FIRST SECTION

DECISION

Application no. 26917/21 Mario SPITERI MAEMPEL and Others against Malta

The European Court of Human Rights (First Section), sitting on 6 September 2022 as a Committee composed of:

Erik Wennerström , President,

Lorraine Schembri Orland ,

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

Having regard to:

the application (no. 26917/21) 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”) on 14 May 2021 by the applicants listed in the appended table (“the applicants”) who were represented by Dr K. Micallef , a lawyer practising in Valletta;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns a unilaterally imposed lease under Act XXIII of 1979 amending Chapter 158 of the Laws of Malta (“the Ordinance”) affecting the applicants’ property at 276 Bwieraq Street, Birkirkara, as of January 2003.

2. The application form contains various factual contradictions, but from the domestic judgment it appears that, in 2003, the annual rent payable was approximately 128 euros (EUR). It was later doubled to EUR 256, and in 2013 it increased to EUR 325 annually, which would increase every three years thereafter according to the cost-of-living index. In 2016 it was EUR 332 annually and in 2018 it was approximately EUR 343.

3. The applicants lodged constitutional redress proceeding complaining that the application of Article 12 of the Ordinance was in breach of their property rights. They limited their claims to December 2018, without prejudice to any further proceedings which could be brought in relation to the 2018 amendments.

4 . According to the court-appointed architect report, the property, an old house, was in a very bad state – while there was electricity, there was no kitchen nor bathroom, and certain features appeared to be contrary to sanitary laws, moreover the walls and floor tiling were also in a bad state. It was dirty and various rooms were used to keep poultry. However, when estimating the value of the property the court-appointed expert valued the property on the assumption that it was in a good habitable state. The expert moreover took into account its development potential given its location, and that various alterations/improvements could be made, and extensions requested to cover a footprint of 200 sq.m. On the basis of those considerations, the sale value in 2018 was estimated as being EUR 350,000 and the consequent annual market rental value in the previous years as being, in 2003 EUR 3,600, in 2008 EUR 5,250, in 2013 EUR 9,625 and in 2018 EUR 18,000. On the basis of this expert report, the plaintiffs estimated that their loss of income over the entire period was around EUR 182,000.

5. By a judgment of 15 December 2020 the Civil Court (First Hall) in its constitutional competence found a violation of Article 1 of Protocol No. 1 and awarded EUR 26,000 in pecuniary damage and EUR 2,000 in non ‑ pecuniary damage. None of the parties appealed.

THE COURT’S ASSESSMENT

6. The applicants complained under Article 1 of Protocol No. 1 alone and in conjunction with Article 13 that they were still victims of the violation found by the domestic court, in so far as the tenant had not been evicted nor an appropriate award of compensation awarded.

7. The Court finds it opportune to note that it has previously held that an appeal to the Constitutional Court could not be considered an effective remedy – in various cases concerning inter alia , complaints under Article 1 of Protocol No. 1 in relation to the application of Act XXIII of 1979 amending the Ordinance – in particular until the end of 2018 (see, for example, Cauchi v. Malta , no. 14013/19, §§ 76-77, 25 March 2021). In that case it considered that the situation might be different in 2021 had the state of domestic practice evolved accordingly and noted that the matter will remain under the Court’s supervision (ibid.). The Court does not consider it necessary to decide, in the present case, whether in 2021 the Constitutional Court can be considered as an effective remedy which the applicants had to exhaust. This is so given that, even assuming that this complaint is not inadmissible for non-exhaustion of domestic remedies – the applicants having failed to appeal – it is in any event inadmissible for the following reasons.

8. The Court reiterates its general principles concerning victim status as set out in Apap Bologna v. Malta (no. 46931/12, §§ 41 and 43, 30 August 2016).

9. In the present case, the Court notes that there has been an acknowledgment of a violation by the domestic court.

10. As to whether appropriate and sufficient redress was granted, the Court observes that, although prepared by a court-appointed expert and unrebutted by the State Attorney during the domestic proceedings, the valuation relied on by the applicants and submitted to this Court did not take account of the factual reality of the property at issue in the present case such as its actual size and the state it was in during the imposed lease (see paragraph 4 above). In consequence it cannot reasonably be considered to reflect an acceptable valuation of the rental value on the market of the property at issue over the relevant period during which it was rented (compare, Grech and Others v. Malta , no. 69287/14, § 76, 15 January 2019, and contrast, Fleri Soler and Camilleri v. Malta (just satisfaction), no. 35349/05, § 17, 17 July 2008). In such circumstances the Court considers that the applicants have not shown that the award made by the domestic court did not constitute adequate compensation for the violation suffered.

11. The Court further notes that the domestic court had not ordered the eviction of the tenants or alternatively put in place a higher future rent (see Cauchi , cited above, § 30, and Marshall and Others v. Malta , no. 79177/16, §§ 71-72, 11 February 2020). However, it is of relevance that the applicants opted to limit their claims to 2018 (see Zammit and Busuttil v. Malta [Committee] (dec.), nos. 3746421 and 43204/21, 19 October 2012, and contrast, Cauchi , cited above, § 10) and that a new potentially effective procedure capable of evicting the tenant or putting in place a higher future rent was open to them thereafter (see, by implication, Said v. Malta [Committee] (dec.), no. 34562/20, §§ 10-11, 22 March 2022). The applicants have not informed the Court that they undertook that procedure and were unsatisfied with its outcome, and in the latter case that they instituted constitutional redress proceedings complaining about the matter. In such circumstances the Court considers that the applicants have lost their victim status in respect of their complaint brought before the domestic court and subsequently before this Court.

12. The complaint is therefore incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be declared inadmissible in accordance with Article 35 § 4 of the Convention.

13. The Court reiterates that Article 13 does not apply in the absence of an arguable claim (see Maurice v. France [GC], no. 11810/03, § 106, ECHR 2005 ‑ IX). Bearing in mind the considerations made above in relation to the applicants’ victim status, it considers that in the specific circumstances of this case, the complaint under Article 13 is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

14. The applicants also raised other complaints under various Convention provisions.

15. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

16. It follows that these complaints must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 29 September 2022.

Liv Tigerstedt Erik Wennerström Deputy Registrar President

APPENDIX

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

1.Mario SPITERI MAEMPEL

1951Maltese

Balzan

2.Marie-Therese DE MARCO

1956Maltese

Balzan

3.Maria-Victoria FARRUGIA

1962Maltese

Balzan

4.Nicola PACE

1956Maltese

Sliema

5.Gerard Jude SPITERI MAEMPEL

1951Maltese

Lija

6.Johanna SPITERI MAEMPEL

1953Maltese

Lija