Expropriation is described as the forced taking of privately owned property by the government or one of its entities, in return for compensation. At face value one would think that, once the owner is forcefully being deprived of his property, expropriation is diametrically opposed to the right of peaceful enjoyment of one’s property as protected by article 37 of the Constitution and by article 1 of Protocol 1 of the European Convention on Human Rights. However, this does not mean that such a right is absolute and this because one may be deprived of the enjoyment of one’s possessions if this is done, among other reasons, in the public interest.
The right of the state to expropriate property has always been recognised by both the Constitutional Court and by the European Court of Human Rights as an essential legal mechanism which aids the state in the implementation of its policies and projects. The state is in a much better position to ascertain the type, size and location of property needed from time to time and to decide on the reasons as to why such property is needed. The Courts have regularly considered that the government should have a wide margin of discretion in order to decide on what is to be considered in the public interest as it is in a much better position than the judiciary to understand what may be socially, economically, culturally, politically and environmentally necessary for the development and progression of the country. However, how can one ever justify the mandatory deprivation of privately-owned property, independently from the government’s needs?
Legally the answer lies in the principle of proportionality. This principle is effectively based on finding an equilibrium between the violation of one’s property rights (which are prejudiced by the appropriation of the property) and the importance of expropriation as a necessary tool for the state’s implementation of its plans and policies. This equilibrium may only be reached if the state pays adequate compensation for the expropriated property which must effectively reflect its market price.
Moreover, considering that expropriation is a derogation from the cardinal principle that each and every person has the fundamental right to enjoy his property as he may deem fit, obviously subject to that enjoyment being within legal limits, the violation of that right may only be remedied if the owner of the expropriated land receives a just and adequate amount of compensation which reflects the real value of the property expropriated.
This in practice means that the prejudice the owner suffers may only be relieved if the owner receives a price for the property which is equal to the price he would have received had he freely sold the property on the market.
At present the price the owner receives for the property is calculated by the Commissioner of Lands, who has the expropriated property valued by an architect appointed by the department itself. In most cases the architect is employed on a retainer and therefore the valuation given may never be considered as being independent or impartial. This often leaves the owner in a situation where the compensation offered is considerably less than the market value of the property and therefore the owner will have to decide whether to accept the compensation offered or whether to proceed judicially.
In these circumstances the owner of the land has a right to file proceedings against the Commissioner of Lands before the Land Arbitration Board, which serves as a means of redress for the citizen. During the proceedings, two independent architects are appointed and ordered to inspect the property and draw up their own valuation, which will, in nearly all circumstances, be the amount of compensation awarded by the board once the case is decided.
This whole process leads to the payment of compensation being delayed and therefore amendments to the law should be introduced by means of which the valuation of the property would not be calculated by the Commissioner of Lands, but rather by two architects appointed by the board directly, therefore ensuring an impartial and independent valuation of the property from the outset.
Despite the fact that the expropriation of land, if done in the public interest, is legally permissible and is not deemed as an infringement of the citizen’s right to peacefully enjoy his property, and despite the fact that compensation reflecting the market value of the property satisfies the requisite of proportionality, morally, there is no amount of compensation which can remedy the fact that the owner is ultimately deprived from making a free and unhindered decision on matters concerning his property.
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Daniel Buttigieg works with Fenech & Fenech Advocates and specialises in dispute resolution and litigation matters.