An analysis of the implications of article 1 protocol 1 on direct and indirect expropriation under Maltese law

Abstract

Where the requisites of lawfulness, legitimacy and proportionality are satisfied, expropriation is deemed to be a justified limitation to one’s right to property as safeguarded under Article 1 Protocol No.1 of the European Convention on Human Rights. This notion of expropriation is governed under the relatively newly enacted Government Lands Act, which has as one of its aims, that of preventing bureaucracy and complexities alike to those that emanated from the previous expropriating legislation. This paper intends to analyse whether the Government Lands Act is sufficient to achieve the intended increased legal certainty required to counteract the breaches to dispossessed owners’ right to property. On account of this the first section entails a comparative assessment of the Land Acquisition (Public Purposes) Ordinance and the Government Lands Act to shed light on the vast improvement rendered in the latter. Furthermore, through an analysis of domestic jurisprudence and that of the European Court of Human Right, the shortcomings that subsisted under the Ordinance are highlighted, with a focus on the compensation element in the acquisition of property under title of absolute purchase. Moreover, by way of such jurisprudence the effectiveness or otherwise of the newly enacted provisions of the Act is assessed in the second section, and an analysis of the notion of de facto expropriation leading to breaches of the right to property, in the third section. This is in pursuit of the aim to establish whether a lacunae persists with regard to addressing breaches of landowners’ right to property in the formal or de facto expropriation of their property. On the basis of such assessments this study proceeds to conclude that the Government Lands Act has succeeded in achieving a notable degree of increased legal certainty. However, the Act’s shortcomings may be evident in the time-restricted applicability of the newly added intervening remedies.