Communicated on 22 January 2015

FIFTH SECTION

Application no. 46931/12 Louis APAP BOLOGNA against Malta lodged on 25 July 2012

STATEMENT OF FACTS

The applicant, Mr Louis Apap Bologna, is a Maltese national, who was born in 1944 and lives in Sliema . He is represented before the Court by Dr I. 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 is the owner of a property numbered 1 and named “London” in Moroni Street, Gzira , Malta (a two storey house, with stairs allowing access to the second floor (hereinafter “the property”)). The applicant and another five heirs inherited his uncle ’ s estate, including the mentioned property, on his demise on 16 July 1975. By a deed of partition of 30 April 1980 the property was assigned to the applicant as sole owner.

In 1976 the property was requisitioned and allocated to PS. In 1987 the applicant became aware that on an unspecified date PS had left the property and given the keys back to the authorities and that the property then became occupied by a certain A who had no title to the property (and it had not been allocated to him by the authorities).

The applicant complained to the Housing Authority, which, instead of condemning the illegal occupation, on 23 May 1988 issued a new requisition order, assigning the property to A. Subsequently A obtained a development permit to carry out alteration works to the property. The works were carried out without the consent of the applicant, as owner.

Throughout the years while the requisition order was in force, the applicant was meant to receive a rent of 40 Maltese Liras MTL (approximately 93 euros “EUR”) per year by the Housing Authority. This amount was increased to 80 MTL (approximately EUR 186) in around 2010. However, the authority has not been paying the applicant since 2003. The applicant considered that these amounts were far below the rental value of the property.

2. Constitutional redress proceedings

After having written to the Housing Authority several times to no avail, on 20 October 2009 the applicant instituted constitutional redress proceedings, lodged against the Housing Authority and the Attorney General. He requested the court to find that the requisition orders breached his rights under Article 1 of Protocol No. 1 of the Convention and consequently to annul the order, and release the property in favour of the applicant with free and vacant possession, and to award the compensation due for the occupation of the premises, as well as any other relevant redress. In so far as relevant, part of his application, concerning the facts of the case, read as follows “In 1987, after the applicant had inherited the property, he discovered that a certain PS had left the property ... ”

Pending the proceedings the court appointed an expert to evaluate the property. By a valuation of 21 January 2010 the expert considered that the rental value of the property on the market in 1987 was MTL 249 (approximately EUR 580), and that in 2010 was MTL 1,223.50 (approximately EUR 2,850) per year.

By a judgment of 14 July 2011 the Civil Court (First Hall), in its constitutional jurisdiction, found in favour of the applicant. It held that the measure was lawful and pursued a legitimate aim. However, the applicant had suffered a breach of his property rights on account of the lack of proportionality of the measure, in so far as it made the applicant bear a disproportionate burden, given the low amount of rent applicable compared to the market rental value of the property. It held, however, that the measure had not been abusive in so far as A suffered from a physical disability and lived off social benefits, he thus required lodging compatible with his needs to avoid hardship and the property at issue was adequate for such purpose.

It further held that the Attorney General should not have been a defendant in the case ( m ’ huwiex le ġ ittimu kontradittur ), the applicant was, thus, to pay his costs of the proceedings as well as those of the Attorney General (in total approximately EUR 2,950).

The court held that given that the violation arose solely from a lack of fair balance it was not necessary to annul the order and release the property. Referring to domestic case-law, it held that “while this [constitutional] court has a wide latitude in giving any order it may consider relevant in order for it to safeguard Articles 33 to 45 of the Constitution and human rights and fundamental freedoms as defined in the Convention, such latitude was not unlimited and was circumscribed by the judicial system of the country which did not allow this [constitutional] court to amend national laws, nor could it make mandatory an action which according to domestic law was discretionary, nor could it order the Housing Authority to pay rent or compensation of a higher value than that provided for by the relevant. Compensation, if any, which must be paid by this [constitutional] court is that for the violation found.”

The court awarded the applicant EUR 21,000 in what it considered as fair and just compensation in the circumstances of the case and on the basis of the evidence produced, having taken account of the following factors: that, the property had been subject to a requisition order since 1976 but it had affected the applicant since 1988 when he inherited the property (sic.); for a number of years A had paid the Housing Authority MTL 40 per year and it was only recently ( sic .) that the rent had been increased to MTL 80; moreover, the applicant had only received payment up until 2003; the rental value of the property on the market in 1987 was MTL 249 (approximately EUR 580), and that in 2010 was MTL 1, 223.50 (approximately EUR 2,850); and lastly, the requisition order was adopted in the public interest to procure accommodation for those in need, and thus compensation payable could be less than the full market value.

The applicant appealed complaining that the court had failed to annul the requisition order and return the property to him despite finding in his favour; He thus had remained a victim of the situation as it had not given him an appropriate remedy for the violation. He also complained that the compensation was far too low and had not been determined according to the applicable market value. He further argued that the Attorney General had been the correct defendant given that the amount of rent was dependant on the law which in consequence was also at issue. It does not transpire from the written pleadings that the applicant raised the issue of compensation in relation to the years before 1988, during which he had already been an owner of the property, in part or in full.

The Housing Authority and the Attorney General also appealed, noting that they agreed with the merits of the first instance decision, they requested the court to reduce the award of compensation - which had been based on equity ( arbitrio boni viri ) and not on proper calculations - especially because the applicant had waited twenty years to institute proceedings.

By a judgment of 24 February 2012 the Constitutional Court reduced the amount of compensation to EUR 16,000, also having considered that the applicant should be penalised for the delay (of twenty years since it was in his possession) in instituting proceedings (as had been done in other domestic cases). It noted that according to the European Court of Human Rights case-law state control over levels of rent may often cause significant reductions in the amount of rent chargeable; in the circumstances of the present case it was therefore not appropriate to award market values. It considered that the first instance court was free to make an award in equity, and correct not to award anything for the time prior to 1988, date when the applicant became the owner of the property ( sic .) and before which he had had no ties with such property. The Constitutional Court also refused to annul the order, given that it had been a lawful order pursuing a legitimate aim. It considered that in such circumstances it was not obliged to release the property and evict the tenant, nor could it impose a higher rent for the future, when such rent was not provided for by law. It reiterated that its role was limited to give compensation for the violation found, the same had also been held by the European Court of Human Rights and that compensation in cases of a constitutional nature was not equivalent to civil damage that may be pursued before ordinary jurisdictions.

It further confirmed that the proper defendant was solely the Housing Authority, and not the Attorney General, as the applicant was not contesting the constitutional validity of the law itself, but solely the requisition order over his property. The Constitutional Court confirmed the order of costs of the first instance court and ordered the applicant to pay the costs of all the parties related to the appeal.

As a result of this judgment the applicant had to pay his share of the costs of the proceedings as well as those of the Attorney General at first instance, and those of all the parties on appeal.

B. Relevant domestic law and practice

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, §§ 18-24, 26 September 2006).

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 subarticle (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 subarticle 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.”

R elevant case-law on the matter includes the judgment of Anthony Mifsud vs Superintendent Carmelo Bonello et , Constitutional Court, 18 September 2009. In that case the Constitutional Court held as follows:

“There are two types of damage to which an applicant may be entitled: moral damage, for the breach suffered, and civil or material damage, which refers to the loss of future income as a result of a loss of earning capacity. Normally, the latter type of damage is requested by means or an ordinary remedy in before courts of ordinary jurisdiction. This is so because as explained in the case of Emanuel Ciantar , vs. Commissioner of Police, Constitutional Court, judgment of 2 November 2001: ‘ The principle is always that constitutional and civil jurisdictions should remain separate and distinct, even because an application to a particular jurisdiction is regulated by the specific procedures and the aim of the remedy is not always the same ’ . Nevertheless, it is not excluded, in appropriate cases, that a person may request both types of damage from the courts of constitutional jurisdiction, and that these may be awarded by the said courts, if the proof of the loss is brought before it (see comment of the Constitutional Court in Fenech vs Commissioner of Land of 20 February 2009). Indeed, as held by this Court in Vella vs Commissioner of Police et , decided in 1991 ‘ when the object of the case is complex – and related to matters some of which have a remedy in some other law and other which only have a constitutional remedy, the latter action shall prevail ’ .”

COMPLAINTS

The applicant complains under Article 1 of Protocol No.1 and Article 13 of the Convention that he remains a victim of the violation upheld by the domestic courts in the absence of an effective remedy to obtain sufficient just satisfaction or to bring the consequences of the violation to an end.

QUESTIONS TO THE PARTIES

1. (a) Bearing in mind the findings of the Constitutional Court, its award of compensation, its order of costs, and its failure to take any further action to avoid the persistence of the unfavourable consequences of the violation for the applicant following its judgment, can the applicant still claim to be a victim of a violation under Article 1 of Protocol No. 1?

(b) In so far as the complaint concerns the period between 1976 and 1987 had the applicant clearly brought to the attention of the domestic courts, in his application or oral pleadings at first instance and on appeal, that he had been the owner of such property (in part, or in whole, accordingly) during this time?

2. Has there been a violation of Article 1 of Protocol No. 1 to the Convention?

3. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 1 of Protocol No. 1, as required by Article 13 of the Convention? In particular, in circumstances such as those of the present case, where an applicant suffers a violation as a result of the lawful and regular application of the laws in force, 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? In view of the relevant domestic law and practice, what are the limits to the powers of the courts of constitutional jurisdiction in granting redress for Convention violations? 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.