An analysis of human rights jurisprudence on Maltese expropriation law, with a particular emphasis to the remedies awarded to the applicants

Abstract

The fundamental human right of protection of one’s property and personal possessions is guaranteed by Article 37 of the Maltese Constitution. A notable exception is the process of expropriation whereby property is acquired by the government for the public good and this can only done if adequate compensation is provided. This point exactly, has given rise to many cases where applicants contest the amount of compensation and other relevant factors such as the public interest requirement, proportionality, and the fair balance test. Act XIV of 1987, transposed the European Convention on Human Rights and Fundamental Freedoms into our local legislation and by this act, aggrieved landowners who felt that their property rights had been violated could rely on and invoke the Convention, more notably Article 1 of Protocol 1. After exhausting all available ordinary remedies, victims had the option of taking their case to the European Court of Human Rights. The purpose of this research is to determine if the European Court of Human Rights' considerations and remedies awarded, has actually provided additional protection and whether it promotes the preservation of property rights. By comparing remedies issued locally to remedies awarded by the ECtHR, the aim is to discern the difference and determine whether the ECtHR provided better remedies to the applicants. Thus, this study will concentrate on the remedies granted by both Courts and examine how the ECtHR rulings have affected the decisions of the Malta Constitutional Court in this particular area. The study's ultimate goal is to determine if the ECtHR has enhanced our system and resulted in better justice being administered in such expropriation cases.