Failure to pay compensation for the expropriation of company assets for public use violates the ECHR

JUDGMENT 

Β. Tagliaferro & Sons Limited and Coleiro Brothers Limited v. Malta 11.09.2018 (no. 75225/13 and 77311/13)

see here  

SUMMARY

Expropriation for public use and property right. Twenty-five years after the expropriation of two companies’ properties, the public project was not executed. Absence of irrevocable court order for compensation. Infringement of the right to property and right of appeal.

PROVISIONS 

Article 1 of the First Additional Protocol

Article  13

PRINCIPAL FACTS 

The applicant companies, B. Tagliaferro & Sons Limited and Coleiro Brothers Limited, are two
companies registered in Malta in 1966.

The case concerned their complaint that their property had been expropriated for public use, but
that 25 years later the project had still not been carried out and they had never received
compensation for the property.

In 1993 the Government expropriated three properties owned by the applicant companies in
Valletta with a view to using them as government offices, in particular the Office of the Attorney
General. The project was delayed because the premises were occupied by squatters and in the
meantime the relevant building permits expired. In 2007 the premises were vacated and the
Government took over possession. In 2009 the Government issued another declaration for the
expropriation of the properties. However, the relevant building permits not having been issued,
another building in Valletta has most recently been identified and is being refurbished for use as the
Office of the Attorney General. The applicants’ properties remain designated for public use.
The applicant companies instituted constitutional redress proceedings and ultimately in 2013 the
Constitutional Court awarded them 15,000 euros each for non-pecuniary damage for a violation of
their property rights under the European Convention. They were told that if they wanted to seek
material damage, they had to bring separate proceedings before the Land Arbitration Board.

Relying on Article 1 of Protocol No. 1 (protection of property) to the European Convention, the
applicant companies complained that their property had been expropriated without the public
interest requirement ever having been satisfied and that they had still not been paid compensation
for the properties. Further relying on Article 13 (right to an effective remedy) in conjunction with
Article 1 of Protocol No. 1, they also alleged that the compensation they had been awarded by the
Constitutional Court had been inadequate and that constitutional redress proceedings had not been
an effective remedy for the protection of their property rights.

THE DECISION OF THE COURT

Article 1 of Protocol No. 1

Given the circumstances of the present case, it must have been evident years ago that the project was not viable in the then near future. Nevertheless, in 2009, at a time when they already should have known, instead of releasing the property the authorities issued a new declaration. Indeed, even to date, despite the recent change of plan admitted by the Government and thus the extinction of the original public interest in relation to the taking of the applicant companies’ property, the property has not been returned to the applicant companies. Little comfort can be found in the Government’s submission that nevertheless the property at issue remains designated for a public use, which the Government failed to specify or elaborate on. Furthermore, it is indisputable, in the light of the material and submissions before this Court, that the property has seen an increase in value, of which the applicant companies have been deprived.

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 applicant companies, which will in any event be dealt with under the Article 41 section of this judgment, the Court does not find it necessary to examine the adequacy of the compensation offered. It suffices to hold, in this connection, that given that twenty-five years after the taking the applicant companies have not received any compensation they have been required to be bear a disproportionate burden

There has therefore been a violation of Article 1 of Protocol No. 1 to the Convention.

Article 13, in conjunction with Article 1 of Protocol No. 1 to the Convention

In the light of the above considerations, and in view of the domestic judgments brought to its attention on the subject matter, the Court concludes that although constitutional redress proceedings are an effective remedy in theory, they are not so in practice, in cases such as the present one. In consequence, they cannot be considered an effective remedy for the purposes of Article 13 in conjunction with Article 1 of Protocol No. 1 concerning arguable complaints in respect of the taking of property which has not been followed by payment of adequate compensation.

Accordingly, the Court finds that, in the present case, there has been a violation of Article 13, in conjunction with Article 1 of Protocol No. 1 to the Convention.

Just satisfaction: EUR 100,000 each to B. Tagliaferro & Sons Limited and Coleiro Brothers Limited in
respect of pecuniary damage, and EUR 10,000 to B. Tagliaferro & Sons Limited and EUR 4,500 to
Coleiro Brothers Limited in respect of costs and expenses(echrcaselaw.com editing).


ECHRCaseLaw

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