Moral damages slashed from €225,000 to €47,000

The Constitutional Court has ruled that 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.

At the same time, the court reduced the moral damages that had been awarded to the family from €225,000 to €47,000.

Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph Filletti delivered two judgments following two constitutional applications filed by the Randon family against the Commissioner of Land, 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 The case against the commission was later withdrawn.

The Randon family members claimed that their fundamental human rights to a fair hearing within a reasonable time had been violated following expropriation of their land at Bengħajsa in 1969.

The authorities had declared that the land was required for a public purpose for use by Malta Freeport and had offered the family €13,747 in compensation. The family refused the sum and claimed that the Commissioner of Land 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 Malta Freeport in 1989. It was only after the family had taken action against the Commissioner of Land that the latter had referred the matter to the LAB in 2000.

The Randons claimed that their rights had been violated because, following the privatisation of Malta Freeport, the land was not being used for a public purpose but to benefit the private sector.

They further argued that they had been deprived of access to the LAB because such right of access was limited by law to the Land Commissioner.

In addition, they had not been given a fair hearing within a reasonable time and insisted that the LAB was not an independent and impartial tribunal. Moreover, their right to fair compensation for deprivation of property had been violated.

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

Both the family and the authorities appealed to the Constitutional Court.

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

The members of the Randon family claimed that, once the government had not made use of all the property expropriated, then 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 to have access to the courts for the determination of civil rights and obligations. The individual was entitled to direct access to the courts.

The law governing expropriation at the time 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 Land decided to commence the necessary proceedings. In this case, the Commissioner of Land had only filed such proceedings 31 years after the expropriation took place and this only after a court had ordered him to do so.

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

The Constitutional Court said it was not true that a large portion of the expropriated land had not been utilised and disagreed with the first court, adding that the use of the land was relevant at the moment of expropriation for the whole period until the land was formally acquired by the government. In this case the land was to be utilised for the eventual expansion of Malta Freeport.

The continued holding of the land without formally concluding the expropriation did not of itself entitle the family to restitution of the property, the court noted.

The court however upheld the family's complaint about the composition of the LAB and found that the board, as made up according to law, did not constitute an impartial and independent tribunal due to the lack of security of tenure of the architects sitting on it.

The LAB was composed of a magistrate, who was a member of the judiciary and who therefore enjoyed the constitutionally-protected guarantees of security of tenure.

However, the technical members of the board were appointed by the government for a maximum period of two years and did not enjoy security of tenure.

These two architects had to provide the chairman of the LAB with their opinion about the compensation due for expropriation. In the event that the two architects were unanimous in their conclusions, the LAB's chairman was bound by their findings and could not depart from them.

The right of appeal from a decision of the LAB was limited to appeals on 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.

In conclusion, the Constitutional Court concluded that the family's right to access to the courts had been denied and its right to an independent and impartial tribunal had also been violated due to the composition of the LAB.

The court however found that the compensation awarded by way of moral damages by the first court had been excessive and cut the sum to a total of €47,000.