ABDILLA v. MALTA
Inadmissible
Christos Rozakis
The applicant, Mr Salvatore Abdilla, is a Maltese national, who was born in 1925 and lives in Birzebbuga (Malta). He is represented before the Court by Mrs M.A. Farrugia and Mr P. Lofaro, two lawyers practising respectively in St. Venera and in Valletta (Malta). The respondent Government were represented by their Agent, Mr S. Camilleri, Attorney General. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant owned a farm and an adjacent portion of land in Zebbug, close to a road called Notabile Road. According to the original Government development schemes, a small part of this land should have been expropriated in order to widen the road with 60 centimetres. In 1985 the Maltese authorities entered into the property of the applicant, demolished parts of it and took 136.1 square meters of it. By a Presidential Declaration of 27 January 1986 (no. 78), issued in terms of the Land Acquisition Public Purposes Ordinance (Chapter 88 of the Laws of Malta), it was declared that the property taken from the applicant was required for a public purpose. The Presidential Declaration was published in the Government Gazette of 4 February 1986, as required by Article 9(1) of Chapter 88 of the Laws of Malta. At the relevant time, this publication did not transfer the ownership of the land to the Government. In particular, it was provided that the Commissioner of Lands should serve a copy of the Presidential Declaration on the owner of the land, together with a “notice to treat” informing him or her about the amount that the Commissioner was willing to pay. The owner subsequently had 21 days to state the amount which he claimed as compensation. If the owner and the Commissioner agreed on the amount of the compensation due, either party could request the Land Arbitration Board to make an order carrying the agreement into effect. In case of disagreement between the owner and the Commissioner, the latter should file an application with the Land Arbitration Board requesting it to determine the amount of compensation due. In either case, a public deed of transfer had to be signed by the Government and the owner. In the present case, until 2002 the Commissioner of Lands did not serve on the applicant the Presidential Declaration and the notice to treat. Therefore, the procedure to compensate the applicant and to transfer the legal ownership of the land was not initiated. In 2002 Chapter 88 of the Laws of Malta was amended. Under the new Article 22 of this Chapter, ownership of the property is transferred upon publication of the Presidential Declaration in the Government Gazette. According to the new rules, the Presidential Declaration should state the amount that the Government will pay as compensation, to be deposited in an interest-bearing bank account. If the owner of the land does not consider this amount adequate, he may institute proceedings before the Land Arbitration Board. According to a transitory provision of law, when, as in the applicant’s case, a Presidential Declaration had been issued before the entry into force of the 2002 amendments, the President should issue a fresh declaration wherein he shall state the amount of compensation which the Commissioner of Lands is willing to pay. According to the information provided for by the applicant on 24 March 2005, on that date no such fresh Presidential Declaration had been served on him. As a consequence, the applicant is still the legal owner of the land. The applicant alleged that in the meantime one of his neighbours, Mr Z., had been planning to develop his property into a petrol station and had been preparing the necessary infrastructures to do so. According to the applicant, Mr Z. was known as being very well connected with the then current administration. The applicant’s allegations were disputed by the Government on the ground that they were unsubstantiated. The original Government development schemes were not followed, and Notabile road, Zebbug was widened and re-aligned differently. According to the applicant, the result of these changes was that motor vehicles were driven into the planned petrol station and evasive action should be taken if a vehicle did not want to enter into it. If a vehicle had continued straight, it would have collided into the wall of Mr Z.’s property. Since 1989 the Traffic Control Board had requested the road department to re-locate the wall in issue, which was eventually demolished and moved backward. The applicant produced a plan which was annexed to the Presidential Declaration. According to the applicant, this document showed that the land was expropriated in such a way to make the main road lead directly into the property of Mr Z., thus creating an unnatural series of S bends. The re-alignment and widening of the road directed the traffic into three deviations, one to the left into the applicant’s property, then to the right to meet the roundabout alignment and finally to the left again to continue on the main road. The Government disputed these allegations. They argued that the description given by the applicant was “charged with poetic licence and substantially misleading”. Relying on seven photographs and on an aerial view of the area in question, they challenged the view that the taking of part of the applicant’s land was done also in order to facilitate access to the petrol station. The allegedly planned petrol station was never opened. On 3 April 1992 the applicant instituted proceedings before the Civil Court (First Hall) in its constitutional jurisdiction against the Parliamentary Secretary for the Environment and Lands and against the Commissioner of Lands. He claimed that he had been deprived of his property illegally and without compensation and alleged a violation of Articles 37 and 38 of the Constitution of Malta as well as of Article 8 of the Convention and Article 1 of Protocol No. 1. The applicant submitted that the Presidential Declaration of 27 January 1986 was null and void and requested to be reinstated in his possession and to be granted a financial compensation for the loss suffered. In a judgment of 24 November 1995 the Civil Court dismissed the applicant’s claims. It held that as the acts complained of took place before 30 April 1987 (date of the incorporation of the Convention into the Maltese legal system), it had no power to decide on the alleged breach of the applicant’s rights under Article 8 of the Convention and Article 1 of Protocol No. 1. As far as the Constitution of Malta was concerned, there was no doubt that the applicant could have invoked the alleged breach of Article 38 (right to the protection of home) in front of the ordinary courts, asking them to impede the authorities from demolishing his farm. The same could not be said with regard to Article 37 of the Constitution (protection of property); however, it was apparent that the expropriation was done for a “public purpose”. This did not exclude the possibility that the expropriation might have involved the interest of third parties, provided that the use made by the said parties was connected with or ancillary to the public interest or utility. In the present case, in 1975 the architect of the Department of Lands had expressed the view that the realignment of the road was inevitable and in 1977 the Department of Lands had written to the Departments of Works to confirm that the expropriation had to be done. The latter was part of a project involving the entire road linking Zebbug and the town of Mdina. It was true that according to the original plan, the applicant’s property was going to be only slightly affected. However, the project was changed and the road went much deeper into the applicant’s land, leading to a petrol station, owned by Mr Z. The Civil Court could accept that the expropriation was done also in the interests of third parties, but this did not exclude the existence of a public purpose, as there was no doubt that a petrol station was of utility to the public. The applicant appealed to the Constitutional Court. In a judgment of 30 May 2003, the Constitutional Court declared that the taking of the applicant’s property before the issuing of the Presidential Declaration of 27 January 1986 constituted a violation of the plaintiff’s right of property (guaranteed by Article 38 of the Maltese Constitution and Article 1 of Protocol No. 1) and granted him a compensation amounting to 100 Maltese Liras (Lm – approximately 240 euros (EUR)). The Constitutional Court confirmed the judgment of the Civil Court as to the remainder and decided that the legal expenses should be borne one-third by the applicant and two-thirds by the respondents. The Constitutional Court first observed that the Presidential Declaration was only the commencement of the expropriation procedure, which entailed an interference with the right guaranteed by Article 1 of Protocol No. 1 lasting until the individual was unable to enjoy his possessions or until there was effective transfer of property. Thus, notwithstanding the fact that the Presidential Declaration was issued before 30 April 1987, the matter felt within the competence ratione temporis of the Constitutional Court. As to the lawfulness of the expropriation, it was to be noted that the authorities had entered the applicant’s property and demolished his farm already in 1985. This action was illegal as it was taken prior to the issuing of the Presidential Declaration and without prior notification. Moreover, the applicant did not have at his disposal any adequate means of redress, as any judicial action he might have commenced would have been nullified by the issuing of the Presidential Declaration. As far as the applicant was complaining that the expropriation was not done for a public purpose, but to serve the interests of Mr Z., the Constitutional Court observed that only a deprivation of property effected for no reason other than to confer a private benefit on a private party could not be “in the public interest”. As the European Court of Human Rights had pointed out in the case of James and Others v. the United Kingdom (judgment of 21 February 1986, Series A no. 98), the compulsory transfer of property from one individual to another might, depending upon the circumstances, constitute a legitimate aim for promoting public interest. The Constitutional Court therefore did not see any reason to depart from the Civil Court’s finding that, after the issuing of the Presidential Declaration, the expropriation pursued a legitimate aim. The acquisition of land for public purposes is regulated by Chapter 88 of the Laws of Malta. As amended in 2002, the relevant provisions of this Chapter read as follows. Article 7 § 2 "(a) With respect to land subject to a declaration by the President before the coming into force of this article ... article 12(3) of the Ordinance as amended by this article shall apply ... Provided that the interests as aforesaid shall be calculated on the value of the land on the date of the President’s Declaration or where no such Declaration was issued prior to the coming into force of this article on the date of taking over by Government of the land in question. (b) (i) The President may in relation to any land subject of a Declaration issued before the coming into force of this article issue a fresh Declaration wherein shall be stated the amount of compensation which the competent authority is willing to pay for the land to which the Declaration refers. ... Provided that when such fresh Declaration is issued the compensation shall be determined on the basis of the value of such land on the date of the service of any notice to treat in respect of such land, and where no such notice to treat has been so served, on the date of the issue of the fresh Declaration by the President. ...” Article 12 § 3 “(3) Simple interest at the rate of five per centum per annum shall accrue on a daily basis in favour of any person having a right to compensation in respect of any land acquired by the absolute purchase thereof under this Ordinance, from the date of the Declaration of the President up to the date when the compensation is paid or deposited in accordance with article 22. The interest due shall accrue on the amount of compensation as established in accordance with this Ordinance.” Article 22 §§ 1, 2, 3, 6, 7 and 10 “(1) If the competent authority and the owner agree as to the amount of compensation for any land, the Board, on the application of any one of the parties, shall make an order carrying the agreement into effect ... (2) Where the land is to be acquired by the absolute purchase thereof ..., the President’s Declaration ..., shall state the amount of compensation which the competent authority is willing to pay for the land to which the declaration refers. ... (3) Within fifteen working days from the publication of the President’s Declaration as is referred to in subarticle (2) in the Gazette the Government shall deposit in an interest bearing bank account (which will guarantee a minimum of interest per annum as the Minister responsible for lands may by regulation under this subarticle prescribe) a sum equal to the amount of compensation offered in the President’s Declaration. Such sum shall be freely withdrawn together with any interests accrued thereon by the person or persons entitled to such compensation upon evidence to the entitlement thereto, in a manner satisfactory to the competent authority. ... (6) Where the person entitled to compensation does not accept that the amount deposited is adequate, such person may apply to the Board for the determination of the compensation in accordance with the provisions of this Ordinance. Such application shall, on pain of nullity, state the compensation that in the opinion of the applicant is due. (7) Such application shall be filed in the Registry of the Board ... The Board shall determine such compensation and shall give all necessary orders and directives in accordance with this Ordinance. (10) Where the compensation payable in respect of land acquired by the absolute purchase thereof is determined, whether by agreement or by decision of the Board, any sum due as compensation over and above any sum deposited in accordance with this article together with interests thereon in accordance with article 12(3), shall be paid to the person entitled thereto by the competent authority not later than three months from the date on which such compensation was determined as aforesaid.” Article 27 § 1 “(1) Without prejudice to any special provision contained in this Ordinance, in assessing compensation the Board shall act in accordance with the following rules: (a) no allowance shall be made on account of the acquisition being compulsory; (b) the value of the land shall, subject as hereinafter provided, be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realize ...”