Emanuel & Mary Camilleri

Vs

Commissioner of Lands & the Attorney General

Judges

Vincent Degaetano

Joseph D. Camilleri

Joseph A. Filletti

Constitutional Court

11 April 2006

This was an appeal from a June 2005 judgement of the First Hall, Civil Court (Constitutional jurisdiction), which had ruled in favour of plaintiffs. The Land (Compulsory Eviction) Act (Chapter 228 – Laws of Malta) particularly Article 3, was put to the test of human rights infringement.

Plaintiffs claimed to have occupied interconnected tenements at 45, 46 and 47 in Siggiewi for the past 30 years as their sole ordinary residence together with their children. Originally, these tenements were leased to a certain Antonio Pace, now deceased, with whom the Camilleri family lived until his death and continued living with the Curia’s consent. Eventually these tenements passed into the government’s hands by virtue of the Church State Agreement incorporated in the Ecclesiastical Entities (Properties) Act of 1992 (Chapter 358 – Laws of Malta). The rent kept on being paid to the Joint Office, an office run jointly by the civil and ecclesiastical authorities set up with the aim of surveying and administering property affected by such Act. Plaintiffs claimed that they always had access to and use of all parts of the tenements except number 45 which was a store but also accessible from their yard.

In 2004, they received an eviction order from the Commissioner of Lands, requesting them to vacate tenements 45 and 47 within three days of receipt of the order. The Lands Department reserved also its right to compensation until actual eviction.

First Hall, Civil Court

Plaintiffs

• Requested the First Hall, Civil Court to:

• Declare Chapter 228 null and without effect;

• Declare the Commissioner of Lands’ behaviour as being in violation of Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and hence, the order issued by him be declared null and without effect;

• Enforce the remedies available to them including payment of damages;

• Order the Commissioner of Lands to put the eviction order on hold until the case was decided so as not to cause further violations.

Court

ARTICLE 3 (CHAPTER 228)

3(1) The Commissioner, if it appears to him to be necessary or expedient to do so, may in his absolute discretion order the compulsory eviction of any person from any land which is occupied by such person without any title or on encroachment terms or where… the time-period specified in a contract conferring title has lapsed and the removal therefrom of any movable effects, within a specified period of time to be stated in the order, and may for the purpose give such directions as appear to him necessary so that any such order may be put into effect with the least possible delay:

…

… an eviction order so issued shall not constitute an arbitrary exercise of pretended rights in terms of article 85 of the Criminal Code.

(2) If the occupier of any such land does not comply with the order within the period of time so specified, the Commissioner may instruct any police officer not below the rank of inspector to take such steps and use such force as appear to him reasonably necessary for securing compliance with the order…

ARTICLE 6 (ECHR)

Everyone is entitled in the determination of his civil rights and obligations or of any criminal charge against him, to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Plaintiffs claimed they had no effective remedy and no access to an independent and impartial body upon receipt of the eviction order to show that they did have a title.

The 1970 Delcourt Case (European Court of Human Rights) stated “in a democratic society… the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of article 6(1) would not correspond to the aim and the purpose of that provision”.

The Court decided that Article 3 breached Article 6 (ECHR) since there was no access to a Court and recommended that Article 3 be amended.

Chapter 228 gives wide discretionary powers to the Commissioner to evict if he feels that one is occupying government property without title. If this allegation is contested by the occupier, the decision whether there is a title or otherwise should not be taken by the Commissioner but by a Court set up by law having the capacity to hear all relevant evidence and deliver judgment. Plaintiffs were not given a chance to contest the claim that they did not have a title, they were denied a hearing and moreover, the Commissioner was allowed to enjoy the powers to enforce such order to evict in the least time possible.

Defendants claimed that any decision made by the Commissioner could be contested in Court by judicial review of administrative action. The Court did not deem this as an effective remedy since a Court having such competence had limited jurisdiction to observe whether the Principles of Natural Justice were respected and whether the authorities acted within the powers conferred to them by law but lacked jurisdiction to decide upon the facts of the case.

The Commissioner’s action did NOT involve an administrative decision but affected directly the civil rights of the citizen to remain occupying property which the citizen did not acquire clandestinely or violently. The State being a party did not change matters since nowhere in the ECHR or in its travaux préparatoires is there any indication that this right is reserved solely to rights and obligations of a private law character (Ringeisen Case – 1971).

The Court found for plaintiffs and declared Article 3 (Chapter 228) in violation of Article 6 (ECHR) and therefore null and void and ordered the judgment to be sent to the House of Representatives to legislate accordingly.

Constitutional Court

of Appeal

The Attorney General and Commissioner of Lands appealed stating:

(a) An incorrect examination of Article 3 of Chapter 228

(b) Plaintiffs had access to a Court – between the issuing of the eviction order and its execution, there is some time within which the occupant may file a possessory action including an application for a warrant of prohibitory injunction against the Commissioner of Lands.

(c) Before actual eviction, the occupant could contest the allegation proving his title even AFTER the actual eviction through possessory actions as well as by an administrative action against the Commissioner. The following cases were quoted in favour of this argument:

• Vella pro et noe vs Commissioner of Lands et – (2003)

• Mediterranean Film Studios Limited vs Il- Korporazzjoni ghall-Izvilupp ta’ Malta et – (2003)

Court

Although the First Hall enunciated the law and ECHR case-law correctly, their application was however not altogether correct.

It was the eviction order which should have been declared null and void since it ran contrary to Article 6 (ECHR), and not Article 3 of Chapter 228 which as such was NOT in violation of such Article.

The Vella case was irrelevant for the current issue. The Mediterranean Film Studios case stated that the order as per Article 3 can only be made in relation to property occupied without any title or when encroached upon. If not occupied in such a way, the order can be contested in the ordinary courts. The First Hall had stated that the company had to prove its title, shifting the burden of proof onto the occupant implying therefore a loss of rights derived from possession. This shift in the onus of evidence did not reduce the efficacy of the ordinary remedy. The company’s pleas that the ordinary actions were not satisfactory and not sufficient and that they were available only after the breach to their rights had already taken place were not accepted by the Appellate Court as it agreed with the First Hall that the indicated remedies were potentially effective if the company was capable of proving a valid title.

This case confirmed that Article 3 did not violate Article 6 (ECHR). Nothing in the law prohibits the aggrieved occupants from obtaining a prohibitory injunction against the Commissioner of Lands and for a declaration of invalidity of the eviction order by proving a title – unlike Busuttil noe vs Prime Minister et where Article 468 (today repealed) of the Code of Organisation and Civil Procedure specifically provided that no opposition could hinder the execution of an executive warrant of seizure under Article 466 issued upon an oath of the government department concerned. This case had led to the appropriate amendments.

Hence in relation to Article 3, one can apply for a warrant of prohibitory injunction, a remedy that applies upon an examination of the facts of the case by an impartial and independent court fulfilling the right of access to justice as contemplated by Article 6 (ECHR). Yet to be effective, the right of access requires that one be given personal and reasonable notice of an administrative decision with adequate time to have it challenged in court. In De Geouffre de la Pradelle vs France which dealt with a land owner being made aware of his right to appeal after the specified time had already lapsed, the ECHR stated: “the right to a court” is not absolute. It may be subject to limitations, but these must not restrict the access left to the individual in such a way that the very essence of the right is impaired.

There must also be a just balance between the interests of society (represented by Commissioner of Lands) that land in the hands of persons without a title falls back into the State’s hands without unnecessary delay and the interests of individuals who claim a title, to have a reasonable opportunity to prove title before a Court.

In this case, plaintiffs were presented with an eviction order with three days to evict from that part of the property which they considered part of their home. This was an unreasonable time limit even if the Commissioner did not take immediate action. The Constitutional Court did not delve into the inadequacy of the time allowed but merely referred to the Busuttil Case and the amendments it triggered off, as an indication of what could be done.

Hence, the right of access to the Court guaranteed by Article 6 (ECHR) was breached not by Article 3 of Chapter 228 but by the way in which this Article was applied by the Commissioner of Lands to a concrete case.

The Constitutional Court confirmed the judgement only insofar as the eviction order was declared null and void due to a violation of the said Article 6, because of a lack of reasonable notice of an administrative decision which interfered with plaintiffs’ civil rights and obligations, but revoked the rest of the judgement.