CASE OF CURMI v. MALTA
Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - reserved;Non-pecuniary damage - reserved
David Scicluna;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
6. The applicant was born in 1922 and lives on the Isle of Man. 7. The applicant owned an area of land in Marsaxlokk, Malta, measuring approximately 13,557 sq. m. 8. On 18 March 1988, by means of a President’s declaration made by virtue of Article 3 of the Land Acquisition (Public Purposes) Ordinance, it was declared that the land was required for a public purpose and was thereby being expropriated. According to the Government the site was to be protected as a nature reserve. 9. Following the issue of the relevant permit dated 10 August 1998, in 1999 the boundary of the plot was fenced with a chain-link fence, but no other use has ever been made of the property to date. According to an architect’s report submitted by the applicant the site had been abandoned and allowed to deteriorate. It was completely neglected and not looked after in any way. In consequence the land had been vandalised and the watercourses on the land contaminated by leakages from a nearby pig farm. According to the applicant the land had become a dumping site. The Government contested the veracity of this allegation. 10. The said fencing incorporated an area of land which was effectively larger than that covered by the declaration. In consequence, in relation to this additional land (hereinafter Land B for ease of reference) measuring 362.5 sq. m the applicant claimed that there had been a de facto expropriation which was not in accordance with the law. 11. The entirety of the land was part of the Marsaxlokk Bay Local Plan 1995, which recognised the site as a salt marsh of ecological importance. Nevertheless, the Malta Environment and Planning Authority’s policies authorise development in the area subject to specific conditions. 12. The applicant contended that although the site was declared a Special Conservation Zone in 2005, in 1998 when it was taken there existed no public purpose. In the meantime she was prevented from developing the land in accordance with the relevant policies, since any permit requests she made were refused on the basis of the supposed expropriation. 13. To date, the Commissioner of Lands had not issued a “notice to treat” and the applicant had not received any compensation for the taking of her land. 14. The applicant’s judicial protest of 11 January 2005 requesting the Government to dispossess itself of certain adjoining lands (including Land B) which she claimed had been expropriated illegally, and to pay compensation, was unsuccessful. 15. In 2005 the applicant instituted proceedings before the Civil Court (First Hall) in its constitutional jurisdiction, complaining of a breach of her rights as guaranteed by Article 1 of Protocol No. 1 to the Convention and Article 6. She claimed that no use had been made of the expropriated land, that the taking could not be considered proportionate and that she had not obtained any compensation. Moreover, the delay in initiating compensation proceedings denied her the right of access to court. She further noted that certain adjoining lands were also her property and that notwithstanding her judicial protest of 11 January 2005, which she attached to her application (Rikors promotorju), the State had not taken the desired action. 16. On 4 February 2009 the Civil Court rejected the applicant’s claims. It held that there was no doubt that the land in question was saline marshland that had great ecological importance in Malta. Therefore, its taking for the preservation of a natural reserve had been legitimate and in the public interest. As to Article 6 it held that the applicant could have instituted ordinary proceedings to oblige the Commissioner of Lands to institute proceedings before the Land Arbitration Board (“LAB”) or could have made a request for the relevant Government department to appoint a lawyer to establish the origin of the land. However, she had not taken up any of these procedures. 17. The applicant appealed on the grounds that the public interest upheld by the court was an objective one. However, the Government had failed in the circumstances of the present case to demonstrate how and whether the protection of the said reserve would occur. Moreover, the public interest had to be established at the time of the taking and must persist. However, in the present case the site was declared a Special Conservation Zone only in 2005, seventeen years after the taking and it surely did not persist in view of the state of the land to date. Furthermore, as was clear from the testimony before the first-instance court, the fencing had taken over more land than was covered by the President’s declaration. Thus, as had been argued in the applicant’s submissions, the court should have ordered its release and upheld a violation in the terms explained in her original application (“rikors promotur”). 18. On 26 June 2009, the Constitutional Court found that the applicant’s property rights had not been violated but that there had been a breach of Article 6 in so far as the failure of the Commissioner of Lands to issue a “notice to treat” amounted to a lack of access to court. It awarded the applicant 2,000 euros (EUR) in respect of non-pecuniary damage. 19. The Constitutional Court reiterated that the public interest should persist from the moment of taking the land to the moment when the Government obtained ownership of the land on conclusion of the expropriation procedure. It considered the evidence produced, in particular the witness testimony of the Commissioner of Lands, stating that the Environment Protection Department had requested that such land be expropriated; Departmental correspondence related to the use of the land evidencing that because fencing had been built the property should not be released, whereas it would have been otherwise had nothing been done on site; photographs of the state of the land when it was being taken care of by the applicant’s ancestors; and the witness testimony of an employee at the MEPA who classified the land as saline marshland (Mediterranean sea meadows) hosting rare and healthy flora and fauna communities. He further stated that the land was in a good state although the man in the street might deem otherwise due to the appearance of salt marshes and that the department had added certain species to the site in order to avoid erosion and had carried out engineering works to improve the state of the pools therein. In this light, and having considered subsequent structural plans and assessments confirming the necessity of protecting the biodiverse site, the court held that the taking of the land had been in the public interest, which persisted, notwithstanding that no construction had taken place. It was in fact the aim of the taking of the land to leave the site in its original state, a state which could not have been guaranteed if it had been left in the hands of private individuals. 20. In respect of Land B of the land, while noting that the Commissioner of Lands did not contest the allegation and was willing to give the relevant portion back to the applicant, the court found that the applicant had not made any request in this respect in her application (“rikors”) to the court. It noted that the court had to decide on the case as presented in the application which fixed the parameters of a case at issue. Indeed in the present case no request for rectification of the application had been made in order to include this complaint. The court therefore rejected this ground of appeal. 21. Under Article 6 it held that the applicant, who became aware of the expropriation in 1999, had not solicited the action of the authorities. Nevertheless, it was unacceptable that the Commissioner of Lands, who had the duty to take action, had, in twenty years, failed to pay compensation, or at least to make an offer of such. In consequence this amounted to a violation of Article 6 for lack of access to court. 22. The Land Acquisition (Public Purposes) Ordinance (Chapter 88 of the Laws of Malta) in so far as relevant read as follows: Section 3 “The President of Malta may by declaration signed by him declare any land to be required for a public purpose.” Section 7 “The competent authority may deal with and dispose of land acquired by it in such manner and subject to such conditions as it considers expedient having regard to the public interest or utility.” 23. Articles 2 and 3 of subsidiary legislation 12.09 regarding court practice and procedure and good order rules, read as follows: Article 2 “Proceedings before the Civil Court, First Hall, under article 46 (1) of the Constitution of Malta and under article 4 (1) of the European Convention Act and proceedings before the Constitutional Court in cases referred to in article 95 (2) of the Constitution of Malta shall be instituted by application.” Article 3 “(1) An application before the Civil Court, First Hall, shall state concisely and clearly the facts out of which the complaint arises and shall indicate the provision or provisions of the Constitution of Malta or of the European Convention for the Protection of Human Rights and Fundamental Freedoms alleged to have been, to be or likely to be contravened. (2) The application shall also specify the redress sought by the applicant: Provided that it shall be lawful for the court, if the application is allowed, to give any other redress within its jurisdiction which it may consider to be more appropriate. (3) In cases referred to in article 95 (2) (a) of the Constitution of Malta, the application before the Constitutional Court shall state clearly and concisely the circumstances out of which the question arises, the demand and the provision or provisions of the Constitution or of any other law on which the applicant relies. (4) In cases referred to in article 95 (2) (c), (d), (e) and (f) of the Constitution of Malta, the application shall state clearly and concisely the circumstances out of which the appeal arises, the reasons of appeal and the prayer for the reversal or a specific variation of the decision appealed from. (5) Default of compliance in the application with the requirements of sub-rules (1), (2), (3) and (4) shall not render the application null; but the court may, in any such case, order the applicant to file, within such time as the court shall fix, a note containing the particulars required and the costs of such order shall be borne by the applicant.” 24. Article 1078 of the Civil Code (Chapter 16 of the Laws of Malta), in so far as relevant, read 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: (a) if the subject-matter of the obligation is the payment of a sum of money, such obligation shall be performed within two years, if the sum is due without interest, or, within six years if the sum is due with interest; (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.”