Communicated on 20 March 2020 Published on 18 May 2020

THIRD SECTION

Application no. 28711/19 Alessandra RADMILLI against Malta lodged on 17 May 2019

STATEMENT OF FACTS

The applicant, Ms Alessandra Radmilli , is a Maltese national, who was born in 1948 and lives in Sliema . She is represented before the Court by Dr M. Camilleri and Dr E. Debono , lawyers practising in Valletta.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant owns a property, Orchid, Wil ġ a Street, Paceville , St. Julian ’ s which she acquired (partly by inheritance and partly by contract of division and donation) in 1989 and 1997 respectively.

On 20 April 1963, the applicant ’ s father rented (under title of temporary emphyteusis) the property to a third party, for seventeen years, at 96 Maltese liras (MTL) (approximately 233 euros (EUR)) per year.

The contract expired on 19 April 1980 ho wever, the tenant relied on Act XXIII of 1979 amending Chapter 158 of the Laws of Malta, the Housing (Decontrol) Ordinance, (hereinafter “the Ordinance”) to retain the property under title of lease, at a rent of MTL 180.50 (approxim ately EUR 420) per year until April 1995. Thereafter the rent payable per year according to law was MTL 313.35 (approximately EUR 730) until April 2010 when the rent payable became (roun ded up to the closest euro) EUR 1,073. With the introduction of Act X of 2009 the rent payable as of January 2013 became EUR 1,142 per year and later, as of 2016, EUR 1,190 per year.

The tenant died on 10 January 2017 and his successor continued to reside in the property on the basis of the same law.

In 2017 the applicant instituted constitutional redress proceedings claiming that the provisions of the Ordin ance as amended by Act XXIII of 1979 ‑ which granted tenants the right to retain possession of the premises under a lease ‑ imposed on her as owner a unilateral lease relationship for an indeterminate time without reflecting a fair and adequate rent, in breach of, inter alia , Article 1 of Protocol No. 1 to the Convention. She requested the court to award compensation for the damage suffered. The applicant argued that prior to 1979 the owners had had no other option than to rent the property under title of temporary emphyteusis, in order to avoid it being requisitioned as was common at the time.

According to the court-appointed expert the sale value in 2017 was EUR 365,000 and the annual rental value was estimated as being in 1980 EUR 1,045, in 1985 EUR 1,466, in 1990 EUR 2,056, in 1995 EUR 2,883, in 2000 EUR 4,044, in 2005 EUR 5,672, in 2010 EUR 7,956, in 2015 EUR 11.158 and in 2017 EUR 12,775.

By a judgment of 15 February 2018 the Civil Court (First Hall) in its constitutional competence found a violation of the applicant ’ s property rights, awarded EUR 31,000 in compensation (EUR 30,000 in pecuniary damage and EUR 1,000 in non-pecuniary damage) and declared that the tenant could no longer rely on the impugned law to maintain title to the property. No costs were to be paid by the applicant.

For the purposes of compensation, the court considered: that this was the direct result of the law; that the State had persistently failed to remedy this imbalance arising from a structural issue resulting from laws which were in breach of human rights and yet remained in place; the discrepancy in the rent received and the market value, as of 1995 but particularly as of 2008; the uncertainty as to when the applicant would recover her property and the lack of any procedural safeguards.

By a judgment of 14 December 2018 the Constitutional Court rejected the appeals lodged by both parties. It confirmed the first-instance judgment but reduced the non-pecuniary award to EUR 25,000, having considered that it should not depart from the limits of compensation usually awarded in similar cases. The applicant was ordered to pay ¼ of the costs of the appeal proceedings.

Despite the order of the constitutional jurisdictions to the effect that the tenant could no longer rely on the relevant law, the applicant was unable to institute eviction proceedings due to the i ntroduction of Act No. XXVII of 2018 which provided that despite a judgment in his favour, it shall not be lawful for the owner to proceed to request the eviction of the occupier without first availing himself of the new procedure provided by that law.

The relevant domestic law is set out in Amato Gauci v. Malta (no. 47045/06, § 19-22, 15 September 2009).

Section 12B of the Ordinance introduced by Act No. XXVII of 2018 published on 10 July 2018 and which entered into force on 1 August 2018 reads as follows:

“ (1) Where a person is in occupation of a dwelling house under title of lease created by virtue of a previous title of emphyteusis or sub-emphyteusis which commenced before the 1st June 1995 through the application of article 5, 12, or 12A the following conditions shall, insofar as they are inconsistent with the provisions of the said articles of this Ordinance apply in respect of such lease as from, the 10th April 2018 notwithstanding the provisions of the said articles of the Ordinance or of any other law.

(2) The owner shall be entitled to file an application before the Rent Regulation Board demanding that the rent be revised to an amount not exceeding two percent per annum of the open market freehold value of the dwelling house on the 1st January of the year during which the application is filed and that new conditions be established in respect of the lease.

(3) The procedure applicable to the hearing of applications before the Rent Regulation Board shall apply to the hearing of an application made under sub ‑ article (1):

Provided that:

(i) the Housing Authority shall be notified with the application and shall have a right to fully participate as amicus curiae in the proceedings; and

(ii) the tenant and the landlord shall always be entitled to the benefit of legal aid in proceedings filed in terms of this article if they are not in full-time gainful employment; and

(iii) at the initial stage of the proceedings the Board shall conduct a means test of the tenant which shall be based on the means test provided for in the Continuation of Tenancies (Means Testing Criteria) Regulations issued under articles 1531F and 1622A of the Civil Code or any regulations from time to time replacing them.

The means test shall be based on the income of the tenant between the 1st January and the 31st December of the year preceding the year when the proceedings are commenced and the capital of the tenant on the 31st December of the said year.

The means test shall be conducted with particular reference , inter alia , to regulations 4 to 8 of the said regulations which shall apply mutatis mutandis.

(4) Where the tenant does not meet the income and capital criteria of the means test the Board shall, after hearing any evidence and submissions produced by the parties, give judgement allowing the tenant a period of five years to vacate the premises. The compensation for occupation of the premises payable to the owner during the said period shall amount to double the rent which would have been payable in terms of articles 5, 12 or 12A.

(5) Where the tenant meets the income and capital criteria of the means test the Board shall proceed according to the following subarticles .

(6) In establishing the amount of rent payable in accordance with sub-article (1) the Board shall give due account to the means and age of the tenant and to any disproportionate burden particular to the landlord and it may determine that any increase in rent shall be gradual. The Board, after briefly hearing the parties and examining any evidence which it considers relevant, may also order that an increased amount of rent be paid whilst the hearing of an application filed in terms of sub ‑ article (1) is pending.

(7) Where an amount of rent is established in terms of sub article (1) that rent shall apply in respect of the lease of the dwelling house, unless the lease is previously terminated, for a period of six years, after which it shall be subject to being revised in accordance with sub-article (1) unless an agreement is reached between the parties.

(8) (a) Upon the happening of a material change in circumstances during the continuance of a lease established in accordance with article 5, 12 or 12A the owner shall be entitled to file an application before the Board demanding that the conditions of the lease be revised on account of their causing a disproportionate burden upon him.

(b) The owner may also demand the dissolution of the lease if he can prove through unequivocal evidence that the tenant is not a person in need of the social protection provided by articles 5, 12 or 12A and by this article:

Provided that:

(i) the provisions of paragraph (a) of this sub-article shall not apply where the hearing of an application under subarticle (1) is pending or has been determined for less than three years;

(ii) the tenant shall always be deemed to be a person not in need of the social protection provided by articles 5, 12, 12A and by this article if the Housing Authority or the landlord offer alternative accommodation suitable to the tenant and guarantees the availability of such accommodation to the tenant for at least ten years for a rent which is not in excess of that which would have been payable by the tenant had the tenant continued the lease under articles 5, 12 or 12A.

(9) (a) Any person who has a right to be recognised as a tenant in terms of the proviso to the definition "tenant" in article 2 shall, unless the said is a person referred to in paragraph (a) of the said definition, only acquire a right to occupy the dwelling house for a period of five years upon the expiration of which he shall vacate the said dwelling house. The compensation for occupation of the dwelling house payable to the owner during the said period shall, unless the occupier meets the income and capital criteria of the means test referred to in paragraph (iii) of sub-article (3), amount to double the rent which would have been payabl e in terms of articles 5, 12 or 12A.

(b) Any dispute as to whether the occupier meets the criteria of the means test may be referred by either party to the Board by application and the provisions of sub ‑ article (3) shall apply.

(10) The provisions of article 1555A of the Civil Code shall apply in respect of any lease which came into effect by virtue of articles 5, 12, 12A or this article.

(11) The provisions of this article shall also apply in all cases where any emphyteusis, sub-emphyteusis or tenancy in respect of a dwelling house regulated under articles 5, 12, or 12A has lapsed due to a court judgment based on the lack of proportionality between the value of the property and the amount receivable by the landlord and the person who was the emphyteuta or the sub- emphyteuta or the tenant still occupies the house as his ordinary residence on the 10th April 2018. In such cases it shall not be lawful for the owner to proceed to request the eviction of the occupier without first availing himself of the provisions of this article.”

COMPLAINTS

The applicant complains under Article 1 of Protocol No. 1 alone and in conjunction with Article 13 of the Convention that she is still a victim of the violation of Article 1 of Protocol No. 1 upheld by the domestic court given the low amount of compensation awarded as well as the fact that there had been no order to evict the tenants. She also considers that constitutional redress proceedings were not an effective remedy for the purposes of Article 13. This was even more so given the introduction of Act No. XXVII of 2018 which impeded the execution of the judgment in her favour, as a result of which the applicant considers that she has been suffering a breach of Article 6 § 1 of the Convention.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 1 of Protocol No. 1 to the Convention (see Amato Gauci v. Malta , no. 47045/06, 15 September 2009)?

2. Did the action of the national authorities, namely the introduction of Act No. XXVII of 2018, and in particular its Section 12B (11), interfere with the enforcement of the judicial decision in favour of the applicant, unduly delaying and possibly preventing its execution, in breach of Article 6 § 1 of the Convention (see Immobiliare Saffi v. Italy [GC], no. 22774/93, ECHR 1999 ‑ V)?

3. Did the applicant have at her disposal an effective domestic remedy for her complaints under Article 1 of Protocol No. 1, as required by Article 13 of the Convention (see Apap Bologna v. Malta , no. 46931/12 , 30 August 2016 ) ?