Court turns down plea that the applicant has other remedies

The First Hall of the Civil Court in its Constitutional jurisdiction turned down a plea that the applicant should first exhaust all remedies before going to the constitutional court, since the complaint is 50 years old.

This was held in Philip Cauchi, Joseph Cauchi, Margaret Gatt, Mary Frendo, Mary Rose Bugeja, Oreste Cauchi, Doris Caruana in her name and as procurator of the absentee Maria, widow of Filippu Cilia and Commissioner of Lands decided on 17 May, 2016.

The applicants explained to the Court that they are the owners of land in Haz-Zebbug which was expropriated on 23 March, 1965. On 15 July, 2015 the applicants were notified of an offer by the Lands Department as to compensation for the land taken 50 years ago. They alleged that this is in breach of Article 39(2) of the Constitution and Art 6 of the European Convention, since the case was not decided within a reasonable time. The applicants also asked the Court to order the Commissioner of Lands to enter into a contract and pay the commercial value of the land.

The Commissioner of Lands filed the statement of defence stating that the applicants did not exhaust all the ordinary remedies and therefore the constitutional case has been instituted before the right time. The Commissioner explained that the applicants should have used other remedies, such as a damages case.

Ms Justice Lorraine Schembri Orland held that this judgement would limit itself to examining this plea, which is based on Article 46(2) of the Constitution and Article 4(2) of the European Convention. 

The Court has a discretion on this matter and the legal principles attached to this discretion can be found in Ryan Briffa –v- Attorney General decided on 14 March, 2014, which held that an alternative remedy to instituting a constructional case has to result as a fact and that this alternative remedy must be accessible, adequate and effective. This discretion should be exercised in the interest of the administration of justice. This judgement held that the fact that a party does not use one ordinary remedy, does not necessarily mean that the constitutional court should not hear the case. However, if it is shown that there exists another way to obtain a remedy for someone’s complaint, then it should be used before going to the constitutional court. 

In Lawrence Cuschieri –v- the Prime Minister decided by the Constitutional Court on 6 April, 1995, it was explained that the court must not use its discretion capriciously or lightly. The European Court of Human Rights had pronounced itself on similar cases concerning compensation for expropriated property. In Deguara Caruana Gatto –v- Malta decided on 9 July 2013, the court held:

“Abnormally lengthy delays in the payment of compensation for expropriation lead to increased financial loss for the person whose property has been expropriated putting him in a position of uncertainty (see Akkus vs Turkey, 9 July 1997 para.29/) The same applies to abnormally lengthy delays in administrative or judicial proceedings in which such compensation is determined, especially when people whose property has been expropriated are obliged to resort to such proceedings to which they are entitled.”

In another similar case John Caruana –v- Commissioner of Lands, decided on 31 October, 2014, it held that although the Lands Acquisition (Public Purposes) Ordinance, does not give a time limit for the Commissioner to pay compensation. Notwithstanding this, the authority is still bound to settle its dues in a reasonable time from when the government takes possession of the land. In another European Court judgement of 22 November, 2011 in Curmi –v- Malta, the judgement read:

“In so far as the Government argued that the delay in paying compensation was due to the owners, the Court notes that, according to the Land Acquisition (Public Purposes) Ordinance, it was up to the authorities to initiate the relevant compensation proceedings (see also Bezzina Wettinger and Others vs Malta, no. 15091/06, para. 92, 8 April, 2008)… the Court considers that in such cases, owners could not be expected to incur the expense and burden of instituting proceedings to ensure the authorities’ fulfillment of their legal obligation.”

Ms Justice Schembri Orland, agreed with these legal positons. The court considered other remedies available to the applicants as listed in Article 1078(b) of the Civil Code, where one case asks the court to give a debtor a time limit to execute an action. However, the court also noted that this case is one of 50 years although in 2015 a notice to treat was issued. In 2005, the Commissioner started proceedings before arbitration, however, the applicants were not notified with these proceedings. Therefore, the alternative remedies that exist are not effective and will cause further delays and expenses.

The Court turned down this plea and ordered the case to continue.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates