Lexploria

FIRST SECTION

DECISION

Application no. 34562/20 Matthew SAID and Iana SAID against Malta

The European Court of Human Rights (First Section), sitting on 22 March 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. 34562/20) against Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 August 2020 by two Maltese nationals, Mr Matthew Said and Ms Iana Said, who were born in 1990 and 1993 respectively and live in St Paul’s Bay, Malta (“the applicants”), and who were represented by Dr M. Camilleri and Dr E. Debono, lawyers practising in Valletta;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the application of Act XIII of 1979 that amended Article 12 of the Housing Decontrol Ordinance, Chapter 158 of the Laws of Malta (“the Ordinance”), which imposed a unilateral lease on the applicants’ property, in Balzan, as of 1 January 2015, at a low amount of rent, namely 280 euro (EUR) annually to be increased every three years in terms of law (Act XI 2009). According to the court-appointed expert the market rental value was EUR 2,400 annually in 2015 and EUR 3,600 in 2018, i.e. around EUR 9,000 between 2015-2018.

2. In 2019 the applicants instituted constitutional redress proceedings complaining that the application of Act XIII of 1979, in particular Article 12 of the Ordinance, breached their property rights. They asked the court to give a remedy it deemed adequate.

3. By a judgment of 30 October 2019 the Civil Court (First Hall) in its constitutional competence found a violation of Article 1 of Protocol No. 1 to the Convention as a result of the application of the impugned law. It awarded the applicants EUR 6,000 in compensation. No costs were to be paid by the applicants.

4. On appeal by the tenants, on 27 March 2020 the Constitutional Court confirmed the merits and the award of compensation but specified that the findings of the first-instance court referred solely to Article 12 (2) and its application until 2018, as the applicants’ complaint had been limited to that. Thus, the 2018 amendments fell outside of the scope of these proceedings. For any subsequent period, the applicants could institute proceedings under the newly enacted Article 12B which might improve their situation and remedy any future violation. It ordered that one sixth of the expenses of the appeal be paid by the applicants.

5 . Indeed, in the meantime, in 2019, the applicants had instituted proceedings before the Rent Regulation Board (RRB) under the new Article 12B of the Ordinance. They asked the RRB to i) subject the tenants to a means test; ii) to increase the rent in line with the 2018 amendments, namely to a maximum of 2 % of the market value, and impose the relevant conditions; and iii) to order the eviction of the tenants within five years should they not fulfil the means test. By a judgment of 16 September 2020, the tenants being worthy of protection, the rent was increased. On appeal by the applicants, by a Court of Appeal judgment of 23 April 2021, the annual rent was increased to EUR 1,800 as of 1 January 2019 for two years, to EUR 2,160 for the subsequent two years and to EUR 2,600 (the maximum allowed by law) thereafter.

THE COURT’S ASSESSMENT

6. The applicants complained under Article 1 of Protocol No. 1 to the Convention alone and in conjunction with Article 13 that they remained victims of the violation upheld by the courts of constitutional competence, given the low amount of compensation awarded and the failure to evict the tenants.

7. The Court reiterates that the adoption of a measure favourable to the applicant by the domestic authorities will deprive the applicant of victim status only if the violation is acknowledged expressly, or at least in substance, and is subsequently redressed (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178 et seq. and § 193, ECHR 2006 ‑ V, and Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999 ‑ VII). Whether the redress given is effective will depend, among other things, on the nature of the right alleged to have been breached, the reasons given for the decision and the persistence of the unfavourable consequences for the person concerned after that decision (see Oliari and Others v. Italy , nos. 18766/11 and 36030/11, § 78, 21 July 2015). The redress afforded must be appropriate and sufficient. Whether an individual has victim status may also depend on the amount of compensation awarded by the domestic courts and the effectiveness (including the promptness) of the remedy affording the award (see PaplauskienÄ— v. Lithuania , no. 31102/06, § 51, 14 October 2014).

8. In the present case the first criterion has been met as the courts of constitutional competence found a violation of the applicants’ property rights.

9. As to the second criterion, bearing in mind the Court’s practice in awarding compensation (see Cauchi v. Malta , no. 14013/19, §§ 102 ‑ 07, 25 March 2021), and the limited period concerned by the violation, the Court considers that the domestic award is sufficiently similar to what the Court would have awarded in pecuniary and non ‑ pecuniary damage and thus that an adequate amount of compensation was awarded to the applicants (compare Bartolo Parnis and Others v. Malta (dec.), nos. 49378/18 and 3 others, § 48, 24 March 2020) for the violation until 2018, despite an order to pay a small part of costs at the appeal stage (see, a contrario , Zammit and Vassallo v. Malta , no. 43675/16, § 42, 28 May 2019, and Portanier v. Malta , no. 55747/16, § 24, 27 August 2019).

10. The Court, however, notes that the courts of constitutional competence 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) bearing in mind the remedy available via the 2018 amendments.

11. Indeed, the Court notes that shortly after the introduction of the 2018 amendments, while the constitutional redress proceedings were still pending, the applicants had already instituted proceedings before the RRB requesting the rent to be increased should the tenants be worthy of protection. By means of an appeal judgment in April 2021, around a year after the judgment of the Constitutional Court, the Court of Appeal (and previously the RRB) acceded to the applicants’ request to increase the rent and, having found the tenants worthy of protection, it increased the rent retroactively as of January 2019 (see paragraph 5 above). In this connection the Court reiterates that in the event that a higher future rent is put in place eviction would not always be necessary. Indeed, when the measure did pursue a legitimate aim (such as the social protection of needy tenants), the adaptation of the future rent to present circumstances might be sufficient to repair the existing disproportionality and thus bring the violation to an end (see Portanier , cited above, § 48). The Court notes that in their application to the Court, prior to the Court of Appeal’s decision in their case, the applicants complained about the framework put in place via the 2018 amendments. However, when updating the Court about the outcome of those proceedings they did not submit that they were dissatisfied with the amount of rent put in place. Furthermore, following the Court of Appeal’s decision in their case, augmenting the rent progressively as of 2019, the applicants have not undertaken constitutional redress proceedings complaining about the outcome of the ordinary proceedings – an avenue they would have had to undertake had they been dissatisfied with the amount of rent put in place progressively in respect of their property. Accordingly, the Court will not make any general considerations on the rent put in place, or that fact it was only progressive – although it maintains its reservations in respect of the latter consideration (see Cauchi , cited above, § 83). For the purposes of the present case, it suffices to note that a future rent was put in place in a timely manner, and was retroactive thus covering the period following the Constitutional Court judgment (see, a contrario , Cauchi , cited above, § 83). Therefore, a priori , it must be considered that the violation complained of does not persist (compare Testa v. Malta (dec.), no. 58910/19, § 42, 7 September 2021).

12. It follows that in the circumstances of the present case the applicants have lost their victim status for the purposes of Article 1 of Protocol No. 1. 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 is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

14. The applicants also complained of a violation of Article 13 in conjunction with Article 6 due to the multiple actions required to regain possession of the property.

15. The Court notes firstly that the role of Article 6 § 1 in relation to Article 13 is that of a lex specialis , the requirements of Article 13 being subsumed by the more stringent requirements of Article 6 § 1 (see, for example, Curmi v. Malta , no. 2243/10, § 58, 22 November 2011, and Cane` and Others v. Malta (dec.), no. 24788/17, 13 April 2021). As to Article 6 the applicants’ complaint appears to be misconceived. Indeed, the Convention case-law precisely states that, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see Kud Å‚a v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI, and AliÅ¡ić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 131, ECHR 2014). In consequence this cannot of itself raise an issue under Article 6. Furthermore, the Court reiterates that in the event that a higher future rent is put in place, as happened in the present case, eviction would not always be necessary (see Portanier , cited above, § 48). Thus, even assuming that this complaint is not inadmissible for non-exhaustion of domestic remedies, it is in any event manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

16. Relying on Article 1 of Protocol No. 1 to the Convention and Article 6 alone and in conjunction with Article 13, the applicants further complained that the new Article 12B introduced via the 2018 amendments, was in breach of their property rights and not an effective remedy. They noted that its introduction interfered with their legitimate expectation to evict the tenant and to access to court.

17. The Court notes that the implications of Article 12B for the purposes of Article 1 of Protocol No. 1 have not been examined by the constitutional jurisdictions – at this stage nothing indicates that they would not have been an effective remedy in that regard (see, mutatis mutandis , Cauchi , cited above, § 96, and recently Darmanin v. Malta [Committee] (dec.) no. 56311/19, § 24, 19 October 2021). Similarly, in so far as the applicants complained that the introduction of Act XXVII of 2018 impeded the execution of the judgment in their favour in so far as they could not institute eviction proceedings as a result of Article 12B (11) of the Ordinance, the Court has already found that there was no suggestion that the constitutional jurisdictions would not be an effective remedy for the purposes of this type of complaint, and that there were no special circumstances absolving the applicant in that case from the requirement to exhaust domestic remedies in that regard (see Cauchi , cited above, § 96). In the present case, nothing has been brought to the Court’s attention capable of altering that finding. It follows that the complaints under Article 1 of Protocol No. 1 to the Convention and Article 6 of the Convention are inadmissible for non ‑ exhaustion of domestic remedies, and any possible complaint under Article 13 is currently premature. The complaints must thus be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 28 April 2022.

Liv Tigerstedt Erik Wennerström Deputy Registrar President

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SAID v. MALTA

SAID v. MALTA