Court finds violation of right to fair hearing but reduces moral damages

A family's right to a hearing before an independent and impartial tribunal in a land expropriation case had been violated due to the composition of the Land Arbitration Board, the Constitutional Court has ruled.

However, it reduced the moral damages awarded to the family from €225,000 to €47,000.

Chief Justice Vincent Degaetano, Mr Justice Joseph D Camilleri and Mr Justice Joseph A Filletti delivered two judgments following two constitutional applications filed by the Randon family against the Commissioner of Lands, the Attorney General, the Minister for Justice and Local Councils and the Commission for the Administration of Justice. The case against the Commission was later withdrawn.

In its applications the Randon family claimed that their fundamental human right to a fair hearing within a reasonable time had been violated following expropriation of their land at Benghajsa in 1969.

At that time the authorities had declared that the land was required for use by the Malta Freeport and had offered Lm5,900 in compensation. The family refused the sum but it claimed that the Commissioner of Lands had not referred the issue to the Land Arbitration Board (LAB) with a request for the outright purchase of the land and the award of compensation.

Instead, the land had been transferred to the Malta Freeport in 1989. It was only after the family had taken action against the Commissioner of Lands that the latter referred the matter to the LAB in 2000.

The Randon family claimed that its rights had been violated since following the privatisation of the Malta Freeport the land was not being used for a public purpose but to benefit the private sector.

It also claimed that it had been deprived of access to the LAB, since such right of access was limited by law to the Commissioner.

The family claimed that it had not been given a fair hearing within a reasonable time and that the LAB was not an independent and impartial tribunal.

It claimed that its right to fair compensation for deprivation of property had been violated.

The First Hall of the Civil Court had found in favour of the family and had awarded it €225,000 in its two judgments.

But both the family and the authorities appealed.

The government claimed that the compensation awarded had been excessive and that no violation of human rights had taken place. It said the right of access to the courts was not absolute and it was subject to certain limitations in justifiable circumstances.

On its part, the Randon family claimed that once the government had not made use of all the property expropriated, they were entitled to restitution of their land.

The court pointed out that case law of the European Court of Human Rights had established that the right to a fair hearing did not entail only procedural guarantees but also the right of access to the courts for the determination of civil rights and obligations.

The law governing expropriation when the land in question was expropriated did not grant the owner of land the right to direct access to the LAB.

The owner was only given indirect access to the LAB after the Commissioner of Lands decided to commence the necessary proceedings.

In this case, the Commissioner had only filed these proceedings 31 years after the expropriation took place following a court order.

The Constitutional Court therefore found that the family's right to access to the LAB had been violated.

When referring to the family's appeal the Constitutional Court said that it was not true that a large portion of the expropriated land had not been utilised.

The court disagreed with the first court and said that the continued holding of the land without formally concluding the expropriation did not, in itself, entitle the family to restitution of its property

It, however, upheld the family's complaint about the composition of the LAB and found that the board, as constituted according to law, did not constitute an impartial and independent tribunal due to the lack of security of tenure of its architects.

The LAB was chaired by a magistrate and its members were two architects appointed by the government for a maximum period of two years. The architects had to provide the chairman with their opinion about the compensation due for the expropriation and if their opinion was unanimous, it was binding.

The right of appeal from a decision of the LAB was limited to points of law, while the findings of the architects were mainly points of fact. The fact that the architects could be reappointed to office after their term expired could serve as an incentive for them to advocate low compensation so as not to harm the government.