it noted that although the owners had an available remedy to speed up the process, they had done nothing about it. In consequence, while upholding the finding of a violation, the Constitutional Court reduced the award in respect of non-pecuniary damage to EUR 15,000. It further confirmed that the complaint regarding compensation for pecuniary damage was premature, that issue still having to be determined by the LAB. It ordered the expenses to be borne by both parties. 19. 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.” 20. 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 the circumstances.”