Although constitutional redress proceedings were an effective remedy in theory, they were not so in practice, the European Court of Human Rights ruled in two cases involving requisitioned properties in Paola and Qormi.

In the circumstances, it noted, such proceedings could not be considered as an effective remedy for the purposes of the European Human Rights Convention with regard to arguable complaints on requisition orders which, though lawful and seeking legitimate objectives, imposed an excessive individual burden on the owners.

The relevant provision of the convention says: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The cases were about a 20th-century corner townhouse in Nazzarenu Street, Paola, and a property situated in an alley in St Francis Square, Qormi. The first had been requisitioned in April 1986 and the other in December 1992.

The four owners of the Paola house – Mary Grech, Christopher Mintoff, Stephanie Mintoff and Lilian Wismayer –instituted constitutional redress proceedings in May 2007, asking for the requisition order to be annulled, that the property be returned to them and that compensation be awarded for any damage suffered as a result of the occupation of the premises and the breach of their right to property.

The Civil Court (First Hall), in its constitutional competence, found, four years later, that the owners’ right to property had been violated. Being unable to annul the requisition order, as it had been withdrawn during the proceedings, the court ordered that the property should be returned free and unencumbered to the owners, who were awarded €7,535 as compensation.

The sums did not constitute adequate redress

Both the government and the owners appealed and, in 2014, the Constitutional Court found that the compensation awarded was too low. A few months later, the keys were returned to the owners and the property given back in a poor state. The owners claimed the house was not habitable, pointing their fingers at the government, and took their case to Strasbourg.

The European judges, including Chief Justice Emeritus Vincent De Gaetano, decided that the redress provided by the Constitutional Court did not offer sufficient relief to the owners.

The European Court awarded the owners a total of €13,400 in moral and material damages as well as to cover expenses.

The house in Qormi, belonging to Edward Zammit Maempel and Cynthia Zammit Maempel, had been granted on emphyteusis for 21 years to a couple in late 1986 and was eventually requisitioned on the last day of 1992 and allocated to another couple. No reason for the requisition was given.

The two owners of the house instituted a constitutional case in 2009 claiming their right to property was violated. The court decided in their favour in the first quarter of 2013 and both the government and the Housing Authority appealed.

The Constitutional Court confirmed that the requisition order violated the owners’ rights but revoked the first court’s order to evict the couple occupying the premises as well as the annulment of the requisition order. It also reduced the compensation due as moral damages from €50,000 to €12,000. The owners were also to pay one-fifth of the costs of the appeal.

The Constitutional Court commented in its judgment that constitutional redress proceedings should not serve as a replacement to ordinary remedies available to the owners. It observed that the owners took a long time before proceeding to protect their fundamental rights, about 17 years after the violation of their rights first occurred.

The European Court concluded that, under Maltese law, aggrieved owners could seek constitutional redress. However, when assessing whether such a remedy could prevent an alleged violation or its continuation, it found that although the courts of constitutional jurisdiction could annul an order and evict a tenant, it was clear from the case-law brought to its attention that in situations such as this case, where a lawful requisition imposed an excessive burden on an owners leading to a violation, the courts of constitutional jurisdiction, particularly the Constitutional Court on appeal, did not take such action.

The court also noted it had repeatedly found that the sums awarded in compensation by the Constitutional Court did not constitute adequate redress. Moreover, awards often failed to include moral damages and/or burdened owners with an order to foot the bill for the relevant costs.

The two owners of the Qormi house were awarded €33,000 in material damages and €3,230 in respect of costs and expenses.

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