Almost five decades after land was expropriated to build the Freeport, 10 part owners have yet to be compensated, leading the European Court of Human Rights to find a violation of their right to property.

The case involves seven plots of land in Kalafrana and Bengħajsa, limits of Birżebbuġa, part of which were used for Malta Freeport. The applicants’ father, who owned the land, had been offered €10,464 in compensation for six of the plots but he refused. Parts of the six plots were not used to site the Freeport as such and the seventh remains unused to date. 

The government had claimed that, though not built upon, none of the six plots were left unused but served as a buffer zone for security purposes.

In 1997, that is, 28 years after the plots were taken over by the government, the applicants’ father instituted constitutional proceedings and the court found in his favour, declaring the government’s acquisition declaration on the land beyond the Freeport zone as void.

However, the issue regarding compensation for the other land remained pending and, in 2006, the owner and his wife sought constitutional redress in connection with the land actually used for the Freeport and the seventh plot. They insisted the land had not been expropriated for a public purpose but for commercial reasons. The Freeport had been privatised in 2001 and sold to an international company three years later.

The court decided that the owner’s right to property was violated when the seventh plot was expropriated and remained unused. 

It ordered the land to be released and awarded compensation amounting to €30,000. The court found that the other land had been taken over in the public interest. 

Both the owner and the government appealed, the Constitutional Court upholding the first but not the second appeal and concluding that the first six plots had been acquired by the government in the interest of the country’s economic development. It also withdrew the compensation awarded by the first court in respect of the seventh plot, since ownership had not been proved.

Ten of the owner’s children took the case to the Strasbourg Court in late 2014. Their case was decided by a committee of three judges rather than the usual seven-member panel, as the subject at issue was within the ‘well-established case law’ principle insofar as Malta was concerned. The government argued the seventh plot could still be used in the future to pass gas pipes, even if testimony suggested this was hypothetical.

The European judges recalled what the Strasbourg Court had declared in a similar case involving the Freeport, that a project of this scale could require further expansion, although, when expropriating land, the government should have had some concrete plans at least for its forthcoming, if not its imminent, development.

They noted that no use had been made of the part of the seventh plot owned by the applicants and taken over nearly 50 years ago. It could not be said that the delay in making use of that land was itself based on any public interest concern. Moreover, the land had become more valuable.

The European Court commented that the fact that after five decades the part owners had still not received any compensation meant they had also to bear “a disproportionate burden”, thus violating their right to property.

Since the applicants did not make a claim for just satisfaction, the court found there was no call to award them any sum of money in that sense, without prejudice to any compensation they could still get from Malta.

Lawyers David Camilleri, Joseph Gatt and Mario deMarco represented the residents.

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