CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 22 novembre 2011

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .s6CCEAD68 { font-family:Arial; font-weight:bold; color:#ff0000 } .s491F5244 { font-family:Arial; font-style:italic; color:#ff0000 } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sC443675D { margin-top:36pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sD2857263 { margin-top:30pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s8F4EE4B8 { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s93EDF1FF { margin-top:18pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s3C0142D3 { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s507703F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s23957467 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:10pt } .s25F5CC02 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:10pt } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s471F7CE { margin-top:6pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s33C53B69 { margin-top:24pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s360DA689 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sB6F98828 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s2C7B3542 { font-family:Arial; font-size:10pt; color:#0000ff } .s9F223FEE { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8E011338 { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s56E27C8 { margin-top:6pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sC1F0960A { margin-top:24pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-after:avoid } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s60723A49 { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s1E55ED50 { width:27.54pt; display:inline-block } .sF2BC4CC3 { width:192.77pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s780F5245 { border:0.75pt solid #000000; clear:both } .s39BB7472 { margin-top:0pt; margin-bottom:0pt; text-align:justify; border-bottom:0.75pt solid #000000; padding:1pt; font-size:10pt } .s39BE6385 { width:4.23pt; display:inline-block } .sBA727180 { width:35.3pt; display:inline-block } .s4AEB801 { border-bottom:0.75pt solid #000000; padding-top:1pt; padding-right:1pt; padding-bottom:1pt } .s3CA4A1D6 { margin-top:0pt; margin-left:216pt; margin-bottom:0pt; text-indent:-216pt; text-align:justify; font-size:10pt } .s88A1D163 { width:165.95pt; font:7pt 'Times New Roman'; display:inline-block } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super } .sBD3D2134 { margin-top:0pt; margin-left:216pt; margin-bottom:0pt; text-indent:-216pt; text-align:justify; padding-top:1pt; padding-right:1pt; padding-bottom:1pt; font-size:10pt } .s4C4159B1 { margin-top:0pt; margin-left:216pt; margin-bottom:0pt; text-indent:-216pt; text-align:justify; padding-top:1pt; padding-right:1pt; padding-bottom:31pt; font-size:10pt } FOURTH SECTION           CASE OF SALIBA AND OTHERS v. MALTA   (Application no. 20287/10)                     JUDGMENT ( Merits )   STRASBOURG   22 November 2011   FINAL   22/02/2012     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision .   In the case of Saliba and Others v. Malta , The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Nicolas Bratza, President,   Päivi Hirvelä,   George Nicolaou,   Ledi Bianku,   Zdravka Kalaydjieva,   Nebojša Vučinić, judges,   David Scicluna, ad hoc judge, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 3 November 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 20287/10) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by 18 Maltese nationals, Dr Philip Saliba, Sr Maria Saliba, Ms Josanne Galea, Ms Doreen Vella, Mr Mario Sammut, Ms Janine Vella, Ms Mary Anna “Miriam” Saliba, Ms Carmela Saliba, Ms Jane Chadwich, Ms Mariella Holmes, Ms Cynthia Drury, Ms Magdalene Manley, Ms Isabella Grainger, Mr Pio Saliba, Mr Philip Saliba, Mr Joseph Saliba, Ms Veronica Mifsud, and Ms Bernardette Dimech (“the applicants”), on 5   April   2010. 2.     The applicants were represented by Dr Ian Refalo and Dr Sarah Grima, lawyers practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr Peter Grech, Attorney General. 3.     The applicants alleged that the two successive takings of their property had amounted to a disproportionate interference with their rights as protected by Article 1 of Protocol No. 1 to the Convention and that the Constitutional Court proceedings had taken an unreasonably long time to be decided, contrary to Article 6 § 1. 4.     On 17 December 2010 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 5.     Mr V. De Gaetano, the judge elected in respect of Malta, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber accordingly appointed Mr David Scicluna to sit as an ad hoc judge (Rule 29 § 1(b)). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicants were born in 1922, 1920, 1962, 1958, 1955, 1953, 1935, 1933, 1958, 1959, 1968, 1964, 1961, 1962, 1966, 1957, 1962 and 1959 respectively. The ninth, tenth, twelfth and thirteenth applicants live in the United Kingdom, the eleventh applicant lives in the United States and all the other applicants live in Malta. A. Background of the case 7.     The applicants or their ancestors (hereinafter “the applicants”) were owners of half an undivided share of several properties in Senglea, namely, five apartments on the ground floor and an adjacent entrance giving access to another twenty apartments above. At the time when the property was acquired, for the price of 345 pounds sterling (approximately 400 euros (“EUR”)), it was leased and occupied by various third parties. 8.     This property was damaged during the Second World War and war-damage compensation was due to the owners under the War Damage Ordinance. 9.     By a declaration of 27 February 1951 the Government took possession of this property under title of “possession and use” in accordance with the Land Acquisition (Public Purposes) Ordinance (see relevant domestic law). Under this title the owners were paid a yearly acquisition rent of 88 Maltese liras (“MTL”) − approximately EUR 205 for the entire property. This rent was calculated on the rental value declared by the owners to the Land Valuation Office. 10.     Subsequently, without requesting prior consent from the owners and without having the plans of the property as it stood, the Government demolished the property and built a new set of apartments on wholly different plans, using part of the property to widen a road. The Government noted that permission for demolition was not necessary since they had legal possession of the property. At the time since the city of Senglea had been totally bombarded and consisted of a pile of rubble, the Government were engaged in an intensive restructuring and construction exercise, taking possession of properties and rebuilding the area with residences for social accommodation. In doing this the applicants alleged that the Government had also appropriated to themselves the war-damage compensation due to them. The Government considered this allegation to be unsubstantiated. 11.     On 24 September 1991 the owners wrote to the Commissioner of Lands (“COL”) requesting compensation for their property. They suggested the sum of MTL 105,000 – approximately EUR 244,584. Receipt of their request was acknowledged but the claim remained unanswered. 12.     By a declaration of 22 June 1993 the Government acquired the said property under the title of “public tenure” according to the Land Acquisition (Public Purposes) Ordinance (see relevant domestic law). Under this title the owners continued to be paid EUR 205 per year for the entire property. 13.     In the meantime, this property was allocated as housing to third parties and included a shop. 14.     The applicants pointed out that in 1988 the Government had declared that it would no longer be resorting to takings under titles of “possession and use” or “public tenure”. During political debate, the Deputy Prime Minister had in fact referred to such takings as a nefarious method of acquisition. Indeed, in the past twenty years the Government had converted takings under title of “possession and use” or “public tenure” to takings under “outright purchase”. The latter provided for a more favourable form of compensation, namely the market value of the property at the time of taking. The applicants submitted a number of examples reflecting this allegation (for example, Legal Notice nos. 271 and 272 of 2010 converting previous takings to outright purchases, and declaration no. 578 of 31 August 1990 substituting a declaration of taking under possession and use of a few months earlier with an outright purchase, following complaints by the owners. In the latter case the property had also been demolished and rebuilt and was being used for social housing). 15.     The applicants also submitted an expert report valuing the entire property in Senglea at EUR 950,000. Thus, their share as owners of half an undivided share was worth EUR 475,000. 2. Proceedings before the Civil Court in its constitutional jurisdiction 16.     On 13 March 1998 the applicants brought constitutional redress proceedings. Invoking Article 1 of Protocol No. 1 to the Convention and Article 14 they requested that the court find a violation of their rights as a consequence of the actions taken by the COL and to grant adequate compensation. Given the way the application was presented the Government did not plead non-exhaustion in respect of the failure of the applicants to institute proceedings before the LAB. 17.     The case was set down for hearing on 25 March 1998. On 25   September 1998 the court-appointed architect was requested to conduct an on-site inspection to determine whether the property built by the Government was indeed built on the applicants’ property and what use was being made of the ground floor. The report was submitted on 5   January   1999; however, the court-appointed expert failed to draw up an estimate of the value of the property in issue and the applicants’ request for additional terms of reference to be given to the expert was rejected on 16 December 1999 on the basis that the value of the property was irrelevant to the merits of the claim. Subsequently, on 7 September 2001 the case was adjourned pending negotiations regarding the possibility of reaching an amicable solution to the case. This having failed, the proceedings continued on 20 February 2002 at the applicants’ request. On 14 November 2002 the applicants requested the court to make written submissions. On 1 March 2005 the applicants requested that the case be suspended pending the determination of another constitutional case that could have affected the merits of their case. The hearing of submissions recommenced on 22   May   2007. The Government filed their written submissions on 12   September 2007 and the case was scheduled for judgment on 9   October   2007. 18.     By a judgment of 16 October 2008 the Civil Court (First Hall), acting in its constitutional jurisdiction, rejected their claims. It held that, since the applicants were still owners of the said property, the taking under both titles could not be considered a deprivation of property but a control of the use of such property. This control had been necessary in view of the fact that the property had been ruined in the war and that there had been a need to provide social housing in the post-war years. For the same reasons, even assuming that the taking under title of public tenure had been a deprivation of possessions, it would have been in the public interest. In respect of the fair balance required, the court observed that, when the State was pursuing economic reform or social justice, less reimbursement was due than the full market value. While it was true that the recognition rent payable to the applicants was not high and there were no prospects for it to be increased in future years, it was comparable to the rents applicable under the controlled rents regime in force in respect of other old properties. Moreover, in the present case the owners had not been required to incur expenses for the building of the new apartments or for their maintenance and when the property had been originally purchased by the owners’ ancestors it was already rented to third parties to which such regulated rents applied. In consequence, it could not be said that the applicants had borne an excessive burden. The court found that their related complaint under the same provision in respect of the unauthorised demolition could not be examined ratione temporis . 19.     Lastly, as to the complaint regarding the difference in treatment as a result of the taking under title of public tenure as opposed to an outright purchase, the court held that the choice was specifically available to the Government. However, according to the policy in force, takings under titles of possession and use were converted to outright purchases in cases where the properties were used for commercial purposes. Other properties, where the Government wished to keep control of the expropriated property, were taken under title of public tenure. While this choice allowed for a large margin of appreciation, the applicants had not proved that other people in an analogous position had been treated more favourably and it did not appear that the policy had been applied arbitrarily or in a discriminatory fashion in the applicants’ case. 3. Constitutional Court proceedings 20.     On appeal, by a judgment of 6 October 2009 the Constitutional Court upheld the first-instance judgment. 21.     Primarily, it noted that the applicants had been acquiescent for a period of forty years before they ever solicited any action from the authorities or the relevant courts. On the merits, it confirmed that the interference did not amount to a deprivation since quite apart from retaining the title of ownership, the applicants had continued to receive rent in respect of the said property and to have standing to institute proceedings in respect of complaints relating to the property. Thus, not all the legal rights of the owners had been extinguished. 22.     It further noted that the legality of the interference and the public interest involved were not disputed. Indeed, the law (section 12(3) of the Land Acquisition (Public Purposes) Ordinance, prior to its amendment) allowed the State to carry out works on property taken under possession and use, without any specific limitation. Moreover, the property which had been demolished and rebuilt had been taken in a damaged state, and any complaints about the entitlement to war-damage compensation remained unsubstantiated and were irrelevant to the main complaint in issue. 23.     The decision as to under which title the property could be taken fell within the margin of appreciation of the State. As to the fair balance and the relevant amount of compensation, while it was true that a rent of EUR 205 was by today’s standards low for the property in issue, the value of the property had to reflect the values applicable in 1951 and not 2009. It noted that the applicants had not even contested the amount of rent due before the Land Arbitration Board (“LAB”) and that their acquiescence had led to a situation where even if they had wanted to do so, they could not prove the boundaries of the property. However, it was also true that the authorities had failed in their duty to draft a report as to the state and the boundaries of the property before they demolished it and created new plans for it. Thus, at this stage it was impossible to determine the actual boundaries of the property and in this state of uncertainty it was not surprising that the applicants had not taken up the procedure before the LAB. In any event, the court was of the view that the complaint was manifestly ill-founded. 24.     As to the complaint under Article 14, it noted the witness testimony from the Department of Lands to the effect that takings under absolute purchase had occurred, although they generally related to commercial properties; that there had been cases were the Government had acted differently and acquired property by outright purchase following a taking by title of possession and use; that there was no hard policy regulating what type of taking was required in each case; and that to the witness’s knowledge there had been no political or other specific reasons motivating such an action. The court concluded that the fact that it had been established that other property had been taken by absolute purchase was not enough to prove discriminatory treatment and therefore there could not be a violation of the said provision. 25.     The Constitutional Court further criticised the delay of ten and a half years which the first-instance court had taken to decide on the case even though a good part of the delay had been attributable to the applicants who, inter alia , had taken four and a half years to make submissions. 4. Developments after the Constitutional Court proceedings 26.     Following the introduction of the application with the Court (April 2010), on 3 June 2010 the Government issued a declaration that the property was being taken under title of absolute purchase. The property was valued in terms of section 22 of the Ordinance and the compensation offered was that of EUR 168,417.43. II.     RELEVANT DOMESTIC LAW A. Land Acquisition (Public Purposes) Ordinance 27.     Section 5 of the Land Acquisition (Public Purposes) Ordinance (“the Ordinance”), Chapter 88 of the Laws of Malta provides for three methods of acquisition by the Government of private property. It reads as follows: “The competent authority may acquire any land required for any public purpose, either - ( a ) by the absolute purchase thereof; or ( b ) for the possession and use thereof for a stated time, or during such time as the exigencies of the public purpose shall require; or ( c ) on public tenure: Provided that after a competent authority has acquired any land for possession and use or on public tenure the conversion into public tenure or into absolute ownership of the terms upon which such land is held shall always be deemed to be an acquisition of land required for a public purpose and to be in the public interest: Provided also that, subject to the provisions of articles 14, 15 and 16, a competent authority may acquire land partly by one and partly by another or others of the methods in paragraphs ( a ), ( b ) and ( c ): Provided further that where the land is to be acquired on behalf and for the use of a third party for a purpose connected with or ancillary to the public interest or utility, the acquisition shall, in every case, be by the absolute purchase of the land.”   28.     Section 13 regarding compensation reads, in so far as relevant, as follows:   “ (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, saving the provisions contained in subarticle (2).   (2) The compensation shall in the case of acquisition of land for temporary possession and use be an acquisition rent and in the case of acquisition of land on public tenure be a recognition rent determined in either case in accordance with the relevant provisions contained in article 27.”   29.     The Ordinance provides that compensation in respect of absolute purchase is calculated in accordance with the applicable “fair rent”, as agreed by the parties following the Government’s offer or as established by the LAB. In respect of public tenure, section 27(13) of the Ordinance provides as follows: “The compensation in respect of the acquisition of any land on public tenure shall be equal to the acquisition rent assessable in respect thereof in accordance with the provisions contained in subarticles (2) to (12), inclusive, of this article, increased ( a ) by forty per centum (40%) in the case of an old urban tenement and ( b ) by twenty per centum (20%) in the case of agricultural land. 30.     In so far as relevant, section 19(1) and (5) reads as follows:   (1) When land has been acquired by a competent authority for use and possession during such time as the exigencies of the public purpose shall require, the owner may, after the lapse of ten years from the date when possession was taken by the competent authority, apply to the Board for an order that the land be purchased or acquired on public tenure or vacated within a period of one year from the date of the order, and the land shall either be vacated or acquired on public tenure or purchased upon compensation to be determined in accordance with the provisions of this Ordinance or of any Ordinance amending or substituted for this Ordinance. (5) Public tenure shall of its nature endure in perpetuity, without prejudice to any consolidation by mutual consent or otherwise according to law of that tenure with the residual ownership of the land; and the recognition rent payable in respect thereof shall in every case be unalterable, without prejudice to the effects of any consolidation, total or partial. The residual ownership of land held on public tenure with the inherent right to receive recognition rent, shall, for all purposes of law, be deemed to be an immovable right by reason of the object to which it refers and shall be transferable according to law at the option of the owner, from time to time, of that right. 31.     Thus, while a taking under title of “possession and use” is intended for a determinate period of time, a taking under title of “public tenure” is for an indeterminate period of time, possibly forever, and the relevant recognition rent is to remain unaltered for its duration. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 32.     The applicants complained that both takings of their property had amounted to a disproportionate interference with their property rights, particularly in the light of the insignificant amount of compensation paid, the meagre public interest involved and the fact that they had lost the compensation due for war damage. They relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 33.     The Government contested that argument. A.     Admissibility 1. The Government’s objection of non-exhaustion of domestic remedies 34.     The Government contended that the applicants had not instituted proceedings before the Land Arbitration Board to contest the amount of rent they were receiving. It followed that they had not exhausted domestic remedies. 35.     The applicants submitted that there was no use in bringing proceedings before the LAB, since the latter was bound by the law in calculating compensation, and the law provided for ridiculously low amounts. Moreover, they had instituted constitutional redress proceedings which had not resulted in the rejection of their complaint on the ground of non-exhaustion of ordinary remedies. Indeed, even the constitutional jurisdictions had acknowledged that since no plans existed as to what constituted the applicants’ property, such proceedings would have been complicated. 36.     The Court reiterates that according to Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of this rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). Article 35 §   1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI). Thus the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits.   Nevertheless, the obligation to exhaust domestic remedies only requires that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances (see Balogh v.   Hungary , no.   47940/99, § 30, 20 July 2004). The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Mifsud v.   France (dec.) [GC], no. 57220/00, ECHR 2002-VIII). 37.     The Court would emphasise that the application of the rule of exhaustion must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that this rule is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see Akdivar and Others v.   Turkey , 16   September 1996, § 69, Reports of Judgments and Decisions   1996-IV, and Sammut and Visa Investments v.   Malta (dec.), no.   27023/03, 28 June 2005). 38.     In the present case the applicants instituted constitutional proceedings before the Civil Court alleging a breach of their right to the peaceful enjoyment of their possessions. They further appealed to the Constitutional Court against the Civil Court’s judgment rejecting their claim. As the applicants had complained of a breach of Article 1 of Protocol No. 1 in its entirety, the domestic courts examined whether all the requirements of this provision had been complied with, notably the existence of a “fair balance” and of a reasonable relationship of proportionality between the means employed, the aim sought to be achieved and the respect of the individual’s fundamental rights. Indeed, while noting that proceedings before the LAB had not been instituted the courts did not reject the claim for non-exhaustion of ordinary remedies. Having acknowledged that the rent received by the applicants was very low, they nevertheless concluded that the complaint was ill-founded. 39.     The Court considers that, in raising this plea before the domestic constitutional jurisdictions, which did not reject the claim on procedural grounds but examined the substance of it, the applicants made normal use of the remedies which were accessible to them and which related, in substance, to the facts complained of at the European level (see, mutatis mutandis , Fleri Soler and Camilleri v. Malta , no. 35349/05, §§ 39-40, ECHR 2006 ‑ X; and Amato Gauci v. Malta , no. 47045/06, § 35, 15 September 2009). 40.     It follows that the Government’s objection should be dismissed. 2.     Other grounds for declaring the complaint inadmissible 41.     The Court reiterates that its jurisdiction ratione temporis covers only the period after the ratification of the Convention or its Protocols by the respondent State. From the ratification date onwards, all of the State’s alleged acts and omissions must conform to the Convention or its Protocols and subsequent facts fall within the Court’s jurisdiction even where they are merely extensions of an already existing situation (see, for example, Yağcı and Sargın v. Turkey , 8   June   1995, §   40, Series A no. 319-A, and Almeida Garrett, Mascarenhas Falcão and Others v. Portugal , nos. 29813/96 and 30229/96, § 43, ECHR 2000-I). The Court reiterates that the application of legislation affecting owners’ rights over many years constitutes a continuing interference for the purposes of Article 1 of Protocol No. 1 (see, mutatis mutandis , Hutten-Czapska v. Poland [GC], no. 35014/97, § 210, ECHR 2006-...). 42.     The Court notes that the issue raised by the present complaint is the successive takings under different regimes and the amount of rent received by the applicants throughout the relevant periods. It further notes that it has not been contested that such measures constituted an interference with the applicants’ right of property. It follows that the Court is competent ratione temporis to deal with the complaint particularly in so far as it relates to the period following 23 January 1967, when the Convention and Protocol No. 1 entered into force in respect of Malta. 43.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1. The parties’ submissions (a) The applicant 44.     The applicants submitted that the interference constituted a deprivation of possessions as the applicants had been deprived of control over the property. The demolition and rebuilding of the property had not been subject to their approval, and the new construction had been based on totally new plans. Moreover, the property had been held under possession and use for forty-two years, notwithstanding that the law provided that taking under this title was to be temporary. Furthermore, the Government had appropriated the war-damage compensation, which was due to the applicants following payments they had made which rendered them eligible for it. 45.     In any event, the applicants contended that the compensation received by them was unreasonable and disproportionate. The acquisition rent was linked to the property’s rental value prior to the Second World War, it was fixed in time and did not allow for increases reflecting the cost of living and fluctuations in the market, and could therefore not reflect the real value of the property. When this was transformed into recognition rent, it was subject to an increase of 40%; however, the sum still remained very low as this was again dependent on the initial acquisition rent. Again, this sum was fixed in time notwithstanding that under public tenure the property was taken permanently. Thus, as time went by, the rent they received was significantly more inconsequential compared with prices on the open market, the rent being established decades before and not having any prospect of a future increase. These amounts were to be considered a pittance, particularly against the fact that the Government were receiving rent from the current tenants, and that part of the property was being used as a commercial business. The applicants further considered that in their claim for compensation they were at a disadvantage since no plans existed to show what their property used to consist of. 46.     Lastly, they noted that the fact that the Government had, in 2010, chosen to acquire the property under title of absolute purchase could not suffice to correct the situation which they had endured over numerous years. In particular, they noted that the compensation being offered was once again inappropriate. (b) The Government 47.     The Government submitted that the taking under title of possession and use and/or public tenure constituted a control of the use of the property since the applicants had not been divested of their ownership rights. 48.     This taking had been carried out in the public interest. The building had been demolished and rebuilt for the purposes of creating social housing, to provide accommodation for those persons who had been left without as a consequence of the war. Even assuming that a shop had also been built on their property, a matter which the applicants could not prove since they could not submit plans of the delimitations of their property, the shop served the interest of the surrounding community. They claimed that this public interest subsisted to date. They further noted that the applicants had not really contested the aim of the taking before the domestic courts. 49.     The Government submitted that the interference had not imposed an excessive individual burden on the applicants. Indeed the applicants had not instituted proceedings before the LAB to obtain an order that the land be acquired by the Government by title of absolute purchase or public domain, or requesting that the premises be vacated; nor did they contest the amount of rent payable. Thus, any burden suffered had been due to their inertia. Once the property had been taken over under title of public tenure, the rent they received had risen by 40%. Moreover, this calculation had been based on the rental values declared by the applicants, and this was the same rent that would have applied had the property been leased to private tenants. The Government noted that, in the present case, the applicants had no obligation to maintain or repair the premises. Moreover, the premises had been rebuilt entirely at the Government’s expense. It followed that unlike in the case of Hutten-Czapska (cited above), the applicants did not risk making a loss on the rent of the property. 50.     The Government further considered that since the State had incurred the expenses of rebuilding the property, the owners could not recover compensation for works which they had never undertaken. Indeed, according to the law (the then Article 11 (2) of the Ordinance), the Government could carry out any such work on the land which any person having an unrestricted interest in the land would be entitled to do by virtue of that interest. The Government submitted that prior approval by the owners was therefore not called for. 2. The Court’s assessment (a)     Applicable rules in Article 1 of Protocol No. 1 51.     As the Court has stated on a number of occasions, Article 1 of Protocol No. 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, inter alia, to control the use of property in accordance with the general interest. The three rules are not, however, distinct in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among other authorities, James and   Others   v. the United Kingdom , 21 February 1986, § 37, Series   A no.   98; Beyeler v. Italy [GC], no. 33202/96, § 98, ECHR 2000-I; and Saliba v.   Malta , no. 4251/02, § 31, 8   November 2005). 52.     The Court notes that from 1951 to 1993 the property, which was demolished as early as the 1950s, was taken under title of “possession and use”. Under this title, the taking was meant to be temporary. However, the applicants failed to request the termination of the measure or its conversion to an outright purchase, as provided for by law. Thus, the measure under this title persisted for forty years during which time the applicants never lost their right to sell the property and the ownership title was never transferred to third parties; in fact they continued to receive rent from the Government in its respect. Although in the present circumstances the sale was improbable, both because little interest lay in the purchase of property which cannot be used, and because of the fact that the boundaries were not clearly established, 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 as the building was occupied by third parties. 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. 53.     As to the second period, namely after 1993, during which the property was taken under title of public tenure, the restrictions remained the same as above. 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 (see, conversely, Erkner and Hofauer v. Austria , 23 April 1987, § 74, Series A no. 117, and Sporrong and Lönnroth v. Sweden , 23   September 1982, Series A no. 52). The Court reiterates that in the absence of a formal expropriation, that is to say a transfer of ownership, the Court must look behind the appearances and investigate the realities of the situation complained of ( ibid ). In the Court’s view, the measures taken by the authorities were aimed at subjecting the applicants’ property to a continued tenancy in favour of third parties, with a view to eventually taking it from them permanently, as was confirmed by the recent offer (2010) to take the property by means of outright purchase. Therefore, the Court considers that it is possible that the interference over the second period went beyond State control of the use of property, verging on what could be equated to a de facto expropriation. 54.     Nevertheless, the Court notes that the applicable principles are similar, namely that, in addition to being lawful, a deprivation of possessions or an interference such as the control of use of property must also satisfy the requirement of proportionality. 55.     As the Court has repeatedly stated, a fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights, the search for such a fair balance being inherent in the whole of the Convention. The requisite balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth , cited above, §§ 69-74, and Brumărescu v. Romania [GC], no.   28342/95, § 78, ECHR 1999-VII). 56.     The Court notes that in Gera de Petri Testaferrata Bonici Ghaxaq v.   Malta (no. 26771/07, 5 April 2011) which dealt with the same system, the Court, adopting the Constitutional Court’s approach, also concentrated its assesment on the proportionality of the measure. (b)     Whether the Maltese authorities respected the principle of lawfulness 57.     In the present case, it has not been disputed by the parties that the measures were carried out in accordance with the provisions of the Ordinance. The measures complained of, namely the successive takings, were, therefore, “lawful” within the meaning of Article 1 of Protocol No. 1. (c)     Whether the Maltese authorities pursued a “legitimate aim in the general interest” 58.     Any interference with the enjoyment of a right or freedom recognised by the Convention must pursue a legitimate aim. The principle of a “fair balance” inherent in Article 1 of Protocol No. 1 itself presupposes the existence of a general interest of the community (see Broniowski v. Poland [GC], no. 31443/96, § 148, ECHR 2004 ‑ V). 59.     Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the “general” or “public” interest. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures to be applied in the sphere of the exercise of the right of property. Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a margin of appreciation. 60.     The notion of “public” or “general” interest is necessarily extensive. In particular, spheres such as housing of the population, which modern societies consider a prime social need and which plays a central role in the welfare and economic policies of Contracting States, may often call for some form of regulation by the State. In that sphere decisions as to whether, and if so when, it may fully be left to the play of free market forces or whether it should be subject to State control, as well as the choice of measures for securing the housing needs of the community and of the timing for their implementation, necessarily involve consideration of complex social, economic and political issues (see Hutten-Czapska , cited above, §§ 165-66). 61.     Finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, the Court has on many occasions declared that it will respect the legislature’s judgment as to what is in the “public” or “general” interest unless that judgment is manifestly without reasonable foundation (see Immobiliare Saffi v. Italy , [GC], no.   22774/93, § 49, ECHR 1999-V, and, mutatis mutandis , Broniowski , cited above, §   149). 62.     In the present case, the Court can accept the Government’s argument that the measures were aimed at creating social housing, to provide accommodation for those persons who had been left without, as a consequence of the war. Thus, the measures had a legitimate aim in the general interest, as required by the second paragraph of Article 1. (d)     Whether the Maltese authorities struck a fair balance between the general interest of the community and the applicants’ right to the peaceful enjoyment of possessions 63.     In the present case, the Court firstly notes that while the public interest requirement has been met, it is clear that what might have been justified years ago, will not necessarily be justified today (see Amato Gauci , cited above, § 60). Thus, in its balancing exercise the Court will have to determine whether such a measure, to the detriment of owners, is still justified and proportionate sixty years after the war. 64.     The Court notes that the applicants’ property was taken under title of possession and use in 1951 and subsequently under title of public tenure in 1993. It follows that for more than six decades the applicants have not been able to make any use of their property. Throughout the sixty years the owners (the applicants own half an undivided share) have received a rent of not more than EUR 205 per year for a property which consisted, inter alia , of twenty-five apartments. The Court notes a discrepancy in the facts as presented by the parties: while both parties agree that the law provided for a 40% increase for recognition rent vis-á-vis what had been the acquisition rent, the applicants stated that the owners had received E