CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 7 juillet 2020

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margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:10pt } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4B8D41EE { font-family:Arial; font-size:10pt } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic } .s5CDE02A6 { font-family:Arial; font-size:10pt; text-decoration:underline; color:#0072bc } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }   THIRD SECTION CASE OF SCERRI v. MALTA (Application no. 36318/18)   JUDGMENT   Art 1 P1 • Peaceful enjoyment of possessions • No compensation received for an expropriation that occurred more than fifty years ago • Compensation on the basis of 1961 categorisation as agricultural land not in itself inadequate • Length of time during which the applicants remained without compensation to be taken into account • Compensation not received • Requisite balance not struck Art 6 (civil) • Impartial tribunal • Issues determined by the same three judges who sat on the Court of Appeal and again on the Constitutional Court concerning the same persons and facts as well as intrinsically-linked issues • Judges of the Constitutional Court deciding whether they themselves, by their decision in the Court of Appeal, had contributed to the breach of the applicants’ human rights • Applicants’ fears objectively justified   STRASBOURG 7 July 2020   FINAL   07/10/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Scerri v. Malta, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Paul Lemmens, President,   Georgios A. Serghides,   Helen Keller,   Alena Poláčková,   Gilberto Felici,   Erik Wennerström,   Lorraine Schembri Orland, judges, and Olga Chernishova, Deputy Section Registrar, Having regard to: the application (no.   36318/18) 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 four Maltese nationals, Ms Nikolina Scerri, Mr Joseph Scerri, Mr Mario Scerri and Mr   Raphael Scerri (“the applicants”), on 24 July 2018; the decision to give notice to the Maltese Government (“the Government”) of the complaints concerning Article 1 of Protocol No. 1 to the Convention, alone and in conjunction with Article 14, about the low amount of compensation awarded to them for their land; as well as the complaint under Article 6 § 1 of the Convention that the Constitutional Court had not been impartial; the parties’ observations; Having deliberated in private on 9 June 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION The case concerns the compensation due in relation to an expropriation, in respect of which the applicants claimed to have been discriminated against, as well as the alleged partiality of the Constitutional Court. THE FACTS 1.     For details about the applicants, see the table in the annex. The applicants were represented by Dr E. Borg Costanzi and Dr P. Borg Costanzi, lawyers practising in Valletta. 2.     The Government were represented by their Agent, Dr Peter Grech, Attorney General, and subsequently by their Agent Dr Victoria Buttiġieġ, State Attorney. 3.     The facts of the case, as submitted by the parties, may be summarised as follows. THE CIRCUMsTANCES OF THE CASE Background to the case 4.     By means of a Governor’s Declaration published in the Government Gazette in 1961, the applicants’ agricultural land in Safi (as well as other land not belonging to the applicants) was declared to be needed for a public purpose under the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta (“the Ordinance”). 5.     The Government took physical possession of the land in 1993 to construct a school (with its grounds) and roads. 6 .     A “notice to treat” was sent to the applicants on 14 January 2003, describing the land, measuring 665 square metres (“sq.m.”), as touching another property at its south-west side and a road on the east side. Compensation was offered on the basis of its status as agricultural land in 1961 i.e. 1,490   Maltese liri (MTL), approximately 3,471 euros (EUR). According to the valuation report of 5 December 2002, the land then formed part of the extension of the grounds to the school and had previously formed part of a larger surface and was therefore agricultural land in terms of the Ordinance. 7 .     The amount of compensation was refused by the applicants in February 2003, who considered that given the lapse of time they should be compensated on the basis of the value in 2003, when they considered it to be developable land since it was close to a school, and in view of its potential, was worth MTL 120,000, approximately EUR 279,525. Thus, in the same year, proceedings were initiated before the Land Arbitration Board (“LAB”), which, by a decision of 15   October 2009, established the compensation as being EUR   20,134 plus interest according to law, on the basis of a report by the experts, who visited the site, which designated the land as agricultural according to the Ordinance. The LAB noted that, the two experts having been unanimous, it was bound to adopt their findings according to Section 25 (5) of the Ordinance. It thus ordered the parties to proceed to conclude the contract transferring ownership. 8.     During these proceedings the applicants had argued, based on documents they submitted to the LAB, that property in the vicinity had been expropriated at much higher values. In particular, in 2007 and 2003 respectively, A.Z. had been paid EUR 104,356 for land measuring 186   sq.m.; and family Z. had been paid EUR 64,757 (plus EUR 71,125.09 in interest calculated at 5 % from 4 February 1981) for only part of a piece of land measuring 615 sq.m. 9.     The parties appealed before the Court of Appeal (consisting of three judges). The applicants complained primarily that the land had been valued as being agricultural, and secondly that, in any event, the price per square metre as calculated by the architect had been erroneous. They noted that the LAB had simply rubberstamped the experts’ report, which had not explained why the land was deemed to be agricultural and not developable. Indeed, the LAB had been bound by law to follow the experts, thus denying the owners an effective review by a court. Moreover, no consideration had been given to the passage of time when determining compensation, thus breaching the applicants’ property rights. 10 .     According to the Court of Appeal, the applicants, in particular, complained that the experts had not substantiated why the land was considered to be agricultural. In that regard the applicants argued that, given that another piece of land expropriated by the same declaration had been considered as being developable and that their land fell within a development scheme, both under the old law and the new one, the land had to be considered as developable land. They considered that the compensation awarded was ridiculous and that, even assuming it had to be considered as agricultural land, it had to attract higher compensation in the light of other factors such as the locality and the price of adjacent property. Furthermore, it had not been fair that compensation proceedings had started only forty years later and yet they were being compensated on the basis of a declaration of 1961, because in their case (unlike others) no new declaration (accompanied by a new valuation) had been issued in breach of their rights under Article 6 of the Convention in conjunction with Article 1 of Protocol   No. 1. They asked the Court of Appeal to revoke the valuation of the experts subject to, if necessary, a declaration as to the characterisation of the land and the criteria to be used; to quash the LAB’s decision and refer it back, and in the alternative, to vary the LAB’s decision augmenting the compensation awarded. 11.     During these proceedings a request by the applicants for a constitutional reference in relation to claims under Article 1 of Protocol   No.   1 to the Convention, alone and in conjunction with Article 14 (concerning the compensation) and Article   6 (length of proceedings), was rejected by the Court of Appeal by means of an interlocutory decision of 6   May 2013. The Court of Appeal considered that the claims were frivolous and vexatious as the applicants had not yet exhausted ordinary remedies, namely the proceedings on appeal where their claims on the merits could still be accepted. 12 .     By a judgment of 29   November 2013 the Court of Appeal (in the main proceedings) rejected the applicants’ appeal and confirmed the first ‑ instance decision. It noted that the LAB’s decision being dated 15   October 2009 the applicable procedural law was the one before the amendments of 2009 (Act XXI of 2009 of 1 December 2009 amending various laws related to civil matters - in particular revoking the limitation on appeals which could previously be lodged solely on points of law); thus, that the applicants could only appeal on points of law (Section 25 (7) of the Ordinance [as stood before 2009]); and that the experts having been unanimous in their valuation, the Chairman of the LAB was bound by law to follow their findings. 13.     The Court of Appeal considered that, in so far as this was a point of law, the lack of any reasoning by the experts as to the land being considered as agricultural did not vitiate the LAB’s decision, since the experts had been unanimous and the LAB had to follow their findings in accordance with the law. The Court of Appeal noted that the experts had stated in their report that the land was agricultural “according to the Ordinance”, and in the minutes of their site visit they had also stated that “they took account of the locality and considered other factors”. The Court of Appeal, noting that the law left such an evaluation in the hands of the experts, considered that it could not be said that their unanimous evaluation was arbitrary. 14 .     The Court of Appeal also considered that it could not deal with the pleas in relation to the lack of a proper evaluation by the experts; the higher compensation awarded to others; and the fact that they were being compensated at the value of 1961 despite proceedings being undertaken forty years later, as these were not pleas on points of law. However, on the last mentioned plea, it found it opportune to note that the Government having taken possession of the land at the time of the issuance of the declaration (sic.), it was understandable that compensation had to be calculated on the basis of its value then. Constitutional redress proceedings 15 .     On 25 May 2013 the applicants instituted constitutional redress proceedings complaining under Article   1 of Protocol No.   1 to the Convention, alone and in conjunction with Article   14 and Article   6 of the Convention, about the lack of access to court/length of proceedings (1961 ‑ 2013). They argued that they had been severely prejudiced by the delay in payment of compensation, as a result of which the land had become developable when the notice to treat was issued. Yet they had been paid the price of the land (as agricultural) in 1961, while they considered that they should have been paid the price of the land in 2003 – the date of the notice to treat. In fact, adjacent land subject to the same circumstances had been revalued in the light of development potential, but not the applicants’, they had thus also been discriminated against (on political grounds). 16 .     During the proceedings the architect’s report of 5 December 2002, as well as the report of the LAB experts (see paragraphs 6 and 7 above), were submitted to the court and a Government employee also gave evidence. He considered that, as evident from the aerial photographs of 1957, the land was agricultural land, as it did not satisfy the requirements to be classified as developable land under Section 18 of the Ordinance in force at the date of the expropriation. In particular it had no frontage on a road, was not in a built up zone and it was not situated at less than 91.5   metres of a built up zone. First-instance 17.     By a judgment of 10   October 2016 the Civil Court (First Hall) in its constitutional competence found a violation of all the provisions relied on and awarded pecuniary damage in respect of the violation of Article 1 of Protocol No. 1 in the amount of EUR 270,000 (based on a valuation dated 5   December 2014, by an expert appointed by the Commissioner of Land, of the land as it stood in 2013, plus interest from 2014 to date of contract). The Civil Court (First Hall) in its constitutional competence considered that the applicants had to be paid compensation on the basis of its designation as building land, as had been the case for others who had similar properties in the area and who had been subject to the same measure. It also awarded EUR   10,000 in non ‑ pecuniary damage for the breaches of Articles   6 and 14 in conjunction with Article 1 of Protocol No 1. The applicants were to pay no costs. 18.     In particular it found that the delay to issue the notice to treat – during which time the applicants had no access to court to pursue compensation proceedings – had breached the applicants’ rights under Article 6 of the Convention, as of 1987 i.e. the date of the introduction of individual petition in Malta. It also found that the compensation offered was not adequate and if paid, together with interest, for the expropriation, would breach the applicants’ property rights. In particular the court considered that in 2002 when the architect drew up the report for the notice to treat to be issued, the land was no longer agricultural but had become developable, satisfying the conditions stipulated in the law. It was therefore not just for the architect and later the LAB experts to award the value on the basis of it being agricultural land. 19 .     In relation to the complaint concerning discrimination the court considered that the applicants were not in the same situation as another family (A.Z.) who had been paid compensation in 2007 for land (measuring 187 sq.m.) which had been taken much later than 1961. The same could not be said about the situation of family Z. – in relation to a parcel of land (measuring 615 sq.m.) situated near that of the applicants and which had also been taken in 1961 at a time when it was agricultural land – whereby, despite being in an analogous situation, family Z. had been paid, in 2003, EUR 64,757 for 615 sq.m. of land while the applicant had been offered, in the same year, EUR 3,470 for 655 sq.m. (later valued at EUR 20,134 by the LAB). There had been a substantial difference in the values offered and no reasonable justification for such a difference in treatment. Appeal 20 .     The parties appealed to the Constitutional Court, consisting of the same three judges who had decided the applicants’ civil case on appeal. The applicants challenged the judges and requested their withdrawal, relying on Article 734 (1) (d) of the Code of Organisation and Civil Procedure (see paragraph 30 below). 21 .     By an interlocutory decree of 20   February 2017 the applicants’ challenge was rejected by the same judges on the basis that the first case had concerned civil issues while the current one concerned constitutional issues. 22 .     By a judgment of 26 January 2018 the Constitutional Court confirmed the violation of Article 6 and awarded EUR 7,500 in non ‑ pecuniary compensation in this respect, but revoked the rest of the first ‑ instance judgment finding no violation of Article 14 (as the comparator was not in a similar situation – the latter’s property having been classified as building land for the purposes of compensation) and no violation of Article 1 of Protocol No.   1, considering, however, that the compensation should be augmented to EUR   26,093 based on the guidelines set out in Schembri and Others v.   Malta ((just satisfaction), no.   42583/06, 28   September 2010) to which had to be added interest,   as provided by domestic law, on the date of transfer which was to be not later than three months from date of judgment. 23.     In relation to the Article 14 complaint the Constitutional Court considered that the first-instance court should not have acted as a third instance court reversing the finding by the experts (who had considered that the land was agricultural) and therefore finding that the situations of the two cases were analogous. The applicants had not challenged the law by means of which their land was deemed to be agricultural, thus the LAB’s decision to that effect was binding. This was the case irrespective of the new valuation dated 5 December 2014 by the expert appointed by the Commissioner of Land. Moreover, the mere fact that the applicants’ land was in the same area, did not mean that both could be developed. 24 .     As to Article 1 of Protocol No. 1 the Constitutional Court noted that the applicants were not contesting the lawfulness of, or the public interest behind, the measure but its proportionality. The Constitutional Court disagreed with the applicants that they were to be paid the value of the land as developable since it had changed designation over the years, noting that it had not been contested that the land was agricultural in nature in 1961, nor had there been a challenge to the applicable law, the applicants’ argument being limited to the assessment by the experts which was final ( res judicata following the LAB’s decision confirmed by the Court of Appeal). It considered that the European Court of Human Rights’ case-law made it clear that the value to be taken into account was that at the time of the taking of the land which had to be updated at the date of payment, and interest should be paid as from the date of taking, in line with the methodology provided by the Ordinance. 25.     The applicants were made to pay half the costs of the entire proceedings, in view of their failed claims. 26 .     Following this judgment the applicants wrote to the authorities to receive the payment due, however only an acknowledgment was received and to date of submissions (2020) the applicants had not yet received any compensation. RELEVANT LEGAL FRAMEWORK The Land Acquisition Ordinance 27.     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.” 28.     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 17 “Any land which is not a building site shall be valued for the purpose of determining the compensation payable in the case of compulsory acquisition as rural land or as wasteland, as the case may be.” Section 18 “(1) Land shall be deemed to be a building site for the purposes of this Ordinance if it has a frontage on an existing street and is situated within a built up area or, subject to sub section (2) of this section, within a distance of not more than ninety-one and a half metres of a built up area, measured along the axis of the street. (2) In determining whether land is a building-site by reason of the fact that it is situated within a distance of not more than ninety-one and one half meters of a built up area regard shall be had to the probable immediate expansion of the built up area in the direction of the land in question. (3) Land falling within the definition of subsection (1) or (2) of this section shall be deemed to be a building site to a maximum depth of twenty-five metres.”   Section 17 (as amended in 2006) “Any land which is not a building site shall be valued for the purpose of determining the compensation payable in the case of compulsory acquisition as rural land or as wasteland, as the case may be; Provided that in determining such compensation, consideration shall be given to the value of any structures existing thereon and whether such structures are covered by a permit according to law.” Section 18 (as amended in 2006) “(1) Land shall be deemed to be a building site if it falls within the limits of a building scheme or as indicated and approved for development in a Structure Plan or subsidiary plan which has been adopted for the time being in force under any law relating to planning. (2) In determining the compensation due for a building site, consideration shall be given to the use or development that can be made thereof or thereon in accordance with the provisions of subarticle (1).” Section 18A (introduced in 2006) concerning the valuation of land expropriated prior to 2003 “Notwithstanding the provisions of this or any other law, the value of any land – (a) still in the course of acquisition on the 1 st January 2005 (b) in respect of which a declaration under article 3 was issued before the 5th March 2003, and (c) in respect of which a notice to treat was not issued before the 1st January 2005 under the provisions of this Ordinance as in force before the date mentioned in this paragraph, shall, saving any interests due until payment is made under sub-article (3) of article   12 of this Ordinance, be its value as on the 1st January 2005.” 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.” 29.     The amendments introduced in 2002 by means of Act XI of 2002, provided, in so far as relevant, that compensation should no longer be paid on the basis of the date of the ‘notice to treat’ but on the basis of the date of the ‘Presidential Declaration’. Its transitory provisions also provided that interest would be paid as from the date of the Presidential Declaration and: “For the purposes of determining whether land is to be valued as a building site, agricultural or rural land or waste land for the purposes of this sub-article the relevant date shall be the date when the original Declaration was issued by the President before the coming into force of this article.” The Code of Organisation and Civil Procedure 30.     Article 734 of the Code of Organisation and Civil Procedure concerning the grounds for challenge or abstention of a judge, reads as follows: “(1) A judge may be challenged or abstain from sitting in a cause - ( a ) if he is related by consanguinity or affinity in a direct line to any of the parties; ( b ) if he is related by consanguinity in the degree of brother, uncle or nephew, grand-uncle or grandnephew or cousin, to any of the parties, or if he is related by affinity in the degree of brother, uncle, or nephew, to any of the parties; ( c ) if he is the tutor, curator, or presumptive heir of any of the parties; if he is or has been the agent of any of the parties to the suit; if he is the administrator of any establishment or partnership involved in the suit, or if any of the parties is his presumptive heir; ( d ) (i) if he had given advice, pleaded or written on the cause or on any other matter connected therewith or dependant thereon; (ii) if he had previously taken cognizance of the cause as a judge or as an arbitrator: Provided that this shall not apply to any decision delivered by the judge which did not definitely dispose of the merits in issue or to any judgment of non-suit of the plaintiff; (iii) if he has made any disbursement in respect of the cause; (iv) if he has given evidence or if any of the parties proposes to call him as a witness; ( e ) if he, or his spouse, is directly or indirectly interested in the event of the suit; ( f ) if the advocate or legal procurator pleading before a judge is the son or daughter, spouse or ascendant of the said judge; ( g ) if the advocate or legal procurator pleading before a judge is the brother or sister of the said judge; ( h ) if the judge or his spouse has a case pending against any of the parties to the suit of happens to be his creditor or debtor in such manner as may reasonably give rise to suspicion of a direct or indirect interest that may influence the outcome of the case. (2) A judge may be challenged or abstain from sitting in a cause when he has previously taken cognizance of and expressed himself on the same merits of that cause when sitting as a judge in the Court of voluntary jurisdiction.” THE LAW ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL N o . 1 TO THE CONVENTION 31.     The applicants complained about the low amount of compensation awarded to them on the basis of the value of the land in 1961 (when it was designated as agricultural land), more than thirty years before the Government took physical possession of the then developable land, which they considered was in breach of 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.” Admissibility 32.     Noting that competence ratione temporis is a matter going to the Court’s jurisdiction and which it is not prevented from examining of its own motion (see Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006 ‑ III) the Court find its relevant to make the following observations. 33.     The Court notes that the applicants were stripped of their property in 1961 and that they complained about the amount of compensation determined decades later and not yet paid to them since. Therefore, the applicants’ complaint is directed against the acts and omissions of the State in relation to the implementation of an entitlement to a compensatory measure vested in them under Maltese law – an entitlement which continued to exist after 23 January 1967 and still exists today – thus, the Court has temporal jurisdiction to entertain the complaint (see Bezzina Wettinger and Others v. Malta , no. 15091/06, § 98, 8 April 2008 and the case-law therein). The same applies to the assessment of the amount of final compensation the determination of which was made by the LAB’s decision of 15 October 2009 confirmed on appeal and altered by means of the Constitutional Court judgment of 26 January 2018 (see, mutatis mutandis , Bezzina Wettinger and Others , cited above, § 98). 34.     The Court notes that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible. Merits The parties’ submissions (a)    The applicants 35.     The applicants submitted that the LAB’s decision to award them compensation based on a classification of the land in 1961, when they were still not compensated over fifty years later, was in breach of their right to the enjoyment of their property as well as the right not to be deprived of their property without payment of just compensation. They argued that the fact that the land was in fact built on both at the time of the physical taking of possession of the property and at the time of the notice to treat (a matter overlooked by the Constitutional Court) further aggravated the breach complained of. 36.     They submitted photographic evidence showing that in 2003, the time of the notification of the notice to treat, the school built by the Government on their land was already there, therefore the land was certainly in a development zone (as confirmed by the first-instance constitutional jurisdiction, that had awarded the applicants EUR 270,000 on the basis of the evaluation of a Government’s architect dated 5 December 2014 who classified the land as developable). The Government were therefore untruthful in saying that it was not the classification in 1961 which had been taken into account. In particular the expert testimony relied on by the Government had specifically made reference to aerial photographs dated 1957 to reach a conclusion (see paragraph 16 above), it therefore could not be possible that the experts were estimating the land in its 2003 state. Furthermore, the notice to treat referred to construction touching the applicants’ land, there could therefore be no doubt that the land was developable in 2003. 37.     The applicants pointed out that they had engaged an architect throughout the domestic proceedings who valued the property as in the year 2003 at EUR 295,000 whereas the Commissioner of Lands’ own architect valued the property in 2003 [sic., recte 2013] at EUR 270,000. Therefore, taking the average value of the land to be EUR 282,500 in 2003, the LAB’s award, confirmed by the Court of Appeal [as well as the courts of constitutional jurisdiction] was only 7.13% of the value which the applicants ought to have received – especially in light of the fact that the applicants found themselves decades after the taking, without any compensation. 38.     The applicants considered that the State’s lack of consideration of the amount of time that lapsed between the Governor’s Declaration and the payment of compensation was in itself a breach of Article 1 of Protocol No.   1. Moreover, the Government’s excuse that it took thirty-two years to have permits approved was absurd, and surely thirty-two years to build a school which was necessary in 1961 could not be considered a delay in the public interest. The applicants contested the Government’s argument that they could still use the land, and relied on domestic jurisprudence to the effect that they were stripped of all the rights pertaining to the disposability of the property as from the moment of the Government’s declaration. (b)    The Government 39.     The Government submitted that the expropriation was lawful, based on Chapter 88 of the Laws of Malta and Chapter 136 (which was applicable in 1961), and that it had been in the public interest, a matter not contested by the applicants during the domestic proceedings. In particular the Government relied on testimony given during the domestic proceedings to the effect that the applicants’ land (together with other land) was taken with the intention of constructing a school and roads in its vicinity. In the Government’s view the public interest persisted over time despite the fact that the school was only built in 1993. They considered that any delay in actualising the project was not the result of any inaction on the part of the Government but was simply due to the extremely complex matters relating to town planning, which included applying for permits and designing and construction plans. 40.     The Government further claimed that during such time the applicants maintained the possession of the property which was agricultural land and therefore continued to benefit from it. 41.     As to compensation, the Government submitted that when it was taken the land was agricultural and therefore compensation had to reflect its categorisation then without reference to the development made by the Government. The experts had taken into consideration both issues of fact and of law in determining the compensation. The Government noted that the LAB had increased the initial offer by almost six times (awarding its value in 2003 on the basis of its categorisation as agricultural land) and the Constitutional Court (which considered that the classification of the land as agricultural by the ordinary courts was binding) increased it further, along the lines established by the European Court of Human Rights in Schembri and Others v. Malta ((just satisfaction), no. 42583/06, 28   September 2010) particularly, in view of the delay in the payment of compensation. Thus, in the Government’s view the sum of EUR 26,093 to which must be added 5   % interest from the date when the land was taken until the date of agreement, was sufficient compensation. In relation to the valuation submitted by the applicants, the Government noted that it had been dated 2014 and referred specifically to the value of the land in 2013. 42.     Additionally the Government submitted that the applicants had every opportunity to challenge the expropriation and thus safeguarding their rights. Moreover, in the Government’s view the applicants had not been in a vulnerable personal situation. In consequence a fair balance had been struck between the competing interests. The Court’s assessment (a)    General principles 43.     The Court reiterates that a taking of property can be justified only if it is shown, inter alia , to be “in the public interest” and “subject to the conditions provided for by law”. Any interference with property must also satisfy the requirement of proportionality. As the Court has repeatedly stated, a fair balance must be struck between the demands of the general interest of the community and the requirement of protecting the individual’s fundamental rights, the search for such 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 v. Sweden , 23 September 1982, §§   69 ‑ 74, Series A no.   52, and Brumărescu v. Romania [GC], no.   28342/95, §   78, ECHR 1999 ‑ VII). 44.     Compensation terms under the relevant legislation are material to the assessment of whether or not the contested measure respects the requisite fair balance and, in particular, whether it imposes a disproportionate burden on the individuals (see Jahn and Others v.   Germany [GC], nos.   46720/99,   72203/01 and 72552/01, § 94, ECHR 2005 ‑ VI). In this connection, the taking of property without payment of an amount proportionate to its value will normally constitute a disproportionate interference, whilst a total lack of compensation can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances. However, Article 1 of Protocol No. 1 does not guarantee a right to full compensation in all circumstances. Legitimate objectives in the “public interest”, such as those pursued in measures of economic reform or measures designed to achieve greater social justice, may warrant reimbursement of less than the full market value (see Tagliaferro & Sons Limited and Coleiro Brothers Limited v. Malta , nos. 75225/13 and 77311/13, § 68, September 2018). 45.     The adequacy of the compensation would be diminished if it were to be paid without reference to various circumstances liable to reduce its value, such as unreasonable delay. Abnormally lengthy delays in the payment of compensation for expropriation lead to additional financial loss for the person whose land has been expropriated, putting him or her in a position of uncertainty (see Akkuş v.   Turkey , 9 July 1997, §   29, Reports of Judgments and Decisions 1997-IV). The same applies to abnormally lengthy delays in administrative or judicial proceedings in which such compensation is determined, especially when people whose land has been expropriated are obliged to resort to such proceedings in order to obtain the compensation to which they are entitled (see Aka v. Turkey , 23   September 1998, §   49, Reports 1998 -VI). (b)    Application to the present case 46.     The Court notes that the applicants lost possession of their property more than fifty years ago and remain today uncompensated. 47.     The Court observes that the lawfulness of the measure itself is not in dispute between the parties, and that the public interest behind the taking of the land has not been contested by the applicants during the domestic proceedings. In such circumstances the Court is ready to accept that the taking was lawful and in the public interest, despite the unreasonable delay in undertaking the project. 48.     However, the Court finds it opportune to point out that it has often found a breach of Article 1 of Protocol No. 1 on account of a significant delay between a decision to expropriate property and the actual undertaking of a project in the public interest which had formed the basis of the expropriation. While the placing in reserve of expropriated property, even for a long period of time, does not necessarily entail a breach of Article 1 of Protocol No. 1, there is clearly an issue under that provision where such an action is not itself based on public ‑ interest grounds and where, during that period, the property in question generates a significant increase in value of which the former owners are deprived (see Motais   de   Narbonne v.   France , no. 48161/99, § 21, 2 July 2002; Vassallo v. Malta , no.   57862/09, §§ 42-43, 11 October 2011; and more recently B. Tagliaferro & Sons Limited and Coleiro Brothers Limited , cited above, § 71). 49.     As to the proportionality of the measure, the applicants considered that being awarded compensation on the basis of the land being agricultural in 1961, was not a fair assessment given the delay in the payment of compensation, i.e. which had not yet been paid decades later. They, thus, considered that for the compensation to be adequate, they should have been paid its value on the date of the notice to treat, a time when they considered it to be developable. 50.     In this respect, the Court observes that – regrettable as it may be that at the relevant time (pre 2009) there was no judicial review of the decision of the experts as to the classification of the land – for the purposes of the present case the classification of the land in 2003 is immaterial, in so far as it has not been contested that the law at the relevant time provided that the applicants should be paid on the basis of the categorisation of the land at the time of the Governor’s Declaration, that is, in 1961. Indeed it has not been contested that, in 1961, it was designated as agricultural land. It follows that the fact that compensation was granted on the basis of that categorisation is not in itself sufficient to find that the compensation was not adequate. 51.     The fair balance is lost when, in determining the value of the land (irrespective of its categorisation), the LAB does not take into account the passage of time during which the applicants remained without compensation. 52.     Indeed, the Court has previously found that by awarding compensation reflecting values applicable decades before and deferring the payment of such for decades until the date of the LAB decisions which do not take into account this delay, the national authorities render the compensation inadequate and consequently upset the balance between the protection of the right to property and the requirements of the general interest (see, for example, Schembri and Others v. Malta , no. 42583/06, §   45, 10 November 2009 and Frendo Randon and Others v. Malta , no.   2226/10, § 70, 22 November 2011). 53.     However, the Court notes that, following the findings of the LAB (which appear to have awarded the value of the land in 2003 on the basis of its categorisation in 1961), the Constitutional Court increased the applicants’ compensation (see, a contrario , Schembri and Others (merits), cited above, § 17) despite the fact that it did not find a violation of the invoked provision. In doing so it applied the criteria determined by the Court in Schembri and Others ((just satisfaction), cited above, §§   17-18) thus, making good for the delay in payment until then. Furthermore, interest was to be added to the sum of pecuniary compensation for the land, at the time of the deed of transfer. In addition, the Constitutional Court also awarded the applicants non-pecuniary damage for the delay in concluding the expropriation. 54.     Bearing in mind the above, and the fact that the applicants did not complain domestically about the lack of public interest due to the delay in implementing the envisaged project, which would have had an impact on the compensation payable (see, for example, Vassallo v. Malta (just satisfaction), no. 57862/09, §§ 18-20, 6 November 2012), the Court cannot find that, in the circumstances of the present case, the applicants have not been awarded adequate compensation. 55.     Nevertheless, the Court notes that despite that award, which included an adjustment for the delay in payment, to date of submissions (2020) the applicants had not yet received any compensation. The Government did not deny that in their further round of observations in reply. In consequence, given that the applicants have to date not received any compensation for the taking of their property which occurred more than half a century ago, the Court considers that the requisite balance has not been struck (see, mutatis mutandis , B. Tagliaferro & Sons Limited and Coleiro Brothers Limited , cited above, § 74 in fine , and Gauci and Others