Communicated on 11 July 2019

THIRD SECTION

Application no. 40246/18 Anthony AQUILINA against Malta lodged on 21 August 2018

STATEMENT OF FACTS

The applicant, Mr Anthony Aquilina , is a Maltese national, who was born in 1932 and lives in Rabat. He is rep resented 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 property No. 155, Republic Street, Valletta (“the property”) measuring approximately 100 sq.m .

On 11 March 1985, the applicant rented (under title of temporary emphyteusis ) the property to a third party, for twenty ‑ one years, at 200 Maltese liras (MTL) (approximately 466 euros (EUR)) per year.

In March 2006, on the expiry of the contract of temporary emphyteusis , the third party (and his wife) 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 the rent applicable according to law. Thus, the applicant was forced to recognise the tenant and the lease at the rent stipulated by law, in his case EUR 375 every six months (EUR 750 per year).

The applicant instituted constitutional redress proceedings claiming that the Article 12 of the Ordinance as amended by Act XXIII of 1979 ‑ which granted tenants the right to retain possession of the premises under a lease ‑ imposed on the owners a unilateral lease relationship for an indeterminate time without reflecting a fair and adequate rent, in breach of Article 1 of Protocol No. 1 to the Convention. He requested the court to award compensation for the damage suffered. The applicant argued that while it was true that at the time when the property was rented out in 1985, the law was already in force, the inflation in the property market in the following decades could not have been foreseen. Moreover, there had been 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. He asked the court to award compensation and evict the tenant.

According to a court-appointed expert the sal e value of the property was EUR 224,000 in 2016 and its annual rental value in 2006 was EUR 7,213, in 2011 it was EUR 7,605 and in 2016, EUR 7,840.

By a judgment of 9 October 2017 the Civil Court (First Hall) in its constitutional competence found a violation of the applicant ’ s property rights and awarded EUR 15,000 in pecuniary and non-pecuniary damage combined and ordered that the tenant would no longer be able to benefit from the amended law .

It accepted that the applicant ’ s property could have been at risk of being requisitioned, which explained the choice to rent out the property under title of temporary emphyteusis . It considered that the regime under which the applicant had rented the property could not be considered proportionate as, in the light of the court-appointed expert ’ s valuations, the applicant was receiving only 10% of the property ’ s potential value. In awarding damage it also took account of the fact that it was ordering that the tenant would no longer be able to benefit from the amended law as well as the fact that it was not its role to awarded civil damages. It further considered that the applicant had freely set the original rental value, and that the property could not fetch the rent suggested by the court-appointed expert without it undergoing extensive reparations and related expenses – noting however that any improvements made by the tenants were to remain.

On appeal, by a judgment of 13 April 2018 the Constitutional Court revoked the first ‑ instance judgment and rejected the applicant ’ s claim. The court considered that the applicant had not proved that there had been no other choice but to rent the property – while it was true that there was a possibility, from the evidence it appeared likely that he chose that option as he had not managed to sell the property. The Constitutional Court noted that the applicant, who was aware of the law at the time when he decided to rent the property, had demanded a higher rent together with other conditions, namely the payment of approximately EUR 6,988 and that the tenants were to refurbish the property which had not been in a good state. All costs of both instances were to be paid by the applicant.

The relevant domestic law in relation to the present case is set out in Amato Gauci v. Malta (no. 47045/06, §§ 19-25, 15 September 2009) and Anthony Aquilina v. Malta ( no. 3851/12 , §§ 28-29, 11 December 2014 ).

COMPLAINT

The applicant complains of a violation of Article 1 of Protocol No. 1.

QUESTION TO THE PARTIES

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)?