Communicated on 4 September 2018

FOURTH SECTION

Application no. 55747/16 Victor PORTANIER against Malta lodged on 19 September 2016

STATEMENT OF FACTS

The applicant, Mr Victor Portanier , is a Maltese national, who was born in 1931 and lives in Swieqi . He is represented before the Court by 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 applicant, may be summarised as follows.

1. Background to the case

The applicant holds the perpetual utile dominium of an apartment in Depiro Street Sliema .

On 5 December 1974 the applicant (and his now late wife) had entered into a contract of sub ‑ emphyteusis with couple P. for seventeen years at a sub ‑ ground rent of 140 Maltese lira (MTL), approximately 326 euros (EUR), annually. On 10 December 1991 the applicant (and his now late wife) prolonged the contract for another seventeen years, this time at a ground rent of MTL 313, approximately EUR 729, annually.

In 2008 on the expiry of the sub ‑ emphyteusis , couple P. claimed that by operation of law (Section 12 of Act XXIII of 1979 amending Chapter 158 of the Laws of Malta, the Housing (Decontrol) Ordinance – hereinafter “the Ordinance”), that contract was converted into one of lease.

2. Constitutional redress proceedings

The applicant and his now late wife (the claimants) instituted constitutional redress proceedings claiming that the provisions of law ‑ which granted an emphyteuta or sub ‑ emphyteuta the right to retain possession of the premises under a lease ‑ imposed on him as owner 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.

By a judgment of 27 October 2016 the Civil Court (First Hall) in its constitutional competence rejected the claims. It considered that when the claimants prolonged the contract of sub- emphyteusis , the 1979 amendments were already in place and thus they could not complain about their effects which had been foreseeable at the time.

The applicant ’ s wife having passed away pending proceedings, the applicant appealed, relying on Zammit and Attard Cassar v. Malta , no. 1046/12 , 30 July 2015.

By a judgment of 29 April 2016 the Constitutional Court reversed the first ‑ instance judgment in respect of Article 1 of Protocol No. 1 and upheld a breach of the applicant ’ s property rights.

The Constitutional Court found that the claimants had not had a free choice in 1991, since their options at the time were either to renew the sub ‑ emphyteusis or to transform it into a lease which carried less favourable conditions. Prior to that, when they entered the contract of sub ‑ emphyteusis in 1974, they expected to get back their property in 1991. This did not happen due to the relevant amendments in the law.

While the interference had been in accordance with the law and pursued a public interest, it could not be said to be proportionate. According to the applicant ’ s ex parte architect in 2009 the apartment had a sale value of EUR 198,000 and a rent value of EUR 608.19 monthly or EUR 7,298.28 annually. It was of relevance that couple P. had made improvements to the apartment, and yet according to their ex parte architect the apartment in 2013 was valued for the purposes of sale at EUR 100,000 bearing in mind that it had been leased for a long time. In his view had it been free from lease it would be worth EUR 140,000. According to a court ‑ appointed expert the sale value in 2014 was EUR 152,000. Relying on the sale value of the court ‑ appointed expert the Constitutional Court considered that the rental value must have been around EUR 5,600 annually. Bearing in mind the improvements and the fact that the property might not have been constantly rented out, the Constitutional Court considered that a fair rent would be between EUR 3,000 and 4,000 annually. Under the contract of lease, couple P. were paying EUR 1,886.46 which bearing in mind the public interest of the measure was not entirely disproportionate, it amounting to around half of its real rental value. However, the law left little possibility of the applicant ever recovering his property, and the increase in rent every three years, according to law, was of no comfort given that it only reflected inflation increases. Moreover, there existed no mechanism to establish a fair rent in the light of the needs of the owner versus those of the lessee. It followed that Section 12 of the Ordinance did not respect the principle of proportionality required by the Convention and the applicant ’ s property rights were therefore breached.

The Constitutional Court, bearing in mind that the applicant was due damages since 2008, awarded him EUR 2,500 covering pecuniary and non ‑ pecuniary damage. The court considered that it was not necessary to evict the tenants, but held that the tenants could not rely on Section 12 of the Ordinance to claim title to the property. One sixth of the costs of the entire proceedings were to be paid by the applicant.

3. Eviction proceedings

On 14 July 2016 the applicant instituted proceedings to evict couple P. By a final judgment of 30 May 2017 the court found in favour of the applicant who obtained the re ‑ possession of his property in September 2017.

B. Relevant domestic law

The relevant domestic law in relation to the conversion from temporary emphyteusis to lease by means of the operation of Act XXIII of 1979 is set out in Amato Gauci v. Malta (no. 47045/06, §§ 19-25, 15 September 2009).

COMPLAINTS

The applicant complained that he was still a victim of the violation of Article 1 of Protocol No. 1 upheld by the Constitutional Court given the low amount of compensation awarded. He also considered that there has been a breach of Article 13 in so far as the Constitutional Court was not an effective remedy as shown by its recurring practice.

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 applicant have at his disposal an effective domestic remedy for his 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.