CEDH · CASELAW;CLIN;ENG — 4 février 2025

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Legal summary February 2025 B & B Property Development Co Ltd v. Malta (dec.) - 42584/21 Decision 4.2.2025 [Section IV] Article 35 Article 35-1 Exhaustion of domestic remedies Failure to exhaust new ordinary domestic remedies in respect of compensation claim for land expropriated in 1977: inadmissible Facts – In 1977 the Government expropriated 5,474.5   sq.   m of land without offering compensation. The law at the time (Chapter   88 of the Laws of Malta) did not provide for any ordinary avenue allowing the applicant company (“the applicant”), as owner of the land, to seek compensation. Part of the land was used by the Government to build a reservoir and an adjacent road (2,250   sq.   m), a water culvert (478   sq.   m) and other roads (1,225.5   sq.   m). In 1987 the land used to build a water culvert and roads was declared by the Government as released back to its owners, but no such release was ensured in practice. In 2016 the applicant instituted constitutional redress proceedings before the First Hall, Civil Court (‘FHCC’) complaining that it had not yet received compensation for the taking of its land in 1977 and about the delays in the expropriation procedure. In 2017, pending these proceedings, the Government Lands Act, Chapter   573 of the Laws of Malta (‘the Act’) was promulgated repealing Chapter   88. The Act made changes to the applicable compensation and relevant interest in relation to expropriations and provided an ordinary avenue to claim compensation. Furthermore, in 2018 and 2019 respectively the Government re-expropriated the land used to build the water culvert and the reservoir. Following the re-expropriations, the applicant instituted proceedings before the Land Arbitration Board (‘LAB’) challenging the amounts of compensation offered by the Government under the Act. In 2020 the FHCC held that under the new Act the LAB was an effective and available remedy.    Firstly, it could award both moral and material damage due to the delay in finalising the expropriation and the “loss of value increase” and was thus, in respect of the re-expropriated land an ordinary remedy that the applicant should continue pursuing. Secondly, in respect of the part used for roads which was not subject to a declaration, the applicant could bring an action under article   67 of the Act before the LAB seeking that the Government, either acquire the land by absolute purchase for which compensation would be paid, or relinquish the land free and unencumbered from any occupation in which case the Government may be ordered to pay for material and moral damage suffered for all the years the land has been occupied without the issuance of a declaration. On appeal the Constitutional Court confirmed that judgment in its entirety. Subsequently, the proceedings before the LAB which were stayed until the conclusion of the constitutional redress proceedings, were resumed and are still pending at first instance. The applicant complained under Article   1 of Protocol No.   1 and Article   6 §   1 that it had not yet received any compensation for the expropriation and that it was being required to undergo new procedures which in its view were ineffective. Law – Article   35 §   1: Unlike previous expropriation cases against Malta decided by the Court, it could not be ignored that after years of repeated violations, the Maltese State had enacted new legislation which had put in place a new procedure allowing applicants to claim compensation for the taking of their properties in various circumstances and that it had been designed, at least in principle, to address the issue of delayed compensation for the taking of property in an effective and meaningful manner, taking account of the Convention requirements. Although the domestic courts had not yet been able to establish any stable practice under the Act, that was not sufficient to consider that the remedy was not effective. Admittedly the new remedies had been put in place only after the applicant had started pursuing constitutional redress proceedings, that is, the only relevant remedy it had had at the time, and, in the absence of any transitory provisions in relation to already pending disputes of the sort. Furthermore, the delay in putting in place that procedure, as well as the apparent duration of such proceedings were regrettable. However, there was no reason to doubt that in their findings in relation to the two parts of land expropriated originally in 1977, and re-expropriated in 2019 and 2018 respectively, the ordinary courts could acknowledge, either expressly or in substance the delay which had occurred in the expropriation process. They could also award the relevant monetary redress, capable of rendering the applicant devoid of victim status both for the purposes of Article   1 of Protocol No.   1 and Article   6. If that were not to be the case, it would be open to the applicant to turn to the constitutional jurisdictions and if necessary to the Court. Accordingly, the Court found, without prejudice to any future findings in the light of evolving jurisprudence, that the new remedy could be assumed to be able to afford the applicant the opportunity to obtain adequate and sufficient redress for its grievances in relation to the two plots of land for which proceedings were ongoing, and that it would offer reasonable prospects of success in that regard. The applicant’s mere doubts about the capacity of the new remedy to provide adequate compensation could not alter that conclusion. That was even more so when the applicant wished to pursue the ordinary proceedings it had undertaken in relation to those plots, and to keep open its possibility of challenging their outcome, if necessary, in a fresh set of constitutional redress proceedings. As regards the part of the land which had not been re-expropriated following the enactment of the Act, but had been used to make roads despite being officially released in 1987 with no compensation having been offered, the Constitutional Court had confirmed the FHCC’s judgment which had held that the applicant company could bring an action under article   67 of the Act which, in the event of relinquishment of the land to the owner, also provided for the payment of material damages and moral damages. It followed that such a remedy would offer reasonable prospects of success and therefore could have been an effective remedy for the applicant’s complaint in relation to that part of the land. In so far as the applicant argued that, in the case-circumstances, the five‑year limitation period to bring such an action had been excessively short, the Court would not decide the matter in abstracto noting that the applicant had given no reasonable explanation as to why it had not pursued the remedy, even though the Constitutional Court had rejected its claim more than a year prior to its time-barring. Moreover, while it felt it had been compelled to institute the other proceedings in order not to forfeit the right to challenge the compensation, it was unclear why it did not feel compelled to institute these proceedings in relation to that part of the land, if it wanted the property to be released or expropriated by the State and to receive compensation. Although the applicant was presently precluded from pursuing those proceedings, and remained the owner of a property which was occupied by third parties, without prejudice to any other avenue which might be or might become open to it at the domestic level, for the purpose of that part of the complaint it had failed to avail itself of a remedy which had been open to it and which it had not been shown had no prospects of success. In sum, bearing in mind the above and the Constitutional Court’s findings, the applicant had failed to exhaust the ordinary domestic remedies available to it. Conclusion : inadmissible (failure to exhaust domestic remedies).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .