Communicated on 27 May 2019

THIRD SECTION

Application no. 48382/17 Ian Peter ELLIS and E lizabeth SCILIO against Malta lodged on 21 June 2017

STATEMENT OF FACTS

The applicants, Mr Ian Peter Ellis and Ms Elizabeth Scilio , are Maltese nationals, who were born in 1950 and 1947 and live in Sliema , Malta, and Catania, Italy, respectively. They are represented before the Court by Dr J. Grech , a lawyer practising in Birkirkara.

A. The circumstances of the case

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

1. Background to the case

The applicants own property No. 41, Sir Ugo Mifsud Bonniċi Street , Lija (“the property”).

On 19 June 1973, the applicants ’ predecessors in title rented (under title of temporary emphyteusis ) the property to a third party, for seventeen years, at 240 Maltese liras (MTL) (approximately 560 euros (EUR)) per year.

In 1990, on the expiry of the contract of temporary emphyteusis , the third party relied on Article 12 (2) of Chapter 158 of the Laws of Malta, the Housing (Decontrol) Ordinance (hereinafter “the Ordinance”), as amended by Act XXIII of 1979, to retain the property under title of lease at the rent applicable according to law, which at the time and until 2006 was equivalent to EUR 1,118 per year. From January 2006 onwards the rent payable was EUR 2,236 per year.

2. Constitutional redress proceedings

The applicants instituted constitutional redress proceedings claiming that the provisions of the Ordinance ‑ which granted tenants the right to retain possession of the premises under a lease ‑ imposed on them as owners a unilateral lease relationship for an indeterminate time without reflecting a fair and adequate rent, nor an effective remedy or relevant procedural safeguards in breach of Article 1 of Protocol No. 1 to the Convention. They requested the court to award compensation for the damage suffered. They noted that their ex parte architect calculated the rental value of the property from 1990 ‑ 2009 as being EUR 213,600, and that from 1990 ‑ 2012 the market rental value amounted to EUR 253,200 while they had only received EUR 32,984.

By a judgment of 4 October 2016 the Civil Court (First Hall) in its constitutional competence upheld the above ‑ mentioned claim on the basis of the relevant ECtHR case ‑ law.

The court took note of the court-appointed expert ’ s valuations (excluding the improvements done by the tenants) and the fact that in 1992 the applicants only owned a quarter of the property, in 1993 a half and in 1997 three quarters, only to become full owners in 2009 and considered that the applicants ’ loses would have amounted to around EUR 130,000. Bearing in mind that the above ‑ calculated losses were only indicative and did not reflect real losses the court awarded the applicants EUR 50,000 in non ‑ pecuniary damage and ordered that the tenants could not rely on Section 12 (2) of the Ordinance as amended to claim title to the property. No costs were imposed on the applicants.

On appeal by both parties concerning the compensation awarded, by a judgment of 27 January 2017 the Constitutional Court upheld the finding of a violation of Article 1 of Protocol No. 1 to the Convention as well as the order that the tenants could no longer rely on the relevant law to retain the property. It however reformed the amount of compensation and bearing in mind the improvements made by the tenants prior to 1990 but not after it considered that the potential losses of the applicants from 1990 (date from when the calculation had to be made given that the applicants could claim damage in respect of the period during which their predecessors ’ patrimony had been affected) to 2014 amounted to EUR 156,509 (reflecting a total potential of EUR 194,064 from which had to be deducted the sum of EUR 37,455 which the applicants received in rent until 2014). However, since those were not real losses and given the social aim behind the measure as well as the remedy given to the applicants who could thereafter obtain possession of the premises, it awarded the applicants EUR 15,000 covering both pecuniary and non-pecuniary damage. The entirety of the costs of the appeal proceedings were to be paid by the applicants.

B. Relevant domestic law

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).

COMPLAINTS

The applicants complain that they were still victims of the violation of Article 1 of Protocol No. 1 upheld by the Constitutional Court given the low amount of compensation awarded. They further consider that constitutional redress proceedings were not an effective remedy as required by Article 13 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 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 ) ?