Communicated on 10 January 2020

Published on 27 January 2020

THIRD SECTION

Application no. 14615/19 John MATTEI and others against Malta lodged on 13 March 2019

STATEMENT OF FACTS

A list of the applicants is set out in the appendix.

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

The applicants are owners of a property, No. 125 Lapsi Street, St. Julian ’ s, consisting of a corner house with a garden which was requisitioned in 1970, in line with the provisions of the Housing Act, Chapter 125 of the Laws of Malta, at a time when it was not in a good state. Following work to make it habitable, which was not carried out by the applicants but by the authority and eventually the tenants, on 7 July 1981 it was allocated to couple C. The applicants refused to recognise the tenants and never accepted rent from them.

On an unspecified date before 2015 Mr C. died and the property continued to be occupied by his wife and his son, who is dependent on the mother for medical reasons.

The rent due in 2015 was 185 euros (EUR) annually, in line with the adjustments provided by Act X of 2009. Prior to that, it was less.

In 2015 the applicants instituted constitutional redress proceedings requesting the court to find that the requisition order had breached their rights under Article 1 of Protocol No. 1 to the Convention. Consequently, they sought to annul the order and requested the court to make an award of compensation for the violation suffered including the rent for the occupation of the premises, as well as any other relevant redress.

By a judgment of 16 January 2018 the first-instance court found a violation of Article 1 of Protocol No. 1 and ordered the eviction of the tenants and the Housing Authority to find alternative accommodation for them. It also ordered the Housing Authority to pay EUR 800 monthly in rent to the applicants until the eviction took place.

In particular the court considered that a request for judicial review was not an appropriate remedy given that the requisition had been lawful, and the decision to requisition the property had not been ultra vires , nor had it been taken against any principle of natural justice. It further considered that the interference was lawful and pursued a legitimate aim, as it had not been shown that couple C. were not in need of the property. However, the applicable rent was EUR 185 annually for a property which was valued by a court-appointed expert at EUR 13,200 annually, that is, EUR 15.42 monthly instead of EUR 1,100 monthly (according to the court-appointed architect) or EUR 600-700 (according to the Government ’ s expert). The applicants were thus suffering a disproportionate burden.

It considered that compensation was due as of 30 April 1987 [date when Malta introduced the right of individual petition] until the date of judgment, and was to be calculated on the basis of the estimate of the court-appointed architect. According to the court-appointed architect the annual rental value in 1970 was EUR 600, in 1975 EUR 66 0, in 1980 EUR 765, in 1985 EUR 900, in 1990 EUR 1,200, in 1995 EUR 1,500, in 2000 EUR 3,150, in 2005 EUR 4,725, in 2010 EUR 8,000 and in 2015, EUR 12,500. It followed that from 1987 to 2018 the applicants had to receive EUR 124,475, however that amount had to be diminished in the light of the public interest at play. The court awarded EUR 100,000 in pecuniary damage reflecting loss of rent. It further awarded EUR 500, for every year, over the thirty year period in which they suffe red the violation, that is, EUR 15,000 in non-pecuniary damage. All the costs were to be paid by the defendants.

Having considered Mrs C. and her son as vulnerable individuals, the former being an elderly woman dependant on a widow ’ s pension and the latter having medical needs, it considered that they were still worthy of protection, and thus they were to be given alternative accommodation by the State within a year - time during which the authorities were to pay the applicants an adequate rent of EUR 800 monthly.

The Housing Authority appealed.

By a judgment of 5 October 2018 the Constitutional Court confirmed the first-instance judgment on the merits but varied the redress. It annulled the requisition and ordered that the tenants could no longer rely on the Housing Act to retain title to the property; it awarded EUR 40,000 in compensation, and revoked any other order given by the first-instance court.

In particular the Constitutional Court considered that given the legitimate aim behind the measure, as well as the fact that the property had been rendered habitable by the authorities and the tenants, the pecuniary damage awarded was excessive and that the court did not have the competence to fix a future rent which fell solely within the competence of the legislature. It revoked the order for eviction, considering that although the constitutional jurisdictions could give any appropriate remedy, including an order for eviction if necessary, it did not mean that rules concerning procedure and competence were to be ignored - a matter which could create uncertainty and arbitrariness. It was not for the courts of constitutional competence to decide on questions of title to property, their role being limited to deciding on possible breaches of human rights and awarding redress which would bring the violation to an end. It followed that an order to the tenants not to rely on the law providing for requisitions, which breached the applicants ’ rights was sufficient, and would allow the tenants the possibility of a fair hearing where they would be able to submit evidence concerning any other title they might have to retain the property. Similarly, it was not for the court to interfere with allocation of housing and order that alternative accommodation be found for the applicants.

In arriving at the award of compensation the Constitutional Court took account of following: the discrepancy in the rent payable vis-à-vis the rent on the open market; that the violation persisted since 1987; that the expert valuations were only indicative of losses; that the value of the property increased as a result of the rehabilitation undertaken by the authority; the legitimate aim at issue; the uncertainty faced by the applicants as to whether they would ever recover their property; the opportunity of the applicants to regain possession of their property now that an order was being made depriving the tenants of their title under the requisition order; the compensation given in similar cases; the expenses incurred by the applicants in pursuing these proceedings; and the fact that the award should cover both pecuniary and non-pecuniary damage.

The applicants were ordered to pay half the costs of the appeal proceedings.

On 13 August 2018 part of the roof of the property collapsed causing damage to the rest of the property as well as adjacent property. According to the applicants ’ architect the damage was due to a lack of maintenance over the years. In that light, the applicants filed a judicial letter against the tenants and the Housing Authority requesting the vacation of the property. At the date of the introduction of the application no response had been received and the tenants were still occupying the premises.

The relevant domestic law is set out in Apap Bologna v. Malta (no. 46931/12 , §§ 23-30, 30 August 2016).

COMPLAINTS

The applicants complain under Article 1 of Protocol No. 1 to the Convention alone and in conjunction with Article 13 that they are still victims of a violation of their property rights upheld by the domestic court given the low amount of compensation awarded, which was reduced by the order to pay costs, as well as the fact that there had been no order to evict the tenants. They thus considered that they had no effective remedy.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 1 of Protocol No. 1 to the Convention?

2. Did the applicants have at their disposal an effective domestic remedy for their 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 ) ?

APPENDIX

No.

Applicant ’ s Name

Birth date

Nationality

Place of residence

1John MATTEI

10/10/1939

Maltese

Attard

2Cecilia CAMILLERI

15/04/1944

Maltese

Swieqi

3Marion GATT

18/03/1936

Maltese

Sliema

4Patricia MERCIECA

11/11/1945

Maltese

Swieqi

5Blanche Mary REFALO

29/04/1942

Maltese

Sliema

6Diana TOLEDO

15/02/1945

Maltese

Dingli

7Astrid XUEREB

21/04/1938

Maltese

Sliema

8Alexandra ZARB MIZZI

08/06/1941

Maltese

Sliema