FIRST SECTION

CASE OF ANASTASI AND OTHERS v. MALTA

(Applications nos. 49102/19 and 2 others – see list appended)

This version was rectified on 22 November 2022 under Rule 81 of the Rules of Court.

JUDGMENT

STRASBOURG

29 September 2022

This judgment is final but it may be subject to editorial revision.

In the case of Anastasi and Others v. Malta,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Erik Wennerström , President,

Lorraine Schembri Orland ,

Ioannis Ktistakis , Judges, and Liv Tigerstedt, Deputy Section Registrar ,

Having regard to:

the applications against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table, (“the applicants”), on the various dates indicated therein;

the decision to give notice of the complaints concerning the period 2007 onwards, under Article 1 of Protocol No. 1 alone and in conjunction with Article 13 to the Maltese Government (“the Government”) represented by their Agent, Dr C. Soler, State Advocate, and Dr J. Vella, Advocate at the Office of the State Advocate, and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated in private on 6 September 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. The facts of this case are substantially the same as those described in Bartolo Parnis and Others v. Malta ((dec.), nos. 49378/18 and 3 others, 24 March 2020), in relation to the application of Act XVIII of 2007 introducing Article 12A into the Housing Ordinance (Chapter 158 of the Laws of Malta). The present applications concern other apartments owned individually by each of the applicant sisters, consequent to a deed of division of 7 October 2015.

2. By several appeal judgments of the Constitutional Court, the latter confirmed a violation of Article 1 of Protocol No. 1 to the Convention for the period 2007 onwards and awarded compensation, covering both pecuniary and non-pecuniary damage.

3. In particular, in respect of apartment 10B it awarded 5,000 euros (EUR), and in respect of apartments 45D and 28C it awarded EUR 20,000 for each apartment. In the case of apartment 10B an agreement was reached with the tenant in respect of future rent, in that of apartment 45D it was considered that the applicant had an ordinary remedy to pursue after the 2018 amendments and in the case of apartment 28C the property had been vacated [1] .

4. In respect of apartment 25C EUR 20,000 was awarded but the eviction order revoked, the Constitutional Court having considered that the applicant had an ordinary remedy to pursue under the 2018 amendments.

5. In respect of apartment 35C EUR 5,000 was awarded and EUR 20,000 in respect of apartment 31C. In the former case an agreement had been reached between the applicant and the tenant. In respect of apartment 31C it was considered that the applicant had an ordinary remedy to pursue under the 2018 amendments.

6. The applicants complain under Article 1 of Protocol No. 1 to the Convention and Article 13 of the Convention that the violation of their property rights upheld by the domestic courts was not brought to an end and that they were not adequately compensated, in view of the value of the properties.

THE COURT’S ASSESSMENT

7. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

8. The applicants complain that the violation of their property rights upheld by the domestic courts was not brought to an end and that they were not adequately compensated, in view of the value of the properties.

9 . The Court refers to its general principles concerning victim status and its established case ‑ law in cases similar to the present one (see, among many other authorities, Apap Bologna v. Malta , no. 46931/12, §§ 41, 43, 48 and 82, 30 August 2016). The Court notes that the Constitutional Court acknowledged the violation for the period 2007 onwards and awarded compensation covering pecuniary and non-pecuniary damage. However, bearing in mind the valuations submitted in respect of each apartment, the Court considers that the compensation awarded for the violation upheld by the domestic courts was not adequate. Those considerations suffice to find that the redress provided did not offer sufficient relief to the applicants, who thus retain victim status for the purposes of this complaint (see, mutatis mutandis , Portanier v. Malta , no. 55747/16, § 24, 27 August 2019). The Government’s objection to this effect is therefore dismissed.

10. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

11. The general principles concerning rent restrictions have been summarised in various judgments, such as, Amato Gauci v. Malta (no. 47045/06, §§ 52-59, 15 September 2009).

12. Having regard to the findings of the domestic court relating to Article 1 of Protocol No. 1, the Court considers that it is not necessary to re ‑ examine in detail the merits of the complaint. It finds that, as established by the domestic courts, the applicants were made to bear a disproportionate burden (see also Bartolo Parnis and Others v. Malta , nos. 49378/18 and 3 others, § 53, 7 October 2021). Moreover, as the Court has already found in the context of the objection on victim status (see paragraph 9 above), the redress provided by the domestic courts did not offer sufficient relief to the applicants.

13. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

14. The applicants also raised another complaint which is covered by the well ‑ established case-law of the Court. This complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. Accordingly, it must be declared admissible. Having examined all the material before it and noting that in the circumstances of the present case the applicants remained victims of the violation complained of (see paragraph 9 above) the Court concludes that it discloses a violation of Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1 in the light of its findings in, for example, Apap Bologna (cited above, §§ 89-91) and Portanier (cited above, §§ 55-56).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

15. The applicants claimed 247,478.40 euros (EUR) in respect of pecuniary damage, reflecting lost rent from 2007 until 2018, based on the estimates of the experts as calculated over sixteen years (sic.), and, according to the applicants, adjusted by the criteria set out in Cauchi v. Malta (no. 14013/19, 25 March 2021), and EUR 48,000 in non-pecuniary damage, as well as costs and expenses incurred before the domestic courts in line with the taxed bill of costs submitted at the time of lodging the application.

16. The Government challenged the applicants’ calculations in so far as they had been based on the highest available estimates, even for earlier years. Moreover, while the payments of the domestic court award had been deducted, the rents received had not. Furthermore, they considered that: (i) the values submitted by the expert were only estimates, and not amounts that the applicants would certainly have obtained; (ii) it could not be assumed that the apartments would have been rented out for the whole period if the tenants had not been protected by law ‑ particularly given the boom in property prices over recent years; (iii) the applicants would have had to maintain the apartments; (iv) the measure had been in the public interest and thus the market value was not called for. The Government also noted that the applicants became full owners of each property only in 2015 and thus each applicant owned 1/4 undivided share of the properties until then and they thus should be compensated accordingly. The Government also considered that the claim for non-pecuniary damage was excessive and that the one for costs was unquantified and thus should not be entertained.

17. In reply to the Government’s submissions, the Court notes that the Constitutional Court awarded compensation for the period post 2007 in respect of each apartment owned by each applicant respectively. Indeed, the Court also refers to Article 946 of the Maltese Civil Code which provides that after partition each co-heir is deemed to have succeeded alone and directly to all the property comprised in his/her share, and never to have had the ownership of the other hereditary property. The Court thus considers that the applicants are each due, respectively, compensation for the losses incurred in respect of each of their apartments as of the enactment of the law in 2007 until 2018. Having made all the considerations applicable in this type of cases, as set out in Cauchi (cited above, §§ 102-07) per apartment, including the deduction of rents received or still retrievable as well as the deduction of the domestic awards which appear to have been paid, the Court awards the applicant in each corresponding application the amounts indicated in the appended table in respect of pecuniary damage, and considers that the awards of the Constitutional Court already covered non-pecuniary damage, thus no further sum is due in that respect.

18. The Court notes that the applicants did not submit a quantified claim for costs and expenses when invited to do so. Their prior indications of desirable reparation in the application form cannot replace a properly articulated claim (see Nagmetov v. Russia [GC], no. 35589/08, §§ 59 and 75, 30 March 2017). In the absence of any exceptional circumstances the Court makes no award under this head (see Bartolo Parnis and Others , cited above, § 77).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay, within three months, in respect of pecuniary damage the following amounts:

(i) EUR 36,000 (thirty-six thousand euros), to Ms Anastasi (application no. 49102/19);

(ii) EUR 16,000 (sixteen thousand euros), to Ms Bartolo Parnis (application no. 49105/19);

(iii) EUR 16,000 (sixteen thousand euros), to Ms Azzopardi (application no. 49108/19);

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 29 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Erik Wennerström Deputy Registrar President

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Award

1.

49102/19

Anastasi v. Malta

16/09/2019

Patricia ANASTASI 1963 Swieqi Maltese

EUR 36,000

2.

49105/19

Bartolo Parnis v. Malta

16/09/2019

Greta BARTOLO PARNIS 1965 Pembroke Maltese

EUR 16,000

3.

49108/19

Azzopardi v. Malta

16/09/2019

Josephine AZZOPARDI 1958 St. Julian’s Maltese

EUR 16,000

[1] Rectified on 22 November 2022: the text was: “In particular, in respect of apartments 45D and 28C it awarded 20,000 (euros) EUR for each apartment, in the former case an agreement was reached with the tenant in respect of future rent, and in the latter the property had been vacated.”