FARRUGIA v. MALTA
Inadmissible
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva
1. The applicants, Mr Giljan Farrugia and Mr John Farrugia are Maltese nationals who were born in 1963 and 1957 respectively and live in St Julian’s. Their application was lodged on 3 November 2010. They were represented before the Court by Dr P.J. Galea, a lawyer practising in Valletta. 2. , may be summarised as follows. 3. The applicants are full-time farmers and farm a considerable area of land which is partly owned and partly held on agricultural lease by them following the death of their father. Prior to their father’s death the applicants also farmed the said land. This land included 205 square metres which had been earmarked for the building of a road. This parcel of land will hereinafter be referred to as land X. 4. On 20 January 1997 the applicants’ late father received a letter from the Ministry of Public Works and Construction asking whether he had come to an agreement over land X with company M who had been attempting to take control of the land. He was informed that failure to reply within a month would lead to expropriation proceedings being commenced. 5. Having failed to reach an agreement for the purchase of land X from the applicants, on 11 August 1997 Company M asked the Government to expropriate the said land, it constituting the only access to its property. At around the same time Company M applied for a permit to build 75 apartments and 170 garages on its property. 6. By a declaration published in the Government Gazette of 31 July 1998, under the Land Acquisition (Public Purposes) Ordinance (“LAPPO”), Chapter 88 of the Laws of Malta, it was stated that land X was being expropriated for a public purpose. 7. On 30 March 1999 the applicants and their father (hereinafter the applicants) instituted constitutional redress proceedings before the Civil Court (First Hall) in its constitutional jurisdiction. They invoked Articles 3, in that their land constituted their only means of making a living, 6 and 8 of the Convention and 1 of Protocol No. 1 since no compulsory taking of land could occur without the payment of adequate compensation and particularly because the taking at issue had been effected solely in the interests of third parties and was not therefore in the public interest. The applicants contended that the proposed street would divide their farm and cultivated land in a way that reduced their very productive land and would make cultivation very different with respect to irrigation and manuring. The existing water reservoirs and livestock would be separated from the cultivated fields, a circumstance which would be disastrous for their livelihood. They noted that they had been cultivating and breeding animals on the said land for forty years, long before the arrival of the present developer. Moreover, they had not been informed of the expropriation until work on the construction of the road was commenced. 8. The following witness testimony was heard: The architect of the Works Department submitted that the Code of Police Laws provided that when a person wanted to develop land the developer had to ensure road access to such land and when this was not possible because the owners would not sell the land, there existed a legal process by which the developer could ask the Commissioner of Lands to expropriate the said land. The land would then be expropriated by the Government and the developer would pay for the said land. An official of the Lands Department submitted that land X had been expropriated in the public interest. Various requests had been made for its expropriation but eventually Company M had signed a deed of obligation. The Government had then expropriated the land. However, the applicants had not accepted the compensation offered to them and it was then deposited in an interest-bearing account. Another official of the Lands Department submitted that the taking had been in the public interest as the land had already been earmarked for the building of a road. He added that although a request had been made by a third party, once expropriated the land remained the property of the Government. 9. By a judgment of 7 October 2009 the court rejected all the complaints. Noting the lack of pleadings on the matter, it held that the expropriation could not be considered as inhuman or degrading treatment under Article 3 and that Article 8 could not apply since the case did not concern the expropriation of a home. Nor did any issue arise under Article 6 as the provision did not provide for a judicial process before the initiation of an expropriation. As to Article 1 of Protocol No. 1 in respect of which proper pleadings had been filed, the court noted that there had been an interference with the applicants’ property rights (partly a deprivation in so far as they owned part of the land, and for the rest a control of use in so far as they held part of the land on agricultural lease). The interference had been in accordance with the law, namely the LAPPO, and the applicants had been offered compensation which they had not accepted. The court established that the applicants could not have been unaware of the expropriation, the details having been published in the Government Gazette. Moreover, land X had been earmarked for the development of a road since 1988. A representative had been on site to estimate the value of the land and had informed the applicants that it was being expropriated. As to the public interest, it considered that Article 2 of the LAPPO did not exclude that an expropriation could also serve the interests of third parties. Thus, while it was true that the expropriation in the present case had been triggered by a third party’s request, since the land had originally been earmarked as a road it could not be said that the taking had not been in the public interest. As to the proportionality of the measure, the court considered that, bearing in mind that land X constituted less than one eighth of the applicants’ entire property, and that the applicants only owned a quarter of the land the rest being held on lease, the applicants would not be made to bear an excessive burden. There had therefore been no violation of the said provision. 10. On 22 October the applicants appealed to the Constitutional Court. By a judgment of 30 July 2010 the Constitutional Court rejected their claims. The court noted that although in their initial application various issues were pleaded, also in relation to the expropriation, the applicants’ appeal had focused on the lack of a public interest. The court held that, as in the cases regarding expropriations for the purposes of the Freeport project, a hospital and a national theatre, and although development of the land was to be carried out by a private third party who would benefit financially from the project, this did not diminish the public interest involved, which in the present case consisted in providing access to a housing complex. Indeed, the Government had a duty to deal with town planning and in consequence the taking in the present case, although to the advantage of third parties, had been made in pursuance of legitimate social and economic policies, namely to create housing for the general public served by adequate roads. 11. Other lawsuits were instituted by the applicants or their late parents, but none were successful. Details of these lawsuits have not been submitted. 12. On 24 August 2005 a new declaration was published in respect of the same land. A new set of constitutional proceedings was instituted in this respect. These proceedings are still pending. 13. Article 2 of the LAPPO, in so far as relevant, reads as follows: “"public purpose" means any purpose connected with exclusive government use or general public use, or connected with or ancillary to the public interest or utility (whether the land is for use by the Government or otherwise) or with or to town-planning or reconstruction or the generation of employment, the furtherance of tourism, the promotion of culture, the preservation of the national or historical identity, or the economic well-being of the State or any purpose connected with the defence of Malta or connected with or ancillary to naval, military or air operations; and includes any other purpose specified as public by any enactment; and for the purposes of this definition, where the purpose for the exercise of any right under this Ordinance is connected with the utilisation of any land or any right in connection or in relation therewith for any purpose connected with the supply, storage or distribution of fuel or other sources of energy, or in connection with the provision of any utility or municipal services or infrastructural project shall be deemed to be connected with or ancillary to the public interest or utility;”