Constitutional Court practices and government efforts to remedy the situation with regard to the compensation for requisitioned property in the form of adequate rent were criticised by the European Court of Human Rights.

The ECHR did so in two judgments delivered on Tuesday and dealing with requisitioned property.

One was filed by Louis Apap Bologna about a property in Gżira, which had originally been requisitioned in 1976. It was again requisitioned in 1988, by which time a new occupier had moved in and even obtained a development permit to carry out alteration works on the property.

The other case was instituted by Gerald, Alfred, Neville and Winston Montanaro Gauci, Marie Josè Sultana and Nicolette Zammit Lupi, owners of a house in Rabat.

They submitted that, sometime in 1987, a person broke into the house and settled there, although this was not proved before the Maltese courts. A few days before the 1987 election, the house was requisitioned and the property was assigned to the person who had broken in. It was requisitioned again in early June 1988 and assigned to the same person.

In the case of Mr Apap Bologna, the ECHR said it appeared that the Constitutional Court’s award for human rights violation only covered non-pecuniary damage. “If that is so – as appears likely – the applicant is still a victim of the said violation, which has not been redressed, given the absence of any redress in the form of an award for the pecuniary losses suffered by the applicant,” said the ECHR, which included Chief Justice Emeritus Vincent De Gaetano.

It further noted that the compensation awarded could “hardly be considered sufficient in the light of the court-appointed expert’s valuations”.

The ECHR was critical of the fact that such compensation awards were reduced because applicants instituted constitutional redress proceedings years after they started suffering the violation complained of.

Another “concern” raised by the ECHR was related to the fact that, even after the Constitutional Court’s judgment, the applicant remained subject to the same laws that breached his rights, “as the Constitutional Court did not take any action in that respect”.

The ECHR found that the redress provided by the Constitutional Court did not offer sufficient relief to Mr Apap Bologna, who, it noted, continued to suffer the consequences of the breach of his rights.

The ECHR noted what the government had done to make changes to the law following a series of judgments on the matter against Malta.

“Nevertheless, despite the passage of 10 years, those cases remain open before the Committee of Ministers [which supervises the execution of ECHR judgments]. In this connection, the court cannot but note that the rents provided for by the amended law remain in stark contrast to the values of such property,” it said.

The court said the Maltese State had failed to strike a fair balance between the general interests of the community and the protection of a person’s right of property.

On the Constitutional Court, the ECHR said that although constitutional redress proceedings were an effective remedy in theory, they were not so in practice in cases such as the one before it. Such proceedings could not be considered as an effective remedy in the case of complaints on requisition orders “which, though lawful and pursuing legitimate objectives, impose an excessive individual burden on applicants”.

Some of these comments were also made in relation to the Rabat property case, where, it concluded, the burden on the owners was “disproportionate and excessive”, adding they were made to bear most of the social and financial costs of social accommodation.

The six property owners also claimed violation of their right to a fair trial, arguing that the Constitutional Court was presided over by a judge (the Chief Justice) who had been the attorney general who, as senior legal office, had defended the government in the case. He had also been the legal office advising the government on the drafting and introduction of rent law changes.

The ECHR noted that when the case was being heard in Malta, the owners had not made their request for the judge to abstain in writing. Also, although they insisted they had raised the matter orally, there was no such indication in the records of the case. It said it was not satisfied the owners had made adequate use of the remedies available to them in line with Maltese laws.

With regard to a claim for compensation, the ECHR gave the government and the applicants three months to make their written comments on the issue.