Communicated on 27 June 2018

FOURTH SECTION

Application no. 43586/16 Carmelo GRECH and others against Malta lodged on 21 July 2016

STATEMENT OF FACTS

A list of the applicants is set out in the appendix. The applicants who are all Maltese nationals were represented before the Court by Dr A. Sciberras , a lawyer 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 (the second applicant of 11/36 and the remaining applicants of 5/36 each) of a property (ground floor tenement in a zone of urban conservation area terraced hou ses) situated at 13 (previously 10), Precentor Street, Żejtun , (hereinafter, “the property”), which they acquired by inheritance and/or donation on different dates from their deceased parents. Prior to 1974 the property was leased by M.T.G. (the applicants ’ mother) to a certain D.B.

On 17 June 1974 the property was requisitioned by the Housing Secretary and assigned to a certain G.A. and his family as social housing for the yearly rent of 10 Maltese liri (MTL – approximately 23.29 euros (EUR)). The requisition order was also served on D.B. who renounced her rights over the property and on the same day the keys to the property were recuperated by the Government authorities.

On 30 August 1974 the property was officially assigned to G.A.

By means of a judicial letter of 19 November 1974, the Housing Secretary called upon M.T.G. to formally recognise the new tenant, G.A.

In November/December 1974 M.T.G. instituted ordinary judicial proceedings before the Civil Court (First Hall) in its ordinary competence against the Housing Secretary requesting, on the basis of hardship, the Court ’ s authorisation not to recognise the imposed rent in favour of G.A. In particular, she claimed that the requisitioned property was required for her own use and that of her family.

By a judgment of 13 January 1975 her claim was rejected.

On 18 February 1989 M.T.G. filed a judicial letter against the Housing Department requesting it to derequisition the property in question. The Housing Department refused on the grounds that such an order could only be made if the property in question was vacant.

On 22 February 1989 M.T.G. and the applicants filed an application against G.A. before the Rent Regulation Board (hereinafter, “the RRB”) requesting that they retake possession of the property on the grounds that they needed it for their own use and occupation.

On 1 July 1993 the RRB rejected the request, holding that, despite the landlord-tenant relationship between the parties, since the property was subject to a requisition order it could not order the eviction of the tenant until such time as the requisition order was in force.

On 8 July 1993 M.T.G. and the applicants appealed and on 27 April 1996 the Court of Appeal confirmed the decision of the RRB.

On 24 May 1996 M.T.G. and the applicants applied for a retrial. Their request was rejected on 8 June 1999.

On 30 March 2005 M.T.G. passed away and the applicants inherited her share of the estate, including the requisitioned property on which they paid succession duty (on the basis of a value of MTL 10,000 – approximately EUR 23,000).

On 31 May 2011 the applicants were informed, by the Housing Authority, that the property in question had been derequisitioned following a means test conducted by the said authority on G.A., which concluded that he should no longer benefit from the requisition order. Nevertheless, G.A. remained in the property. During the entire time the applicants never received any rent, which was instead deposited in court by G.A.

2. Constitutional redress proceedings

On 12 April 2012 the applicants filed a constitutional application (No. 21/2012) before the Civil Court (First Hall) in its constitutional competence complaining that their right to property had been breached and requesting compensation, as well as the eviction of the tenant.

The defendants pleaded that the applicants had not exhausted ordinary remedies; that the claim was inadmissible ratione temporis , and that the applicants had not shown a valid proof of title. On the merits they claimed that the interference was justified.

By a judgment of 3 March 2015 the court dismissed the applicants ’ claims in their entirety, upholding all of the defendants ’ pleas on the admissibility and merits.

By a judgment of 12 February 2016 the Constitutional Court reversed the first-instance judgment and found that the applicants had suffered a violation of their fundamental right to property as enshrined under Article l of Protocol No. l to the Convention and awarded the applicants EUR 5,000 representing both pecuniary and non-pecuniary damage. It however rejected the applicants ’ request for the eviction of the tenant.

The Constitutional Court noted that the ordinary remedies could not be adequate or effective in the applicants ’ case. The Constitutional Court acknowledged the prejudicial effects of the requisition order from 30 April 1987 onwards in its determination of compensation. It nevertheless noted that the applicants could have sought a constitutional remedy since 1987 but waited twenty-five years to do so – acknowledging however that most of the time was spent seeking a remedy under ordinary law. The Constitutional Court further recognised that there had been a mistake in the number of the property on the relevant documents, and noted that the applicants had been continuously recognised as the owners of the property by the Housing Authority, and that no other proof was required concerning ownership.

As to the merits, the Constitutional Court acknowledged that as a general rule preference should be given to the owner as opposed to third parties when the former required the use of the property; however, in the present case the required level of proof [concerning the applicants ’ greater need for it vis-à-vis the tenant] had not been satisfied. The fact that the tenant did not qualify as a result of a means test in 2010 did not mean that he did not qualify in 1974 and it was for the applicants to prove that he had not qualified. Consequently, the Constitutional Court held that the requisition order, in and of itself, was neither disproportionate nor unreasonable. However, although no proof was presented by the applicants regarding the actual rental (market) value, the rent of EUR 23.29 yearly was clearly not fair or proportionate compensation, even more so when the applicants were required to pay for structural repairs. There had thus been a violation of Article 1 of Protocol No. 1 due to the disproportionate burden suffered by the applicants.

The Constitutional Court admitting that the possibility of having the property vacated in accordance with ordinary law was remote, and recognising its power to order such an eviction, opted not to do so. It noted the amendments introduced by means of Act X of 2009 – whereby protected rents were increased as of 1 January 2010, which, on the date of the Constitutional Court ’ s judgment, amounted to approximately EUR 200 yearly, and which would continue to increase every three years. Under these circumstances, the eviction of the tenant was not required, and the award of pecuniary and non-pecuniary damage would suffice as a remedy. The Constitutional Court awarded EUR 5,000 in compensation jointly, and ordered the applicants to pay costs in part.

3. Recent situation

In 2018 G.A. was still occupying the property under a title of lease as protected by law.

According to an architect ’ s report of 5 June 2018, the current market value of the property, bearing in mind the plot of land, its location and its development potential, was EUR 200,000 and its rental value since 2014 was EUR 7,800 annually. On the basis of that estimate, working back by computing the property index rates of the Malta Central Bank, rough estimation of the annual rental value in 1980 was EUR 999.59, while a more conservative computation based on 3% of the market value showed the annual rental value in 1980 as being EUR 768.91.

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) and that concerning requisitions is set out in Ghigo v. Malta (no. 31122/05, §§ 18-24, 26 September 2006).

COMPLAINTS

The applicants complained that they were still victims of the violation of Article 1 of Protocol No. 1 upheld by the Constitutional Court for various reasons: i ) EUR 5,000 (from which costs had to be deducted) was too low; ii) the rent following the 2009 am endments was also insufficient ‑ according to law the applicants were entitled to EUR 949 in total for rent from 2010 ‑ 2015, and they were due EUR 862 in total for the thirty-two previous years; iii) there was no legitimate aim as from 2011 onwards since the tenant had failed his means test; iv) the Constitutional Court did not evict the tenant and thus the applicants have nearly no possibility of ever recovering their property.

QUESTIONS TO THE PARTIES

1. Given the redress provided by the Constitutional Court, have the applicants obtained sufficient relief for the breach of Article 1 of Protocol No. 1 of the Convention?

2. 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 and Apap Bologna v. Malta , no. 46931/12 , 30 August 2016) ?

Appendix