I incorrectly predicted that there's no violation of human rights in TESTAFERRATA BONICI v. MALTA.

Information

  • Judgment date: 2020-06-30
  • Communication date: 2019-07-11
  • Application number(s): 41862/18
  • Country:   MLT
  • Relevant ECHR article(s): 13, P1-1, P1-1-2
  • Conclusion:
    Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
    Violation of Article 13+P1-1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 of Protocol No. 1 - Protection of property
    Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
  • Result: Violation
    • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.530466
  • Prediction: No violation

  • Inconsistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

A list of the applicants is set out in the appendix.
They were represented before the Court by Dr Sarah Grech and Dr John (aka Ian) Refalo.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are owners of a property (an eighteenth century palazzo) of around 1300 sq.m.
situated in Balzan, Malta.
As of the 1930’s the property had been under state control housing a primary school.
Once the school was relocated, on 14 August 1974 the Government requisitioned the property, in order to allocate it to different Government departments or other entities.
Over the years the property was used by the Maltapost Ltd. (a private entity), a Local Council and the Government Department of Social Security, as well as that of Health.
The applicants were being paid a rent of approximately 256 euros (EUR) annually for the entirety of the property, based on its value in 1948.
In the year 2000 the State stopped paying rent, and in 2001 the sum of approximately EUR 67,432 was paid to the applicants and a part of the property was returned to them, on the basis of a recommendation made by the Ombudsman who had heard their request to that effect.
On 13 August 2012 the applicants instituted constitutional redress proceedings complaining under Article 1 of Protocol No.
1 to the Convention alone and in conjunction with Article 14 of the Convention.
In particular they argued that the requisition order had not been in the public interest given that it was used also by private entities for commercial purposes and that they had been suffering an excessive burden given the low amount of rent.
In this respect they noted that according to their architect’s report, the rental value in 2012 of the property was EUR 127,700 annually (and its sale value was of EUR 2,837,700).
During the constitutional proceedings the various entities were relocated and a partial derequisitioning order was issued on 26 June 2014.
By a judgment of 24 October 2017 the court found a violation of Article 1 of Protocol No.
1 and rejected their complaint under Article 14.
It considered that the applicants had been suffering a disproportionate burden as a result of the huge discrepancy between the low amount of rent paid to them in connection with the requisition and the market value of the property.
It noted that while the applicants had been paid a lump sum in 2001 they had been suffering such interference for forty years.
Thus, no fair balance had been reached.
The court awarded the applicants EUR 50,000 in compensation bearing in mind the value of the property, the public interest behind the interference, the fact that the applicants only complained after several decades, the payment made in 2001, and the fact that the Convention was applicable to Malta only post 1987.
The applicants appealed solely on the basis that the pecuniary damage awarded was too low, that no non-pecuniary damage had been awarded and that the violation persisted as the property had not yet been derequisitioned in its entirety, despite the fact that most of the entities had left the building and that the keys had been returned to the applicants.
By a judgment of 2 March 2018 the Constitutional Court upheld the appeal in part.
It held that while only one Government entity remained occupying a small part of the property and the keys to the rest of the property had been returned to the applicants, the requisition was still in force.
It was thus for the authorities to derequisition the property in its entirety.
Given such an order it considered that compensation was less relevant and that in any event it was not for it to award civil pecuniary damage which was available before the ordinary courts.
In its view its function was limited to awarding fair compensation for the period during which the applicants were denied the peaceful possession of their property against an inadequate amount of compensation.
As to the actual award it considered that: with the passage of time the requisition lost its legitimacy; the applicants had been awarded approximately EUR 67,000 on the basis of the recommendation by the Ombudsman; the authorities had co-operated in vacating the property all throughout the proceedings; that the property had been gradually vacated; and that the sum of EUR 50,000 awarded by the first‐instance court did not exclude non‐pecuniary damage.
Thus, in the Constitutional Court’s view the sum of EUR 117,432 and the return of the property constituted an effective remedy for the breach suffered.
However, given that the property had not yet been derequisitioned, interest was due from the date of the judgment appealed against.
Costs for the appeal proceedings were to be shared equally by the parties.
On 2 April 2018, the applicants received the EUR 50,000 compensation, but no interest on that amount was paid.
On 19 April 2018 the property was derequisitioned in its entirety and on 5 June 2018 the applicants received a cheque of EUR 1,621 in respect of legal expenses incurred.
The relevant domestic law pertinent to the case is set out in Fleri Soler and Camilleri v. Malta, no.
35349/05, §§ 22-26, ECHR 2006‐X and Apap Bologna v. Malta, no.
46931/12, §§ 28-30, 30 August 2016.
COMPLAINTS The applicants complain that they are still victims of a violation of Article 1 of Protocol No.
1 upheld by the Constitutional Court given the low amount of compensation awarded.
They further consider that constitutional redress proceedings were not an effective remedy as required by Article 13 of the Convention.

Judgment

THIRD SECTION
CASE OF TESTAFERRATA BONICI AND OTHERS v. MALTA
(Application no. 41862/18)

JUDGMENT
STRASBOURG
30 June 2020

This judgment is final but it may be subject to editorial revision. In the case of Testaferrata Bonici and Others v. Malta,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Georgios A. Serghides, President,Erik Wennerström,Lorraine Schembri Orland, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 41862/18) 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, Mr Philip Testaferrata Bonici, Ms Marie Bianchi, Mr Nicholas Bianchi and Ms Rita Testaferrata Bonici (“the applicants”), on 30 August 2018;
the decision to give notice of the application to the Maltese Government (“the Government”);
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 requisition of the applicants’ property and the disproportionality of the rent received by the applicants under Article 1 of Protocol No. 1, as well as the effectiveness of the Constitutional Court as a remedy for the purposes of Article 13 in connection with the former complaint. THE FACTS
1. The applicants were born in 1951, 1954, 1960 and 1952 respectively and live in Lija. The applicants were represented by Dr Sarah Grech and Dr John (aka Ian) Refalo, lawyers practising in Valletta. 2. The Government were represented by their Agent, Dr V. Buttiġieġ, State Attorney. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicants are owners of a property (an eighteenth century palazzo) of around 1300 sq.m. situated in Balzan, Malta. 5. Since the 1930’s the property had been leased to the State and used as a primary school. Once the school was relocated, on 14 August 1974, the Government requisitioned the property in order to allocate it to different Government departments or other entities. 6. Over the years the property was used by the postal services (i.e. Maltapost Ltd., a private entity as of 1998, and previously a government service), a Local Council and the Government Department of Social Security, as well as that of Health and other civil service departments. The applicants were being paid a rent of approximately 256 euros (EUR) annually for the entirety of the property, based on its value in 1948. 7. In the year 2000 the applicants stopped accepting the rent which started being deposited in court and in 2001 the sum of approximately EUR 67,432 was paid to the applicants and a part of the property was returned to them, on the basis of a recommendation made by the Ombudsman who had heard their request to that effect. 8. On 13 August 2012 the applicants instituted constitutional redress proceedings complaining under Article 1 of Protocol No. 1 to the Convention alone and in conjunction with Article 14 of the Convention. In particular they argued that the requisition order had not been in the public interest given that it was used also by private entities for commercial purposes and that they had been suffering an excessive burden given the low amount of rent. In this respect they noted that according to their architect’s report, the rental value of the property in 2012 was EUR 127,700 annually and rental value of the parts still occupied in 2012 was EUR 104,500 (its sale value was EUR 2,837,700). 9. During the constitutional proceedings the various entities were relocated and a partial derequisitioning order was issued on 26 June 2014. 10. By a judgment of 24 October 2017 the Civil Court (First Hall) in its constitutional competence, found a violation of Article 1 of Protocol No. 1 and rejected their complaint under Article 14. It considered that the applicants had been suffering a disproportionate burden as a result of the huge discrepancy between the low amount of rent paid to them in connection with the requisition and the market value of the property. It noted that while the applicants had been paid a lump sum in 2001 they had been suffering such interference for forty years. Thus, no fair balance had been reached. The court awarded the applicants EUR 50,000 in compensation bearing in mind the value of the property, the public interest behind the interference, the fact that the applicants only complained after several decades, the payment made in 2001, and the fact that the Convention was applicable to Malta only post 1987. No costs were to be paid by the applicants. 11. Only the applicants appealed and they appealed solely on the basis that the pecuniary damage awarded was too low, that no non-pecuniary damage had been awarded and that the violation persisted as the property had not yet been derequisitioned in its entirety, despite the fact that most of the entities had left the building and that the keys had been returned to the applicants. 12. By a judgment of 2 March 2018 the Constitutional Court upheld the appeal in part. Concerning remedial action, it held that while only one Government entity continued occupying a small part of the property and the keys to the rest of the property had been returned to the applicants, the requisition was still in force. It was thus for the authorities to derequisition the property in its entirety. Given such an order it considered that compensation was less relevant and that in any event it was not for the Constitutional Court to award civil pecuniary damage which was available before the ordinary courts. In its view its function was limited to awarding fair compensation for the period during which the applicants were denied the peaceful possession of their property against an inadequate amount of compensation. 13. As to the actual award it considered that: with the passage of time the requisition lost its legitimacy; the applicants had been awarded approximately EUR 67,000 on the basis of the recommendation by the Ombudsman; the authorities had co-operated in vacating the property throughout the proceedings; the property had been gradually vacated; and the sum of EUR 50,000 awarded by the first-instance court did not exclude non-pecuniary damage. Thus, in the Constitutional Court’s view the aggregate sum of EUR 117,432 and the return of the property constituted an effective remedy for the breach suffered. However, given that the property had not yet been derequisitioned, interest was due from the date of the judgment appealed against. Costs for the appeal proceedings were to be shared equally by the parties. 14. On 2 April 2018 the applicants received the payment of EUR 50,000 in compensation, but no interest on that amount was paid. On 19 April 2018 the property was derequisitioned in its entirety and on 5 June 2018 the applicants received a cheque of EUR 1,621 in respect of legal expenses incurred. 15. The relevant domestic law pertinent to the case is set out in Fleri Soler and Camilleri v. Malta (no. 35349/05, §§ 22-26, ECHR 2006‐X) and Apap Bologna v. Malta (no. 46931/12, §§ 28-30, 30 August 2016). THE LAW
16. The applicants complained that they were still victims of a violation of Article 1 of Protocol No. 1 upheld by the Constitutional Court given the low amount of compensation awarded. The provision 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.”
(a) The parties submissions
17. The Government submitted that the applicants had lost their victim status following the Constitutional Court’s finding which acknowledged the violation and awarded EUR 50,000 in compensation. They noted that that award had to be added to the previous awards of more than EUR 67,000. Moreover, the courts had also ordered that the property be derequisitioned, thus, the applicants had obtained the best possible redress, namely, restitution of the property as well as compensation. The Government also considered that the applicants could institute proceedings to execute that part of the Constitutional Court judgment in relation to the interest due. Lastly, the Government noted that the applicants’ reference to significant structural damage to the property was totally unsubstantiated. 18. Relying on the Court’s case law the applicants maintained that they remained victims of the violation upheld by the Constitutional Court given that the total compensation granted was a pittance compared to the damages actually suffered. They noted that the rental value of the property according to their expert was in 2012 EUR 127,700 annually, thus the total award received domestically (EUR 117,431.70) had not even covered a year’s rent, let alone the losses in rent incurred over forty years. They also referred to significant structural damage to the property which in their view cost EUR 100,000. (b) The Court’s assessment
19. The Court refers to its general principles about the matter as set out in Apap Bologna v. Malta (no. 46931/12, §§ 41 and 43, 30 August 2016). 20. In the present case the Court notes that there has been an acknowledgment of a violation by the domestic court. As to whether appropriate and sufficient redress was granted, the Court considers that even though the market value is not applicable and the rent valuations may be decreased due to the legitimate aim at issue, and also bearing in mind that the valuation is an ex parte one and not provided by a court-appointed expert, an award of EUR 50,000 (in addition to a previous award of just over EUR 67,000) from which part of the costs of the appeal must be deducted - and which according to the Constitutional Court also covered non-pecuniary damage - can hardly be considered sufficient in the light of the value of the property at issue (see paragraph 8 above) and bearing in mind that the applicants were being paid a disproportionately low amount of rent, for decades. Further, the Court considers that the mere fact that the violation has been brought to an end by the order to derequisition the property, some forty years later, does not alter that conclusion. 21. It follows that the redress provided by the Constitutional Court did not offer sufficient relief to the applicants, who thus retain victim status for the purposes of this complaint. 22. The Government’s objection is therefore dismissed. 23. The Court notes that the 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. 24. The applicants complained of the requisition of their property in 1974 and the retention of the same by the Government without the payment of any fair compensation. The applicants submitted that in 1974 the rent being paid by the Government was EUR 256.23 (slightly more than the Government had been paying in 1939, which was approximately EUR 210) and that the rent had not been adjusted to meet inflation or other costs, at any point in the forty years that followed. They noted that, according to their expert’s valuation - which was accepted by the domestic court in the absence of any other expert report being submitted by the Government - the value of the property in 2012 was EUR 127,700 annually. Thus, adjusting that rental value to the previous years, over the forty years during which the property had been requisitioned, they should have received rent of over EUR 3,000,000. In reality they had only made EUR 6,661.98 in rent. They had then been granted a sum by the Ombudsman and later the domestic courts (totalling EUR 117,431.70) which in all, however, amounted to twenty-five times less than what was due to them (and this without factoring other issues such as interest on the amounts and the damage caused to the property). The applicants also added that over time some of the entities making use of the property had been privatised and used for private and commercial purposes. They further submitted that the partial derequisition order issued in 2014 (of three basement rooms), whereby the areas occupied by the Local Councils Association were derequisitioned, had a negligible effect on the possession of the property as the applicants were not free to use and enjoy the property as they wished. They, thus, considered that the measure had been clearly disproportionate. 25. The Government submitted that the applicants had only appealed the redress provided and thus the Court was only competent to deal with that matter. They noted that the applicants had been paid a total of EUR 117,431 for the occupation of the property which had been requisitioned in 1974 and was returned to the applicants part by part as of 2001, until its total derequisition in 2018. Dividing that sum over the relevant period meant that over forty-four years the applicants were obtaining around EUR 2,669 annually, but given that the applicants only complained about rent in 1991, this would mean that the total compensation over the relevant period would amount to EUR 4,349 annually which the Government considered was sufficient compensation given that the measure was lawful and in the general interest. 26. In relation to the quantified claim of rent which should have been received by the applicants, the Government firstly noted that it had not been drawn up by an architect, and secondly, that the method of calculation based on a valuation applicable only for one year was not reliable. Further, the applicants had used the immovable property price index published by the Central Bank of Malta, which however was only publicised for information purposes, as a supplement to the official contract-based property price index published by the National Statistics Office. Moreover, it was based on advertised prices and not actual agreed prices and therefore was not representative of all residential properties. 27. As to whether the impugned measure was lawful and pursued a legitimate aim in the general interest of the community, the Court reiterates that in situations where the operation of rent-control legislation involves wide-reaching consequences for numerous individuals and has economic and social consequences for the country as a whole, the authorities must have considerable discretion not only in choosing the form and deciding on the extent of control over the use of property but also in deciding on the appropriate timing for the enforcement of the relevant laws. Nevertheless, that discretion, however considerable, is not unlimited and its exercise cannot entail consequences at variance with the Convention standards (see Fleri Soler and Camilleri v. Malta, no. 35349/05, § 76, ECHR 2006‐X). However, these principles do not necessarily apply in the same manner where, as in the present case, the requisition of property belonging to private individuals is not aimed at securing the social welfare of tenants or preventing homelessness (ibid. § 77). In the Court’s view, in cases such as the present one the effects of the rent-control measures are subject to closer scrutiny at the European level (ibid., in connection with property requisitioned for use as government offices). Furthermore, the use of property for reasons other than to secure the social welfare of tenants and prevent homelessness has an impact on the compensation due to the owner (see Fleri Soler and Camilleri v. Malta (just satisfaction), no. 35349/05, § 18, 17 July 2008). 28. Having regard to the finding of the domestic court relating to the violation of Article 1 of Protocol No. 1, the Court considers that it is not necessary to re-examine in detail the merits of the complaint. It suffices to find that, as established by the domestic courts, in the light of the compensation offered to the applicants, they were made to bear a disproportionate burden. 29. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention. 30. The applicants complained that constitutional redress proceedings were not an effective remedy in relation to their complaint under Article 1 of Protocol No. 1, as required by Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
31. The Government submitted that the applicant could have instituted a fresh set of constitutional redress proceedings to complain under Article 13 about the Constitutional Court judgment. 32. The applicant submitted that such an action would not have been appropriate and that the ordinary action at such stage was to bring the complaint before the Court. 33. The Government’s objection to this effect has been repeatedly rejected by this Court (see, amongst multiple authorities, Apap Bologna, cited above, § 63, Grech and Others v. Malta, no. 69287/14, § 50, 15 January 2019; and more recently Portanier v. Malta, no. 55747/16, § 35, 27 August 2019). The Court sees no reason to reach a different conclusion in the present case. 34. The Government’s objection is therefore dismissed. 35. Further, the Court notes that it has already found a violation of Article 1 of Protocol No. 1 to the Convention, it follows that the applicants’ claims are arguable for the purposes of Article 13. 36. The Court considers that the complaint under Article 13 in conjunction with Article 1 of Protocol No. 1 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. 37. The applicants submitted that the relief obtained domestically had not been appropriate or adequate, principally because the monetary award was insufficient and was unduly diminished as a result of the way the Constitutional Court apportioned the costs. The applicants noted that there was a systematic pattern of cases where, following the first-instance court’s award of compensation in cases of breaches of Article 1 of Protocol No. l, the Constitutional Court reviewed the award, lessening the amount of compensation due without particularly weighty reasons, and sometimes also without providing adequate reasoning for such negative review. Generally in these cases the Constitutional Court also ruled on the costs in such a way that the applicant whose rights were declared to have been violated was burdened with at least part of the judicial costs. They relied on the Court’s case‐law finding breaches of Article 13 in this connection. 38. The Government submitted that constitutional proceedings were capable of providing adequate redress for the violation found by the domestic courts. In fact and in practice, the courts of constitutional jurisdiction could award any type of redress, ranging from an award of compensation, which was the usual type of redress granted in cases of a violation of Article 1 of Protocol No. 1 (they relied, for example, on AIC Joseph Barbara vs the Prime Minister, Constitutional Court judgment of 31 January 2014, and Angela sive Gina Balzan vs the Prime Minister, Constitutional Court judgment of 7 December 2012), to various other types of orders. The Government submitted, as examples from actual judgments, the reintegration of an employee into the public service, as well as an order made to the courts of criminal jurisdiction to discard a statement made by the accused when it had been taken by the police without legal assistance. They reiterated that there were no limits to the powers of the courts of constitutional jurisdiction to grant redress for Convention violations. 39. The Government referred to the present case to highlight the unlimited power of the Constitutional Court, in so far as its judgment had annulled the requisition order. They also referred to two other examples where the Constitutional Court annulled a requisition order, namely, Gevimida Ltd vs Carmen Fenech et, Constitutional Court judgment of 29 November 2019, and John Mattei vs Housing Authority, Constitutional Court judgment of 5 October 2018. 40. Given that in the present case the domestic courts had also awarded compensation, the applicants had an effective remedy at their disposal. 41. The Court refers to the general principles under Article 13 as set out in Apap Bologna (cited above, §§ 76-79). 42. In the case of Apap Bologna, which also concerned the requisitioning of property, the Court entered into a detailed analysis of the available remedies (§§ 80-90). In the light of its considerations, and in view of the domestic judgments brought to its attention on the subject, it concluded that although constitutional redress proceedings were an effective remedy in theory, they were not in practice in cases such as the one at hand. In consequence, they could not be considered an effective remedy for the purposes of Article 13 in conjunction with Article 1 of Protocol No. 1 concerning arguable complaints in respect of requisition orders which, though lawful and pursuing legitimate objectives, imposed an excessive individual burden on applicants (§ 91). The Court further considered that the Government had not demonstrated that the aggregate of remedies proposed by them in connection with requisition orders, which imposed an excessive burden on property owners, constituted effective remedies available to the applicant in theory and in practice at the relevant time (§§ 92-93). Accordingly, the Court found that there had been a violation of Article 13, in conjunction with Article 1 of Protocol No. 1 to the Convention (§ 94). 43. While it is true that in the present case, as with some other recent examples, the Constitutional Court ordered the derequisition of the property and therefore prevented the continuation of the violation (see, a contrario, Apap Bologna, cited above, § 85-86) it did not provide adequate redress, in the form of financial compensation, for the violation that had already occurred. The Court makes reference to its considerations in paragraphs 20‐21 above. 44. The Court has repeatedly found that the sums awarded in compensation by the Constitutional Court do not constitute adequate redress (ibid. § 89). The Court reiterates that, just like an award for pecuniary damage under Article 41 of the Convention, an award for pecuniary damage made by a domestic court must be intended to put the applicant, as far as possible, in the position he would have enjoyed had the breach not occurred. It transpires from the information and cases brought before the Court that this is regularly not the case. Such pecuniary awards are also often not accompanied by an adequate award of non-pecuniary damage and/or are burdened by an order for the payment of the relevant costs (ibid. § 90 and Grech and Others, cited above, § 62). No domestic case‐law dispelling such conclusions has been brought to the Court’s attention in the present case. 45. In the light of the above considerations relating to the relevant time, the Court concludes that although constitutional redress proceedings are an effective remedy in theory, they were not so in practice, in cases such as the present one. Consequently, they cannot be considered an effective remedy for the purposes of Article 13 in conjunction with Article 1 of Protocol No. 1 concerning arguable complaints in respect of requisition orders, which, though lawful and pursuing legitimate objectives, impose an excessive individual burden on applicants. 46. No other remedies have been referred to by the Government. 47. Accordingly, the Court finds that there has been a violation of Article 13, in conjunction with Article 1 of Protocol No. 1 to the Convention. 48. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
49. In pecuniary damage the applicants claimed EUR 3,264,943.64 (sic.) [recte according to their calculation EUR 3,188,197.92] as covering the loss of fair rent from 1974, the date of the requisition order, until 2018, when it was derequisitioned in its entirety and returned to the applicants. They relied on their expert’s valuation of the rental value of the property in 2012 at EUR 127,000 annually, which valuation was accepted as conclusive by the domestic courts. In order to calculate the loss of rent over the years, the applicants resorted to the immovable property price index published by the Central Bank of Malta and have scaled backwards and forwards from the valuation given by their architect In addition, they considered that they should be paid interest at 8% according to domestic law, which should be calculated for each year of violation, thus amounting to EUR 3,671,528.59. 50. The applicants also claimed EUR 80,000 jointly, in non-pecuniary damage. 51. The legal representatives indicated their firm’s bank account to receive payment of all the sums awarded by the Court. 52. The Government referred to their observations at paragraph 26 above. They further submitted that there had been no guarantee that the property would have been rented out all the time had it not been requisitioned, and even if it had been so, the rent would not have been increased every year (contrary to that applied in the applicants’ calculations). Furthermore, the property had to be kept in a good state of repair at no expense for the owners. The Government noted that in view of the public interest at issue the market value was not applicable. Lastly, they considered that the claim for interest was excessive and unfounded. Thus in their view the total sum of pecuniary damage should not exceed EUR 25,000 and that of non-pecuniary damage EUR 5,000. 53. The Court must proceed to determine the compensation the applicants are entitled to in respect of the loss of control, use and enjoyment of the property which they have suffered. 54. In assessing the pecuniary damage sustained by the applicants, the Court - as far as appropriate – takes into account the estimates provided by the ex parte architect and has regard to the information available to it on rental values on the Maltese property market during the relevant period. 55. The Court reiterates that legitimate objectives in the “public interest”, such as those pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value and that a total lack of compensation can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances (see James and Others v. the United Kingdom, 21 February 1986, Series A no. 98, § 54; Jahn and Others v. Germany [GC], nos. 46720/99 and 2 others, § 94, ECHR 2005‐VI; and Ghigo v. Malta (just satisfaction), no. 31122/05, § 18, 17 July 2008). In the present case however, the Court keeps in mind that the property was not used for securing the social welfare of tenants or preventing homelessness (compare Fleri Soler (just satisfaction), cited above, § 18). 56. Furthermore, the sums already received by the applicants in rent must be deducted. Moreover, the amount of EUR 50,000 awarded by the Constitutional Court, as well as the prior sum awarded following the Ombudsman’s recommendation (EUR 67,432) must also be deducted. 57. In view of those earlier payments, as well as the fact that parts of the property were progressively released, the Court considers that a full sum of interest on the above award would not be necessary in order to compensate for the loss of value of the award over time. 58. Hence, bearing in mind the above, the Court awards the applicants EUR 635,000, jointly, in pecuniary damage. 59. The Court considers that the applicants must have sustained feelings of frustration and stress, having regard to the nature of the breaches. It thus also awards the applicants EUR 10,000 jointly, under this head. 60. Lastly, the Court makes reference to its call for general measures, under Article 46 of the Convention, to be applied by the Maltese State in order to put an end to the systemic violation of the right of property identified in such cases (see Edwards v. Malta (just satisfaction), no. 17647/04, §§ 30‐34, 17 July 2008) and its encouragement to the Government to pursue such measures speedily and with due diligence under the supervision of the Committee of Ministers (see Apap Bologna, cited above, § 103). 61. As requested, the amount awarded is to be paid directly into the bank account designated by the applicants’ representatives (see, for example, Denisov v. Ukraine [GC], no. 76639/11, § 148, 25 September 2018, and as provided for in p. 22 of the Practice Direction on Just Satisfaction Claims (issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 28 March 2007)). 62. The applicants also claimed EUR 9,450.11 in costs and expenses incurred, of which EUR 6,032.60 represented costs incurred before the Court. The legal representatives indicated their firm’s bank account to receive payment of all the sums awarded by the Court. 63. The Government contested the sum of EUR 477.06 which the applicants were made to pay for Government expenses as no receipt had been provided, and in relation to the other costs concerning domestic proceedings they noted that these were over and above the judicial bill of costs. As to proceedings before this Court they considered that EUR 1,500 jointly would be more than reasonable. 64. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, as well as the fact that the sums in judicial costs remain payable by the applicant, the Court considers it reasonable to award the sum of EUR 7,000 covering costs under all heads. 65. As requested, this amount, too, is to be paid directly into the bank account designated by the applicants’ representatives. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be paid into the bank account designated by the applicants’ representatives:
(i) EUR 635,000 (six hundred and thirty-five thousand euros), jointly, in respect of pecuniary damage;
(ii) EUR 10,000 (ten thousand euros), jointly, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 7,000 (seven thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 30 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Olga Chernishova Georgios A. SerghidesDeputy RegistrarPresident