Very recent and amazing news informed Malta that a litigant, condemned by the court to pay a certain amount, admitted publicly that that sum was too paltry, and that he should have been condemned to fork out six times what the court had ordered. In spite of the judgment in his favour, the debtor voluntarily dishes out to his opponent six times the sum ordered by the court. The debtor agreed that the court had got it 600 per cent wrong.
Sounds incredible, until you learn that the court that made the abysmal ‘mistake’ was the Constitutional Court in a property compensation case, and that the one to benefit by that mistake was the government. Then it sinks in and fits in.
The penny-pinching by the Constitutional Court, in favour of the despoiling government and against owners despoiled by the government, is now glaring, vexatious, proverbial, documented and routine. Owners thwarted by questionable expropriations, abusive requisitions or rapacious laws and dismayed by the protection – very languid – of the courts, have one avenue open: the European Court of Human Rights in Strasbourg (ECtHR). Some of those who tried did not regret it.
This is not about cases where the Constitutional Court, generally wrongly, found no breach of the right to property. But about those cases in which the Maltese courts established a breach, but then fobbed off the victims with no compensation at all, or invited them to dance round the peanut husks it threw at them.
Mrs Gera de Petri owned an important palace in Valletta, taken over by the government for a public purpose in 1958. The owner resisted handing over the property. The government violently smashed it open in 1972, but Christmas came early and the minister offered €490 a year compensation. The Constitutional Court acknowledged a violation, but thought it sufficient to order government to release the property, reserving any rights of the owner for the ‘possession and use’ by the authorities: i.e., no compensation at all. After 30 years’ dispossession, the Constitutional Court did nothing about the government paying nothing.
In 2011, Strasbourg unanimously found the Maltese government guilty and condemned it to €30,000 moral damages and expenses. Then, in 2013, Strasbourg ordered Malta to pay another €160,000 real damages, solely for loss of rent.
In the Frendo Randon case, the government, in 1969, informed the owners of four fields that it required their land for the Freeport scheme. The Commissioner of Lands, repeatedly requested, failed to activate the Land Arbitration Board to establish the compensation. Constitutional proceedings, relating to two fields only, found human rights violations and awarded €100,000 damages. On appeal, the Constitutional Court considered this compensation extravagant, and reduced it to €20,000.
For the other two fields, the lower court awarded €125,000 damages. But the Constitutional Court withered the damages to only €27,000, in both cases, for breach of fair hearing.
In 2011, Strasbourg slammed the Constitutional Court: while acknowledging that the owners had suffered breaches of rights, the Malta court had only given them some compensation for the breach of due process, not for taking their properties, although over 40 years had passed. In 2013, Strasbourg awarded the owners €200,000, plus expenses.
Next came the Azzopardi case, whose company had property (ċens) in Msida. In 1974 the government issued notices to expropriate this land. Many years passed with no payment. The owner tried the constitutional jurisdictions, which confirmed the breach of rights – but only awarded him moral damages. After 37 years, they expected him to start all over again to establish what compensation was due.
Strasbourg unanimously, and vehemently, disagreed. In 2014 it condemned Malta to pay the owner another €451,000.
The Montanaro Gauci family owned a property in Rabat which a squatter broke into in 1987. On the eve of the elections, the government issued a requisition order to give legal title to the intruder, against a rent of €35 per annum. Derequisitioned by the new government, the intruder then had it requisitioned again. The owners’ architect valued the property in 2011 at €230,000.
In constitutional proceedings, the first court found breaches of the owners’ rights, ordered the eviction of the tenant and gave the owners €8000. All parties appealed. The Constitutional Court increased the compensation to €14,000, but allowed the occupier to retain the property.
The Constitutional Court got it wrong 10 times out of 10
The owners complained to Strasbourg. In 2016 the ECtHR unanimously ruled that the Constitutional Court had not given adequate redress and in 2017 ordered Malta to pay them €30,000 compensation.
In 2018 the Strasbourg court decided the case of the Galea family who owned on long lease (ċens) land in Zabbar on which stood a bar they rented to a third party. In 1965 the property was taken over for a civic centre and public roads. In 1972 the government changed the scheme. A larger shop was built on the owners’ property and leased by government to the same barman. The owners requested the return of the bar, now rented at €2,100 annually. The rest of the land was released to the owners in 1988.
In constitutional proceedings, the owners claimed their property had not been taken for public purposes. The court found a lack of proportionality in the expropriation, ordered the return of the property and condemned government to pay €40,000. But the Constitutional Court reversed the judgement, annulled the eviction, shrunk the moral damages to €10,000 and liquidated no material damages.
Strasbourg thumped the Constitutional Court for failing to determine the amount of pecuniary compensation 45 years after the property was taken. Besides the moral damages, Malta was to pay the owners €25,000 material damages and costs.
In the Apap Bologna case, Strasbourg again censured the Constitutional Court for siding with the oppressor against the victim. Briefly, the owner of a large tenement in Gzira, requisitioned in 1976, later found it occupied by a squatter.
After the owner’s objection, government requisitioned it in favour of the squatter for €93 annually. He carried out unauthorised structural alterations. The Constitutional Court found a breach of the owner’s rights and ordered the government to pay him €16,000 compensation,but loaded him with hefty judicial costs.
In 2018, Strasbourg battered the Constitutional Court and ordered Malta to pay the owner €40,000.
Also from 2018 was the Strasbourg judgement on the misfortunes of Ms Vella, owner of a large tenement in Hal Kirkop, requisitioned in 1955 and given over to a band club, which carried out extensive alterations without the owner’s permission. Vella’s house next door was, in 1986, also requisitioned for use by the band club.
The owner challenged the 1955 requisition in the constitutional courts. The first judge ordered the eviction of the tenants and the payment of €30,000 damages. The defendants appealed. The Constitutional Court confirmed the breach of the owner’s rights, allowed the club to retain the premises, confirmed the damages but ordered the owner to pay a considerable part of the costs.
The Strasbourg judges dissented radically from the Constitutional Court and ordered Malta to pay the owner €165,000 in damages and costs.
The Cassar case, falls in a different class. It referred to a large house in Sliema, occupied by unwelcome tenants. It this case, the Constitutional Court could detect no whiff of violation of rights, and gave no redress. In 2018, Strasbourg reversed unanimously, found a violation and condemned Malta €183,000 damages, plus expenses.
Two other property cases from Malta were joined together by the Strasbourg Court. The Tagliaferro and Coleiro companies had undivided properties, in Valletta, which Government seized. The owners disputed the public interest to expropriate and the failure of payment of compensation. Maltese constitutional courts acknowledged the breach of the fair hearing and property rights of the owners, but only awarded €15,000 moral damages to each company, leaving the material damages to be liquidated in the future by the Land Arbitration Board.
In 2018, Strasbourg, running out of patience, found it unacceptable that, after 20 years, the Constitutional Court had failed to determine the material compensation due. It unanimously condemned Malta to pay the two companies €214,500.
Those are 10 Strasbourg property cases. The Constitutional Court got it wrong 10 times out of 10. The error invariably favoured the government, but that’s just nasty coincidence, no?
Pity Justices Scrooge, Shylock and Fagin. You can’t deny they work very hard.
Giovanni Bonello served as Judge of the European Court of Human Rights in Strasbourg for 12 years.