Mr Justice Geoffrey Valenzia, sitting in the First Hall of the Civil Court, has dismissed a constitutional application filed by architect Joseph Barbara and his family and ruled that the 1979 law governing the conversion of a temporary emphyteutical grant to that of perpetual emphyteusis was not in violation of applicants' fundamental human rights.

The application was filed by Mr Barbara, Josephine Azzopardi, Anna Maria Saddemi, Patricia Anastasi and Greta Bartolo Parnis against the Attorney General and Anthony Cachia.

The court heard that Mr Barbara and his family were the owners of property known as St Julians Court, St Julians. In 1957 the property had been granted to the British Armed Forces by title of temporary emphyteusis for 45 years and the grant expired in 2002.

In 1977 the British Forces had granted the remaining part of the emphyteusis to the Malta government which, in turn, in 1978 granted the property to Holiday Services Co. Ltd for the remaining period of the emphyteusis.

Mr Cachia was currently occupying one of the apartments within this block.

Applicants had submitted that the 1979 amendments to the Housing Decontrol Ordinance were in violation of their fundamental human rights.

They claimed that in terms of sections 12(4) and (5) of this law, the property owner was deprived of his right to resume possession of his property after the expiration of a grant of temporary emphyteusis as the occupier, under certain conditions, was entitled to convert the grant to one of perpetual emphyteusis.

Furthermore, a 1981 amendment to section 1501 of the Civil Code entitled the occupier, under title of perpetual emphyteusis, to redeem the ground rent payable by capitalising the ground rent at the rate of five per cent.

According to applicants, the two laws were in violation of their fundamental human rights to enjoyment of property and to freedom from deprivation of property without adequate compensation.

In its judgment the court noted that the laws complained of by Mr Barbara did not mean that the government had formally or in fact expropriated applicants' property. The government had introduced legislation that regulated the property rights of citizens.

In fact, when the government had taken over properties that formerly belonged to the Church, the government was facing the same situation as the private citizen, for many of these properties were going to be redeemed by their occupiers in terms of law.

Mr Justice Valenzia referred to judgments of the European Court of Human Rights which declared that in terms of the European Convention of Human Rights the state could only interfere with property if it was serving a legitimate public or general interest.

The state was entitled to enact such laws as were deemed necessary to control the use of property in accordance with the general interest and that such laws were especially called for and usual in the field of housing which, nowadays, was a central concern of social and economic policies.

In this case the court pointed out that the purpose behind the amendments to the Civil Code was that of regulating relations between private individuals and not forced expropriation of property. This legislation aimed at redeeming perpetual emphyteutical grants.

The government had wished to modify or gradually terminate the institute of emphyteusis which had already been abolished in many European countries as this was a feudal institution based upon the idea of the landowner and the individual, or serf, who worked and maintained the property.

Mr Justice Valenzia found that the authorities had a wide margin of appreciation and were in a better position to judge what was required in the public interest.

The court concluded that there was nothing manifestly unreasonable in the measure taken by the government when section 1501 of the Civil Code was amended as this regulated the rights of private citizens insofar as this concerned the relationship between property owner and the emphyteuta.

The fact that the Civil Code authorised the contracting parties to establish rules between them did not mean that Parliament was forever bound not to change the law.

The right to property, the court noted, was not absolute and there were many examples, within the Civil Code, where agreements between contracting parties were considered to be null and void.

With reference to the 1979 amendments governing the conversion of grants of temporary emphyteusis to perpetual emphyteusis the court quoted from a judgment by the European Court of Human Rights which ruled that there had to be a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.

Applicants had submitted that the conversion of the emphyteutical grant was a forced deprivation of property without compensation.

Applicants claimed that not only were they being deprived of their property but were not receiving due compensation. Mr Justice Valenzia pointed out that the law, as amended, granted the emphyteuta the right to convert the emphyteusis to a perpetual emphyteusis against payment of a ground rent increased by six times that payable prior to the conversion.

If such an emphyteutical grant was redeemed, then the emphyteuta had to capitalise the ground rent at five per cent, which meant by paying 20 times the annual ground rent.

Furthermore, the emphyteuta was entitled, but not bound, to redeem the ground rent payable.

While it was true that applicants were not obtaining the same return on their property, in terms of these laws, as though they were selling it on the open market, the European Court had ruled that the Convention did not guarantee a right to full compensation in all circumstances.

Legitimate objectives of public interest, or measures designed to achieve greater social justice, could call for less than reimbursement of the full market value.

Mr Justice Valenzia added that applicants had invested money in order to construct their property almost 50 years previously. During this period applicants had received ground rent in respect of the property and the occupiers had maintained the property.

Applicants were entitled to receive six times the groundrent they had originally imposed upon the property and the ground rent, as increased, could be capitalised at five per cent.

Thus, applicants were not being subjected to an excessive burden as they were receiving compensation that was objectively justified in view of the measures introduced in the public interest.

The court therefore concluded that there was no violation of applicants rights to their property and dismissed the constitutional application.

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