Communicated on 5 December 2016

FOURTH SECTION

Application no. 3356/15 Edward Joseph ZAMMIT MAEMPEL and Cynthia ZAMMIT MAEMPEL against Malta lodged on 14 January 2015

STATEMENT OF FACTS

The applicants, Mr Edward Joseph Zammit Maempel and Ms Cynthia Zammit Maempel , are Maltese nationals, who were both born in 1968 and live in Marsalforn and Naxxar , respectively. They are represented before the Court by Dr S. Grech and Dr I. Refalo , 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 (each own a half undivided share) of the property at number 85, St. Francis Square, Alley No. 3, Qormi , Malta.

On 18 November 1986 the applicants granted the said property on emphyteusis for twenty-one years to Mr and Ms E.

On 31 December 1992, the property was requisitioned by the Director of Social Housing by virtue of requisition order no. RO53704 (hereinafter referred to as “the requisition order”). No reason was given for the requisition. The property was allocated to Mr and Ms A. At the request of the Housing Authority, on 26 March 1997, the emphyteutical grant in favour of Mr and Ms E. was transferred to Mr and Ms A.

The contract of emphyteusis expired in 2007. However, given Article 12A, of the Housing (Decontrol) Ordinance, Chapter 158 of the Laws of Malta (see Relevant domestic law), which provided for the automatic conversion of the emphyteusis into a lease, Mr and Ms A. continued to occupy the property by title of lease.

Mr and Ms A. offered the applicants 279.52 euros (EUR) annually by way of rent. However, the applicants did not accept this rental amount on the grounds that it was too insignificant when compared to the rental value which the property would have fetched on the open market. Due to such refusal the rent was to be deposited with the court registry. The rental amount of EUR 279.52 was never revised in the subsequent years.

2. Constitutional Redress Proceedings

On 9 March 2009 the applicants filed proceedings before the Civil Court (First Hall) in its constitutional jurisdiction. The applicants claimed that their rights, as protected under Article 1 of Protocol No. 1 to the Convention were being violated because they had not received adequate compensation for the forced occupation of their property, and because the authorities had failed to properly look after the property after taking possession of it.

On 26 March 2013 the court decided in favour of the applicants. The court found a violation of the applicants ’ rights under Article 1 of Protocol No. 1 to the Convention. It confirmed that the applicants were the legitimate owners of the property, it declared the requisition order null and void, and ordered the release of the premises with vacant possession in favour of the applicants, as well as the eviction from the property within one month of Mr and Ms A. It awarded EUR 50,000 in due compensation ( kumpens dovut ) to the applicants to be paid by the Housing Authority. The costs of the proceedings were to be paid by the Housing Authority and Mr and Mrs A.

The court held that keeping the requisition order in place was unjustifiable since Mr and Ms A. had left the property in an abandoned state and left it to deteriorate without carrying out any acts of ordinary maintenance. Thus, the very scope of requisitioning a property for the purpose of “supplying housing accommodation” was not met in the present case given that Mr and Ms A. had abandoned the property. Furthermore, a disproportionate and excessive burden was being imposed on the applicants, since they had been requested to bear most of the social and financial costs of supplying housing accommodation. A balance had not been struck between the interests of the applicants (as owners of the property) and the interests of the public especially since the property lay abandoned.

The court appointed architect estimated that it would require 25,000 Maltese Liri (MTL) (now equivalent to EUR 58,234) to make the property habitable again and he evaluated the property ’ s sale value on the market (in the year 2010) to be EUR 139,800 and its rental value (for the same year) to be EUR 4,893 annually. Against that background, the court considered that the discrepancy between that amount and the rental sum offered by Mr and Ms A. rendered the situation devoid of any proportionality as required under the Convention.

Mr and Ms A. did not file an appeal but the Attorney General and the Housing Authority both appealed against the decision of the Civil Court (First Hall).

On 18 July 2014 the Constitutional Court upheld the first instance judgment in part. It confirmed that the requisition order constituted an interference with the applicants ’ property and amounted to a violation of the applicants ’ rights under Article 1 of Protocol No. 1. However, the Constitutional Court revoked the Civil Court (First Hall) ’ s order to evict Mr and Ms A. from the premises, and revoked the annulment of the requisition order. Furthermore, the Constitutional Court reduced the compensation due as non-pecuniary damage from EUR 50,000 to EUR 12,000. One-fifth of the costs of the appeal were to be borne by the applicants.

The Constitutional Court confirmed that the applicants had proved ownership of the property and noted that by means of the requisition order the applicants ’ father lost the legal possession of the property and had no means of regaining its possession as long as the requisition order remained in force. It further noted that the court appointed architect described the property as having been neglected for a long time and left without ordinary maintenance, it was (at the time of the judgment) uninhabitable. It followed that the first-instance court ’ s conclusion, to the effect that the property was not being lived in, were correct. The deterioration of the property also caused damage to the owners as substantial costs were to be incurred in order to carry out repairs.

In light of these circumstances, the Constitutional Court considered that the requisition order was putting a disproportionate and excessive burden on the applicants, who moreover, where precluded from taking judicial action before the ordi nary courts against Mr and Ms A. with the aim of protecting their interest. This was even more so given that the Housing Authority did nothing, and did not appear to have the will to do anything to remedy the damage done to the property. Indeed it appeared that the requisition order was kept in place because the Housing Authority wanted to exclude the possibility of Mr and Ms A. being evicted from the property. Nevertheless the court considered that Mr a nd Ms A . could still be protected through the lease agreement.

As to redress, the Constitutional Court observed that the first-instance constitutional jurisdiction had awarded compensation in the light of the court appointed architect ’ s valuations of the property and the expenses required to rehabilitate the property. However, it considered that while the applicants deserved compensation for the violation of their rights, namely non-pecuniary damage, the quantum established by the court of first ‑ instance was excessive. In its view, constitutional redress proceedings should not serve as a replacement to ordinary remedies available to the applicants. Indeed once a requisition order is annulled (by means of a judicial review procedure), the applicants had available other remedies to deal with both the eviction of Mr and Ms A. and the award of material damages before the ordinary courts. The Constitutional Court also observed that the applicants took a while before taking action to protect their fundamental rights, namely, in 2009, around seventeen years after the violation of their rights first occurred. Therefore as a result of this delay the Constitutional Court considered that the amount of EUR 12,000 was just and equitable as compensation for non-pecuniary damages. In relation to practical measures, the Constitutional Court considered that since the applicants still had a remedy under Article 469A (Article 409A sic.), by means of which they could attack the requisition order before the ordinary courts, it was not for it to order the nullity of such requisition order.

3. Following the Constitutional Redress Proceedings

On 5 August 2014 the Housing Authority derequisitioned the property of the applicants. However, up to the date of the lodging of the application, the property still had not been returned to the applicants. No keys were returned to them and they had no means of taking possession of the property unilaterally.

On 31 October 2014, the applicants wrote to the Housing Authority requesting that a declaration be made on whether the premises were vacant and requesting the Housing Authority to prepare a condition report detailing the state of the premises at the end of the requisition period. According to the applicants, the Housing Authority failed to reply.

B. Relevant domestic law

1. Requisition orders

The relevant domestic law and practice concerning requisition orders is to be found in, inter alia , Ghigo v. Malta no. 31122/05, 26 September 2006 , §§ 18-24.

Further amendments were introduced in 2010 which allow for an increase in the applicable rents as per Article 1531C of the Civil Code and the Minimum Compensation for Requisitioned Buildings Regulations (Subsidiary Legislation 16.2). Article 1531C of the Civil Code reads as follows:

Article 1531C

“( 1) The rent of a residence which has been in force before the 1st June 1995 shall be subject to the law as in force prior to the 1st June 1995 so however that unless otherwise agreed upon in writing after the 1st January 2010, the rate of the rent as from the first payment of rent due after the 1st January 2010, shall, when this was less than one hundred and eighty-five euro (€185) per year, increase to such amount:

Provided that where the rate of the lease was mo re than one hundred eighty ‑ five euro (€185) per year, this shall remain at such higher rate as established.

(2) In any case the rate of the rent as stated in sub-article (1) shall increase every three years by a proportion equal to the increase in the index of inflation according to article 13 of the Housing (Decontrol) Ordinance; the first increase shall be made on the date of the first payment of rent due after the 1st January 2013:

Provided that where the lease on the 1st January 2010 will be more than one hundred eighty-five euro (€185) per year, and by a contract in writing prior to 1st June 1995 the parties would have agreed upon a method of increase in rent, after 1 st January 2010 the increases in rent shall continue to be regulated in terms of that agreement until such agreement remains in force.”

In so far as relevant, the Minimum Compensation for Requisitioned Buildings Regulations read as follows:

“ 2 (1) The provisions of article 1531C of the Civil Code shall, as from first (1st) payment of rent due after the 30th September 2011, apply to buildings consisting of a residence which are requisitioned in terms of the Housing Act.

(2) For the purposes of these regulations ‘ rent ’ shall also include compensation payable under the Housing Act for the requisition of a building consisting of a residence and in the case of such compensation being payable, the provisions of article 1531C of the Civil Code shall apply mutatis mutandis .”

Section 8 of the Housing Act, Chapter 125 of the Laws of Malta, in so far as relevant, reads as follows:

“(1) Where any persons have been accommodated in a building which is held by virtue of a requisition, the Director may at any time, by means of a judicial letter, require the requisitionee to recognize the persons so accommodated as tenants or as subtenants of the building, as the case may be.

(2) Within thirty days of service on him of a judicial letter under the last preceding subsection, the requisitionee , by application before the First Hall of the Civil Court in contestation of the Director, may pray for an authorization of non-compliance with that request:

Provided that, in the case where the building has been requisitioned from the tenant, the latter, by a judicial letter to be filed within fifteen days from service on him of the judicial letter provided for in the last preceding subsection, may inform the Director that he does not wish to retain the tenancy, and thereupon the Director shall be entitled to take action under the last preceding subsection against the landlord.

(3) The court shall not grant the authorisation of noncompliance mentioned in the last preceding subsection unless the applicant shows to the satisfaction of the court that serious hardship would be caused to him by complying with that request:

Provided that the assertion that the requisitionee wishes to take possession of the building for his own use or for the use of any member of his family shall not be considered of itself as a hardship for the purposes of this subarticle .”

Article 12A of the Housing (Decontrol) Ordinance, chapter 158 of the Laws of Malta, in so far as relevant, reads as follows:

“(1) This article shall apply:

( a ) on the expiration of a temporary emphyteusis of subemphyteusis (hereinafter in this article referred to as "the most recent emphyteusis or sub- emphyteusis ") which is not one the effects of the termination of which are regulated by article 12(2)( a ) or ( b ) or by article 12(4) or 12(5);

( b ) of a dwelling house which at the time of the expiration of the most recent emphyteusis or sub- emphyteusis :

( i ) is occupied by a citizen of Malta as his ordinary residence; and

(ii) is subject to another emphyteusis or subemphyteusis (hereinafter in this article referred to as "the preceding emphyteusis or subemphyteusis ") whether perpetual or temporary.

(2) On the expiration of the most recent emphyteusis or subemphyteusis the emphyteuta or the sub- emphyteuta who satisfies the requirements of subarticle (1 )( b )( i ) shall be entitled to continue in occupation of the dwelling house under a lease from the person holding the preceding emphyteusis or sub- emphyteusis at the same rent and under the same conditions applicable according to article 12(2)( i ), ( ia ) and (ii) which shall apply mutatis mutandis .

(3) On the expiration of the preceding emphyteusis or subemphyteusis the lease mentioned in subarticle (2) shall remain in force for the same rent and under the same conditions as mentioned in subarticle (2) between the tenant and the person who from time to time would, were it not for the tenancy, be entitled to the vacant possession of the house.

(4) The provisions of this article shall also apply in all cases where although the most recent emphyteusis or sub- emphyteusis shall have expired before the 1st July 2007 the person who was the emphyteuta or the sub- emphyteuta in the most recent emphyteusis or sub- emphyteusis still occupies the house as his ordin ary residence on the said date.”

2. Remedies

Article 46 of the Constitution of Malta, in so far as relevant, reads:

“(1) ... any person who alleges that any of the provisions of articles 33 to 45 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him, or such other person as the Civil Court, First Hall, in Malta may appoint at the instance of any person who so alleges, may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress.

(2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of sub-article (1) of this article, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of the said articles 33 to 45 (inclusive) to the protection of which the person concerned is entitled:

Provided that the Court may, if it considers it desirable so to do, decline to exercise its powers under this sub-article in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.

(4) Any party to proceedings brought in the Civil Court, First Hall, in pursuance of this article shall have a right of appeal to the Constitutional Court.”

Similarly, Article 4 of the European Convention Act, Chapter 319 of the Laws of Malta, provides:

“(1) Any person who alleges that any of the Human Rights and Fundamental Freedoms, has been, is being or is likely to be contravened in relation to him, or such other person as the Civil Court, First Hall, in Malta may appoint at the instance of any person who so alleges, may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress.

(2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of sub-article (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement, of the Human Rights and Fundamental Freedoms to the enjoyment of which the person concerned is entitled:

Provided that the court may, if it considers it desirable so to do, decline to exercise its powers under this sub-article in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other ordinary law.

(4) Any party to proceedings brought in the Civil Court, First Hall, in pursuance of this article shall have a right of appeal to the Constitutional Court.”

Article 469A of the Code of Organization and Civil Procedure of the Laws of Malta, in so far as relevant, reads as follows:

“(1) Saving as is otherwise provided by law, the courts of justice of civil jurisdiction may enquire into the validity of any administrative act or declare such act null, invalid or without effect only in the following cases:

( a ) where the administrative act is in violation of the Constitution;

( b ) when the administrative act is ultra vires on any of the following grounds:

( i ) when such act emanates from a public authority that is not authorised to perform it; or

(ii) when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon; or

(iii) when the administrative act constitutes an abuse of the public authority ’ s power in that it is done for improper purposes or on the basis of irrelevant considerations; or

(iv) when the administrative act is otherwise contrary to law.

(2) In this article - "administrative act" includes the issuing by a public authority of any order, licence , permit, warrant, decision, or a refusal to any demand of a claimant, but does not include any measure intended for internal organization or administration within the said authority:

Provided that, saving those cases where the law prescribes a period within which a public authority is required to make a decision, the absence of a decision of a public authority following a claimant ’ s written demand served upon it, shall, after two months from such service, constitute a refusal for the purposes of this definition;

(3) An action to impugn an administrative act under sub-article

(1)( b ) shall be filed within a period of six months from the date when the interested person becomes aware or could have become aware of such an administrative act, whichever is the earlier.”

COMPLAINTS

The applicants complain about the ongoing interference with their property in breach of Article 1 of Protocol No. 1. Invoking Article 13 in conjunction with Article 1 of Protocol No. 1, they further complain about the lack of an effective remedy available to them to remedy such situation and the insufficient redress provided by the Constitutional Court.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 1 of Protocol No. 1 to the Convention, in connection with the requisition order imposed on the applicants ’ property in 1992?

2. Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 1 of Protoco l No. 1, as required by Article 13 of the Convention? In particular, in circumstances such as those of the present case can constitutional redress proceedings be considered “effective” in the sense either of preventing the alleged violation or its continuation or of providing adequate redress for any violation that has already occurred? The parties are requested to substantiate their replies by means of examples of recent court decisions in connection with breaches of Article 1 of Protocol No. 1.