Communicated on 24 April 2019

THIRD SECTION

Application no. 19600/18 Catherine CAUCHI and others against Malta lodged on 20 April 2018

STATEMENT OF FACTS

A list of the applicants is set out in the appendix. They were represented before the Court by Dr M. Camilleri and Dr E. Debono , lawyers practising in Valletta.

A. The circumstances of the case

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

1. Background to the case

The applicants own property No. 31 and 32, Å» ejtun Street, Marsaxlokk, which the first applicant originally inherited from her deceased father.

On 8 June 1973, the applicant and her mother had rented (under title of temporary emphyteusis ) the property No. 31 to a third party, for seventeen years, at 25 Maltese liras (MTL) (approximately 58 euros (EUR)) per year.

On 1 February 1983, the applicant rented (under title of temporary emphyteusis ) both No. 31 and 32, Å»ejtun Street, Marsaxlokk for a period of twenty ‑ one years at the same above ‑ mentioned price per house. It was stipulated that in 1988 the ground rent would raise to MTL 70 per house (approximately EUR 164) per year. This contract replaced the earlier contract of 1973.

In January 2004, on the expiry of the contract of temporary emphyteusis , the third party 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 owners were forced to recognise the lease at the rent stipulated by law, i.e. EUR 245 per year.

2. Constitutional redress proceedings

The first applicant, and her husband, eventually superseded by his children (the remaining applicants), instituted constitutional redress proceedings claiming that the provisions of the Ordinance as amended by Act XXIII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 them as owners 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. They requested the court to award compensation for the damage suffered.

By a judgment of 2 May 2017 the Civil Court (First Hall) in its constitutional competence upheld the above-mentioned claim. The court noted that according to the court ‑ appointed expert, the rental value of the property on the expiration of the lease, in 2004, was EUR 2,750 annually while the applicants were receiving EUR 245 annually. Therefore between 2004 and 2016 the applicants had suffered losses of around EUR 40,000. Thus, the applicants were suffering a disproportionate burden.

Bearing in mind that the above ‑ calculated losses were only indicative and did not reflect real losses, the court awarded the applicants EUR 30,000 in non ‑ pecuniary damage. The court ordered that the tenants could not rely on Section 12 (2) (b) ( i ) of the Ordinance as amended to claim title to the property. No costs were imposed on the applicants .

On appeal by the Attorney General, by a judgment of 26 January 2018 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 awarded the applicants EUR 10,000 covering both pecuniary and non ‑ pecuniary damage, noting that the first court had not taken account of the public interest at issue and emphasizing that the tenant will no longer be able to benefit from the amended law. One half 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).

COMPLAINT

The applicants complained that they were still victi ms of the violation of Article 1 of Protocol No. 1 upheld by the Constitutional Court given the low amount of compensation awarded.

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)?

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