The European Court of Human Rights repeatedly raises the damages awarded by the Constitutional Court to owners of requisitioned or rented properties. Victor Paul Borg unwraps the issue.
After a legal battle in Valletta and in Strasbourg stretching longer than 15 years, Edward Zammit Maempel balks in the face of partial victory. “I don’t know what to do,” he says. “We have lost many years in a ruinous battle.”
Mr Zammit Maempel* is talking about the family house in Qormi that he has never been able to call his own. “If I had had a chance to renovate the property and rent it, it would have made a huge difference in my life. Now even the compensation is not enough to fix the damage and degradation sustained by the place over the years [lost in court battles]. This whole saga shows the incompetence of the court.”
It’s become a familiar lament in property cases abusively requisitioned by the government or rented out privately for a pittance.
But now the disputes have been electrified by the emergence of a new scenario. Malta has lost case after case taken by complainants to the European Court of Human Rights (ECHR), whose rulings have overruled Malta’s Constitutional Court at considerable financial and reputational cost to Malta.
Extensive research of ECHR archives by The Sunday Times of Malta has found a cluster of eight cases decided since the beginning of 2018, all lost by the Maltese government at a cumulative cost of more than €1 million (see below) in damages awarded to plaintiffs, as well as unquantifiable costs in human resources and overheads.
The losses have become so consistently beleaguering that two weeks ago the government brokered out-of-court settlements with the applicants in four cases that were pending in front of the ECHR.
The predictability of these cases has turned them into a source of bounty for a handful of lawyers. One in particular – whose name is known to this newspaper – has become the go-to lawyer for filing these cases in the ECtHR. The probability of winning the case is so high that this newspaper is informed of “a couple” of lawyers who solicit clients with the offer of only charging a fee for their work if they win the case.
“It is futile for the Maltese Constitutional Court to continue to rule differently if the ECHR found a human rights breach in a particular type of case,” says Joe Zammit Maempel, a veteran lawyer who has recently handled one such case.
I think there is an element of pride in judges not wanting to submit to rulings of the European Court of Human Rights
“Eighteen judgments were delivered by the Constitutional Court on a day before Christmas including my case. Damages awarded by a lower court were reduced in each of those cases.”
In Dr Zammit Maempel’s client's case the government had requisitioned 2,500 square metres of land in Żebbuġ without having paid any compensation 50 years after the expropriation. In 2017 the convolutedly-named Civil Court First Hall (Constitutional Jurisdiction) – which will be shortened here to Civil Court – awarded his clients €50,000 in damages. The government appealed, and the Constitutional Court slashed the damages to €20,000. Now the complainants are taking the case to the ECtHR in Strasbourg.
“The Constitutional Court has to accept that there is a superior court where human rights are concerned, which is the ECHR, and that it has to bow to that court’s directions and review its judgments accordingly,” said Dr Zammit Maempel.
Signs that Malta’s Constitutional Court has adapted in response to the ECtHR’s snubs of its decisions are yet to be seen. The cases have become a pattern.
In the case of the Zammit Maempel family mentioned at the beginning of this article, for example, their house had been rented in 1986 for 21 years. Then, in 1992, the housing department requisitioned it, flouting the principle of “protection of property.”
The Zammit Maempels requested damages amounting to €98,000, the Civil Court awarded them €50,000, which was truncated to €12,000 by the Constitutional Court after the government appealed.
Then the ECHR topped that by €33,000 last January, bringing the total figure to €45,000 – which is €5,000 shy of the initial amount set by the Civil Court.
Asked why the government was now suddenly settling claims out of court, Dr Zammit Maempel used an analogy. “If you cause a car accident and you cause damages you either pay the other party, or you are taken to court. If you do not have a case in court, then it would be better to settle out of court to avoid court expenses.”
Questions sent to Justice Minister Owen Bonnici – including the implications of the government settling out of court with four plaintiffs two weeks ago, and what message that gives to Malta’s Constitutional Court – remained unanswered by the deadline set in the email.
Senior lawyers who spoke to the newspaper were scathing of Malta’s Constitutional Court. One lawyer who spoke on condition of anonymity described its decisions as being “nonsensical.” He talked of a “post-colonial hangover in its stubbornness to accept the superior status of the ECHR. It’s as if there is this attitude that no one is above us anymore.”
Another lawyer also speaking anonymously concurred: “I think there is an element of pride in judges not wanting to submit to rulings of the ECHR.”
“Unfortunately,” he added, “instead of being the paladin of the individual’s human rights, the Constitutional Court often takes other considerations and attempts to defend the government. One of those considerations may be that awarding significant damages in these property cases could create a large financial burden on the State.”
“But that is false reasoning in human rights, and we have to observe the parameters established by the ECHR.”
The squeeze of property rights
Malta is party to the Council of Europe’s European Convention on Human Rights which is enforced by Europe’s highest court, the European Court of Human Rights (ECHR).
Initial recourse for redress to human rights’ violations rests with the domestic courts: the Civil Court (in its constitutional jurisdiction) in the first instance, the Constitutional Court in the second instance. Anyone aggrieved by decisions of these courts can then resort to the ECHR.
All cases listed below were filed for breaches of one or both ECHR principles: “protection of property” and “right to an effective remedy”. All but one of the judgments were delivered since the beginning of 2018.
Case of Zammit Maempels: €50,000 damages awarded by Civil Court in 2013, lowered to €12,000 by Constitutional Court after government appealed in 2014, raised by an additional €33,000 on January 15, 2019 by ECHR.
Case of Grech and others: In 2011 the Civil Court fixed compensation for pecuniary damages at €7,535, the Constitutional Court awarded an extra €5,000 in non-pecuniary damages in 2014, and ECHR upped the amount again by an additional €13,400 on January 15, 2019.
Case of Cachia and others: After government requisitioned property, the Civil Court ordered restitution of property and payment of damages of €30,000. Constitutional Court overturned decision of lower court on government’s appeal. ECHR held on January 22, 2019 that there was breach of ‘protection of property’ but did not award damages on a technicality, without prejudicing any claims made in Maltese courts.
Case of Buttigieg and others: In 2014 the Civil Court dismissed claim with costs to applicants, a decision that was reconfirmed by the Constitutional Court in 2015. In 2018 the ECHR awarded them €35,500 in damages.
Case of Bradshaw and others: Pertaining to King’s Own Band Club in Valletta, in 2013 the Civil Court awarded damages of €300,000, a decision overturned by the Constitutional Court in 2015. In 2018 the ECHR set damages at €610,700.
Case of B Tagliaferro and Sons Ltd: In 2012 the Civil Court assigned damages of €20,000, and in 2013 the Constitutional Court raised non-pecuniary damages by €30,000. In 2018 the ECHR added yet an additional €214,500 in damages.
Case of Galea and others: In 2012 the Civil Court awarded €40,000 in non-pecuniary damages, the Constitutional Court truncated the amount to €13,000 in 2013, and five years later the ECHR topped it by an additional €25,000.
Case of Cassar: In 2011 the Civil Court ordered tenants to vacate a property, a decision overruled by the Constitutional Court. In 2018 the ECHR awarded owners €183,000 in damages.
Case of Apap Bologna: In 2011 the Civil Court set damages at €21,000, which were lowered to €16,000 by Constitutional Court the following year. In 2016 the ECHR awarded an additional €40,000 to claimants.
Lawyers probe Constitutional Court in test case over ‘exhaustion of ordinary remedies’
In an 18-page application filed last Friday, three lawyers led by Franco Debono are probing the Constitutional Court following a partial vindication in a judgment delivered by the Civil Court First Hall (Constitutional Jurisdiction) on February 28, 2019.
It arises from the case of Stephen Pirotta who was sentenced to 18 years imprisonment over a road-rage incident that led to stabbings in 2005.
In the initial application three years ago, Dr Debono and his colleagues – Marion Camilleri and Amadeus Cachia – posited that denial of lawyer at the point of arrest and interrogation, and non-disclosure of the police file to the arrestee, amounted to violation of the “right to a fair trial”.
The court in its constitutional jurisdiction, presided by Judge Joseph R Micallef, adjourned the case 13 times over an 18-month period, prompting the lawyers to file a judicial protest last January 25, claiming that the delay was an additional breach of Mr Pirotta’s rights. Judgment was then delivered a month later, on February 28.
Among others, the court’s judgment entered into the merits of whether the statement given to police by Mr Pirotta was consequential to the establishment of guilt, and whether removal of statement would have determined the outcome of the prosecution. Another point made was that Mr Pirotta or his lawyers at the time of trial and criminal appeal – who were not the same lawyers filing for human rights breaches at this point in time – did not object to the police statement being used as evidence in court. An argument is made that any party who does not make use of ‘ordinary remedies’ (in this case, not objecting to inclusion of police statement) during the course of the trial or process itself could then, after the sentence is handed down, resort to “constitutional” remedies in a bid to revoke the sentence.
This reasoning, which is often invoked in Maltese human-rights rulings, has been denounced by justice grandee Judge Emeritus Giovanni Bonello in his recent book Misunderstanding the Constitution. Judge Emeritus Bonello, who sat on the ECtHR for 12 years, wrote that “the constitutional courts have subverted the Constitution, ludicrously and fatally, by refusing any redress to victims of human rights abuse, ‘because they have not exhausted ordinary remedies’.”
In the application to the Constitutional Court, the lawyers latch onto the fact that the court did find a breach in human rights and awarded Mr Pirotta €3,000 in damages. They then argue that the police statement was indeed a crucial piece of evidence. They also emphasise the Maltese state’s tardiness in introducing the right to lawyer at point of arrest, and that the ECHR has in the past snubbed Malta for attempting to narrow such right. The ECHR had argued that by introducing a caveat to this right – the “vulnerability of the defendant” – the Maltese Constitutional Court had “chose[n] to contradict the letter and the spirit of the Grand Chamber’s judgment”.
On these points, the lawyers are requesting the Constitutional Court to reconfirm the breach of human rights and grant suitable remedies – by implication, the nullification of the sentence and retrial of the case.
* Dr Zammit Maempel has nothing to do with the case of Edward Zammit Maempel and his sister mentioned in the article. Although the two of them are distant relatives, their respective cases mentioned in this article are unrelated (Dr Zammit Maempel 'case' refers to his clients' case) and they feature in this article coincidentally.
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