Communicated on 6 September 2018

THIRD SECTION

Application no. 79177/16 MARY MARSHALL and others against Malta lodged on 16 December 2016

STATEMENT OF FACTS

The first applicant, Mary Marshall is a Maltese national who was born in 1924, and lives in Naxxar . The se cond applicant Marie Christiane Ramsay Pergola is a British national who was born in 1948, and lives in Naxxar . The third applicant is the estate of the late Marquis John Scicluna represented b y its administrator Marcus John Scicluna Marshall as duly authorised by the Civil Court (First Hall) (Voluntary Jurisdiction) on 5 May 2016, registered on 14 February, 1970, in Valletta. The applicants are represented by Dr I. Refalo , Dr M. Refalo and Dr S. Grech , lawyers practising in Valletta.

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 are owners of commercial properties no. 1 to 5 in St George ’ s Square, Valletta and no. 132 to 135 Strait Street, Valletta (hereinafter jointly referred to as “the property”).

On 30 July 1958 the applicants ’ ancestor (the late Marquis John Scicluna ) leased the premises no. 1 to 5 in St George ’ s Square, Valletta, to Scicluna ’ s B ank for ten years starting on 1 January 1 959 for the annual rent of 800 pounds s terling (GBP).

In March 1968, the premises (no. 132 ‑ 135 Strait Street, Valetta), adjacent to the other premises, were incorporated into the lease contract for use by Scicluna ’ s Bank. Thereinafter the lease was renewed every year.

On an unspecified date, Scicluna ’ s Bank was merged with the National Bank of Malta Ltd, and the contract of lease was renewed. The conditions imposed in the lease contracts of 1958 and 1968 et sequi stipulated that the property would be used as the seat of Scicluna ’ s Bank and that it could not be sublet or used for other purposes.

By means of Act XLV of 1973 as amended by Act IX of 1974 the Bank of Valletta (hereinafter “the Bank”) was established and the lease of the property was transferred in the name of the Bank by operation of law. The Bank was wholly owned by Government.

The applicants objected to the transfer considering it a breach of contract. Following numerous requests for the return of the property and futile attempts to agree over a new lease contract with appropriate conditions, in 1989 the applicants instituted ordinary proceedings (no. 926/1989) before the civil courts, in their ordinary jurisdiction, to regain possession of the property. In the applicants view, since it was a business lease and therefore a going concern which could be terminated at any time, the special rent laws under Article 69 of the Laws of Malta did not apply to it.

Twenty ‑ one years later, the case was determined by a final judgment of the Court of Appeal of 25 June 2010, whereby the court found that the lease in favour of the Bank was protected under Article 69 of the Laws of Malta (until 2028) and therefore the ordinary courts where not the competent forum to address the applicants ’ complaints.

2. Constitutional redress proceedings

On 11 November 2010 the applicants instituted constitutional redress proceedings relying on Article 1 of Protocol No. 1 to the Convention alone and in conjunction with Article 14 of the Convention, and Article 6 § 1 of the Convention (fair trial within a reasonable time).

By a judgment of 24 June 2016 the Civil Court (First Hall) in its constitutional competence upheld the applicants ’ claims in part. It found a violation of Article 1 of Protocol No. 1 to the Convention and a breach of the reasonable time requirement under Article 6 of the Convention in relation to proceedings no. 926/1989, and awarded the applicants 1,000,000 euros (EUR) in compensation. It r ejected the claim under Article 14 of the Convention. Costs were to be paid by the defendants.

In so far as relevant, the court rejected i ) the defendant ’ s plea that the applicants had not presented proof of their title to the property ii) the defendant ’ s objection ratione temporis and iii) the defendant ’ s objection of non ‑ exhaustion of ordinary remedies. The court noted that previous judicial action had recognised the applicants ’ interest; that the situation complained of was a continuous one; and that the applicants had no ordinary remedies available to them given that the Rent Regulation Board (RRB) was not an effective remedy.

On the merits, the court found that the applicants had been deprived of their possessions, but the legislative intervention had been lawful (the lease at issue was valid at law and the Bank remained protected) and pursued the public interest in view of the economic climate at the time. Nevertheless, in the absence of adequate compensation there had been a breach of the applicants ’ property rights. The court noted that according to the court ‑ appointed expert the estimated rental value of the property was EUR 159,350 [annually] thus the rent received by the applicants was derisory and as a result they were suffering an excessive burden.

The court found a violation of the reasonable time requirement under Article 6 § 1 of the Convention in the light of the twenty-one year duration of the civil proceedings instituted by the applicants. As to Article 14, in the absence of a comparator, there could be no violation of that provision.

The Government and the applicant appealed.

By a judgment of 24 June 2006, the Constitutional Court, upheld only in a limited part both appeals and confirmed the first ‑ instance judgment, with a varied reasoning in part, but reduced the compensation to EUR 25,000.

In particular, the Constitutional Court confirmed the first ‑ instance court ’ s rejection of non ‑ exhaustion of ordinary remedies, noting that it had not been clear whether the competent forum to determine the matter would have been the civil courts or the RRB. The applicants undertook the remedy before the civil courts and it took the latter twenty ‑ one years to come to the conclusion that they were not the competent forum. The first ‑ instance court had thus been correct in looking into the merits of the case.

As to the merits, the Constitutional Court confirmed that the measure was disproportionate given the striking difference between the ren t the applicants perceived, EUR 4,277.80 annually, and its rental value on the market, EUR 159,350 annually. The amendments as a result of Act X of 2009 [which amended the Civil Code and was aimed at ameliorating the position of land owners who were subject to controlled rents] were of little comfort given that the applicants had been suffering a breach for a long time and would continue to do so for another twelve years given that Article 1531I of the Civil Code resulting from the 2009 amendments ‑ which provided for a possibility of owners regaining their property ‑ could only come to play after twenty years from 2008. Furthermore, the fact that the applicants had not lodged proceedings before the RRB could not play in their disfavour given that the RRB was bound by law and therefore it could not award an amount of rent which would have fulfilled the proportionality requirement.

As to the violation of Article 6 the Constitutional Court noted, in brief, that case started in 1989 and the submission of evidence came to an end in 1994. It then took four years for the applicants to file their submissions. At that stage the court accepted the applicants ’ request to nominate a court ‑ appointed expert, but it then took six years, until 2006, for a court ‑ appointed expert to submit a technical report, which was confirmed on oath in January 2007, and a first-instance judgment was delivered on 28 March 2008. During that time, in 2003 the court had asked the parties for submissions and the applicants had presented their submissions only a year later in 2004. The proceedings before the appeal court had not been excessively long, while it was true that the appeal was lodged on 16 April 2008 and was appointed for hearing on 12 April 2010, the final judgment had been issued just two months later. It was thus clear that most of the delay was due to the applicants, namely, four years for their submissions, and then six years for the additional technical experts ’ report ‑ although the latter ’ s delay was justified given that two of the experts had to be replaced. However, given that the case was of average complexity the State could not be exonerated from its responsibility of an overall twenty ‑ one year delay. Nevertheless, given the responsibility of the applicants for part of the delay, in the Constitutional Court ’ s view a finding of a violation was sufficient just satisfaction in the present case.

The Constitutional Court further confirmed that there had been no violation of Article 14, noting that their comparators, namely persons having similar property to that of the applicants had been treated in the same way, and that the applicants had not provided evidence of any ground on which the alleged discrimination was based.

As to redress, the Constitutional Court considered that it was not the adequate forum to decide on the eviction of a tenant, which was the competence of the ordinary courts or the RRB. However, given that the application of Chapter 69 of the Laws of Malta, in combination with Act XLV of 1973 as amended by Act IX of 1974 had breached the applicants ’ human rights, the Constitutional Court ordered that such laws could no longer be relied on as a basis for the occupation of the premises in the present case. As to compensation, having considered that the applicants ’ waited twenty ‑ three years to lodge constitutional redress proceedings and the disproportion of the rent received by the applicants in the light of the market value, as well as the order invalidating the effects of the impugned laws between the parties at issue, the Constitutional Court awarded EUR 25,000. Costs were to be paid in the ratio of 3/5 by the applicants and 2/5 by the Government.

B. Relevant domestic law

The relevant provision of the Reletting of Urban Property (Regulation) Ordinance, Chapter 69 of the Laws of Malta, enacted in June 1931 and subsequently amended, and those of the Civil Code, Chapter 16 of the Laws of Malta, as amended in 2009, are set out in Zammit and Attard Cassar v. Malta (no. 1046/12 , §§ 2 6 ‑ 27, 30 July 2015).

Act XLV of 1973 and Act IX of 1974 vested the administration and full control of The National Bank of Malta and Tagliaferro Bank in the Council of Administration, which in turn passed the assets of The National Bank of Malta to the Bank of Valletta.

COMPLAINTS

The applicants complain under Article 1 of Protocol No. 1 to the Convention alone and in conjunction with Article 13 of the Convention that the Constitutional Court judgment in their favour failed to give them appropriate redress for the violation suffered, and of which they therefore remained victims. In particular, as per its usual practice, the Constitutional Court, had i ) failed to evict the tenants, ii) awarded a meagre amount of compensation , i ii) imposed costs of the proceedings on the succes sful applicants. Thus, in their view, given the domestic case ‑ law, constitutional redress proceedings could not be considered as an effective remedy.

Similarly the applicants complain under Article 6 § 1 (length of proceedings) alone and in conjunction with Article 13 that the Constitutional Court judgment in their favour failed to give them any redress for the violation suffered, and of which they therefore remained victims. Thus, in their view constitutional redress proceedings could not be considered as an effective remedy.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 1 of Protocol No. 1 to the Convention in the present case? In particular, did the applicants suffer an individual excessive burden as a result of the impugned interference?

2. Was the length of the civil proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

3. Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 1 of Protocol No. 1 to the Convention, as required by Article 13 of the Convention? In particular, having regard to the awards of compensation and the orders to pay costs, as well as to the absence of an order for the eviction of the tenants, can constitutional redress proceedings be considered effective (see, mutatis mutandis , Apap Bologna v. Malta , no. 46931/12 , 30 August 2016) ? The parties are requested to substantiate their replies by means of examples of recent court decisions in connection with breaches of this kind.

4. Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 6 § 1 concerning the length of the proceedings, as required by Article 13 of the Convention? In particular, having regard to the awards of compensation or lack thereof as in the present case, can constitutional redress proceedings be considered effective? The parties are requested to substantiate their replies by means of examples of recent court decisions in connection with breaches of the reasonable time requirement.