The unauthorized demolition of a building, privately owned by the State authorities and the subsequent compulsory expropriation, without the payment of prior compensation, infringed the right to protect the applicants’ property.
Zammit and Vassallo v. Malta 28.05.2019 (no. 43675/16)
Illegal demolition of a building. Expropriation. Non-payment of appropriate compensation. Withholding rights to use and expropriation property, and forced expropriation of property. The applicants were deprived of their ownership of a building which was initially unlawfully demolished by the competent authorities and then the property was assigned for public use. Failure to pay adequate compensation in the sense of rent for deprivation of use and non-payment of prior compensation despite the declaration of expropriation. The ECtHR ruled that there was a violation of property / property protection (Article 1 of the First Additional Protocol) because the owners were deprived of their property, which had been subject to successive regimes, possession and use, and subsequent compulsory expropriation, without payment of compensation. This has disturbed the equilibrium between the requirements of the public interest and the protection of the fundamental right to the protection of the property of the individual.
Article 1 of the First Additional Protocol
The applicants, Anthony Zammit, Josephine Mary Vassallo, Carmelo Zammit, Jane Zammit, Maria
Theresa Zammit, Mary Zammit, and Stephen Zammit, are Maltese nationals who were born in 1947,
1957, 1936, 1934, 1931, 1939, and 1962 respectively and live in Tarxien (Anthony Zammit and
Stephen Zammit), Birkirkara (Josephine Mary Vassallo), Balzan (Carmelo Zammit), and Paola (Jane
Zammit, Maria Theresa Zammit, and Mary Zammit) (all in Malta).
The case concerned the applicants’ complaint of a lack compensation for the demolition and
successive takings of their property under various titles.
The Maltese authorities took over the applicants’ property in April 1989 and sometime later it was
demolished. In October 1989 the property was taken over under title of possession and use and in
1991 under title of public tenure.
In 1999 the Commissioner of Land offered approximately 36.39 euros (EUR) per year in rent for the
property, but the applicants refused. Subsequent proceedings before the Land Arbitration Board
(LAB) did not end until March 2012, when the LAB set a fixed rental rate of EUR 158.40 a year.
Subsequent constitutional redress proceedings, held at first instance and on appeal, ended in
The Constitutional Court ruled that when the demolition had occurred it had been unlawful,
however, that unlawfulness had been sanctioned when the State had acquired the property under
title of public tenure. However, a breach of the applicants’ property rights had occurred since no compensation had been paid since 1989. It awarded EUR 1,500 in respect of non-pecuniary damage, lower than the sum determined by the first-instance court.
Relying on Article 1 of Protocol No. 1 (protection of property) to the European Convention on
Human Rights, the applicants complained that they had suffered de facto expropriation by the
Maltese government and that the redress provided by the courts had not redressed the damage
they had suffered.
THE DECISION OF THE COURT
In the present case it is not disputed that the property was indeed demolished. The Court considers that such demolition amounted to a de facto expropriation of, at least, the building erected on the relevant land, no matter its state or condition . The Court further notes that as held by the Constitutional Court and as transpires from the evidence and submissions before this Court, the demolition took place before the taking under title of possession and use which was ordered by means of a President’s declaration of 27 October 1989, thus, at a time when the Government had simply occupied the property but had no title to it. It follows that, as held by the Constitutional Court, the demolition was unlawful. Moreover, as also held by that same court, even had it been demolished when it was under title of possession and use, the demolition would still have been unlawful, since according to law it was not possible to demolish a property under a title of possession and use, the rights attached to which were limited. That having been established it is unnecessary for this Court to consider whether the demolition pursued a legitimate aim, or whether the measure was proportionate. The Court notes that the applicants have not been compensated in any way for the unlawful demolition of their property.
From October 1989 to October 1991 the property was taken under title of possession and use. Under this title, the taking was meant to be temporary and in fact lasted for only two years during which time the applicants never lost their right to sell the property and the ownership title was never transferred to third parties. Although in the then obtaining circumstances a sale was improbable, the Court cannot accept that the measure complained of amounted to a de facto expropriation. However, the applicants’ right of property was severely restricted: they could not exercise the right of use in terms of physical possession. Thus, this constituted a means of State control of the use of property, which should be examined under the second paragraph of Article 1 of Protocol No. 1
In October 1991 the property was taken under title of public tenure and the restrictions remained the same as above described. However, the Court observes that public tenure implies that the property is taken permanently. Consequently, the applicants were not simply restricted in, or temporarily deprived of, their use and enjoyment of the property. The Court has already held that in such circumstances it is possible that such interference could be equated to a de facto expropriation
As to the taking under possession and use, the Court notes that it is not disputed that the law provided for a 40% increase for recognition rent (applicable for the purposes of public tenure) vis-á-vis what had been the acquisition rent (applicable for the purposes of possession and use) . It follows that the applicants should have been paid approximately EUR 113 annually for the two years during which their property was taken under this title. In respect to this amount, the fact that, as argued by the Government, the rent received was in line with the rent laws applicable on the island, does not favour the Government’s case. Indeed, the Court has on various occasions held that legislation regarding controlled rents in Malta was in breach of Article 1 of Protocol No. 1. However, in the present case, it is not necessary for the Court to decide whether, given the legitimate aim and the value of the property at the time when it was held under title of possession and use such compensation was sufficient, as the applicable acquisition rent was never determined by the LAB nor paid to the applicants.
As to the time during which the property was held under public tenure, against an annual recognition rent of EUR 158.40, the Court considers that having regard to the legitimate aim and the value of the property (the remaining land) in the light of the applicant’s own valuations, it can accept that such a rent was reasonable in 1991 and subsequent years, but it is unlikely to be so today, three decades later. The Court reiterates that what might have been justified years ago, will not necessarily be justified today. It suffices for the purposes of the present case for the Court to find that since the recognition rent established for the taking under public tenure was not subject to any future increases despite developments in the property market, such compensation decades after the initial taking is disproportionate. More importantly, that recognition rent had not been paid until the Constitutional Court judgment and seems to have remained unpaid at least until the time of the introduction of the application, that is, nearly thirty years after the taking.
In the present case, having regard to the impossibility of the applicants ever recovering their property, which has been subject to successive regimes (possession and use and subsequently public tenure) and the amount of rent (at least over the most recent years since 2015) which was, moreover, for decades, not paid to the applicants, the Court finds that a disproportionate and excessive burden was imposed on the applicants. The latter were required to bear most of the social and financial costs of supplying housing accommodation to third parties. It follows that the Maltese State has failed to strike the requisite fair balance between the general interests of the community and the protection of the applicants’ right of property.
In view of all the elements above the Court finds that there has been a violation of Article 1 of Protocol No. 1.
Just satisfaction: 18,000 euros (EUR) (pecuniary damage), EUR 8,500 (non-pecuniary damage) and
EUR 7,500 (costs and expenses) to the applicants jointly( echrcaselaw.com).