Agnes Gera de Petri Testaferrata Bonnici Ghaxaq

vs

The Attorney General & the Commissioner of Lands

Constitutional Court

Chief Justice Vincent DeGaetano

Judges

Joseph D. Camilleri

Joseph A. Filletti

21 February 2008

This case concerning expropriation of a property was an appeal from a judgement delivered by the First Hall, Civil Court on 29 November, 2007.

The property, a palace located in Valletta, was expropriated by the government in 1958. The government eventually transferred it to third parties being commercial entities. The plaintiff filed an action against the Attorney General (AG) and Commissioner of Lands claiming that this expropriation was in breach of her fundamental right to the peaceful enjoyment of her possessions. She claimed that her land was expropriated with no public interest purpose, that the compensation awarded to her was inadequate and that all this was in breach of the European Convention For the Protection of Human Rights and Fundamental freedoms.

The First Hall Civil Court had initially held that the property in question was not expropriated in the public interest and declared the same expropriation as null and without effect, in line with Article 1 of the First Protocol ordering the release of the same property in favour of the Plaintiff. The Court also held that there was a breach of Article 6 of the ECHR which guarantees the right to a fair hearing.

Article 1 Protocol 1 states that: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Article 6 of the ECHR holds that “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”

The AG and Commissioner appealed this judgement. The property in question was in 1998 valued ‘unoccupied and in the open market’ at Lm800,000. The plaintiff and her predecessors were deprived of this property since 1958 but were being compensated for use and possession at a rate of Lm210 per annum. The property was earning the Manoel Theatre Management Committee between Lm5,000 to Lm6,000 per annum through the renting out of parts of this palace. The Court held that is was unjust that profits arising from such property were given to the theatre at the expense of a single ordinary citizen deprived of her own property by virtue of expropriation which evidently had not been done in conformity with the exceptions to the right to the peaceful enjoyment of possessions contemplated by Article 1, Protocol 1. This Court agreed with the First Hall Civil Court stating that the expropriation of this land was a clear breach of Protocol 1 of the ECHR.

The issue that arose in this dispute was the fact that the Court of First Instance had declared that Article 6 of the ECHR was breached and the remedy for such a breach was the condemnation of the government to the payment of damages due to the plaintiff for the damages and losses suffered as from 1958 when the expropriation actually took place. However, since the Constitutional Court did not find a breach of Article 6 and revoked the part of the First Hall’s judgement declaring the finding of such breach, it was a natural consequence that no damages would be due.

Reference was made by the plaintiff to Article 235 of the Code of Organisation and Civil Procedure (Chapter 12 – Laws of Malta) which deals with the consequences of a Court of First Instance not tackling all claims put forward. However, it was stated by the Court that it was clear that in this case, the First Hall Civil Court had dealt with all claims exhaustively. This Court ruled in favour of the AG and Commissioner of Lands by, among other things, declaring Article 235 as inapplicable to the dispute in question.

Agnes Gera de Petri Testaferrata Bonici Ghaxaq appealed this decision on the grounds that the issue of compensation due to her in consideration of the damage suffered during the period of expropriation in breach of Article 1, Protocol 1 of the ECHR remained unconsidered.

This Constitutional Court expressed its understanding of the fact that the Court of Instance had made this issue crystal clear i.e. in the event of a breach of Article 1, Protocol 1 of the ECHR, a declaration of the nullity of the expropriation was sufficient. The Constitutional Court repeated that the First Hall Civil Court had only contemplated damages to be paid as compensation in the event that it was ruled that there was a breach of Article 6 of the ECHR. However, the Constitutional Court had found that there was no such breach of article. Hence it was only logical that once there was no such breach, the corresponding damages were not due.