Communicated on 22 January 2015

FIFTH SECTION

Application no. 31454/12 Gerald MONTANARO GAUCI and others against Malta lodged on 22 May 2012

STATEMENT OF FACTS

A list of the applicants is set out in the appendix. They were represented by Dr David Camilleri an advocate 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 a house at 4, Wagon Street, Rabat, Malta, which they inherited from their late father in 1997. It is a corner house having an area of around eighty-two square metres.

Despite it not being proved before the domestic courts, the applicants alleged that on an unspecified day in 1987 a certain CC broke into the house and started to live there, with his family, without legal title.

The applicants ’ ancestor instituted judicial proceedings to evict CC.

According to the applicants, CC attempted to validate his position by soliciting the authorities ’ action.

A few days before the general elections, on 14 April 1987, the Maltese Government issued a requisition order (no. 1031) under the Housing Act, Chapter 125 of the Laws of Malta, over the concerned property. The authorities assigned the property to CC, who, thus, as from 30 April 1987 had legal title over it.

Following various complaints by the owner, on 2 June 1987 the property was derequisitioned.

The applicants ’ ancestor again instituted judicial proceedings to evict CC who no longer had title to the premises.

These proceedings where withdrawn due to a clerical mistake in the name of the complainant. Once this was corrected, proceedings were substituted and recommenced in September 1987. Meanwhile a request for an injunction ( mandat ta ’ inibizzjoni ), to prohibit CC from making structural changes to the property, and from entering the property was upheld in part, namely in relation to the works.

On 8 June 1988, pending the judgment of the ordinary court concerning the eviction, the Maltese Government again requisitioned the property, under an order carrying the same reference as the first requisition (no. 1031) and assigned it to CC.

In consequence, following the State ’ s action, the Court of Magistrates (in its civil jurisdiction), by means of a judgment of 18 January 1991, dismissed the applicants ’ ancestor ’ s claim considering that since the property was again requisitioned and, thus, was now administered by the Housing Authority who assigned it to CC, it could no longer take cognisance of the claims put forward by the complainant. It, however, ordered the successful defendant to pay the costs of the proceedings.

The rent fixed by the authorities amounted to approximately 35 euros (EUR) annually. By amendments introduced by means of Act X of 2009, the rent payable on requisitioned premises was increased to a maximum of EUR 185 annually, which may be increased every three years.

The applicants refused to receive such rent or to recognise CC as tenant, to avoid prejudicing their case.

According to a valuation of January 2011, by the applicants ’ ex-parte expert, the sale value of the property is EUR 230,000 and given its location it had commercial potential. The estimate is, however, based on the premise that the expert had only seen the property from the outside and had relied on the applicants ’ descriptions.

T he impugned restrictions did not apply to leases entered into after 1 June 1995.

2. Constitutional redress proceedings

On 15 September 2008 the applicants instituted constitutional redress proceedings. They filed the action against the Director of Social Housing. The Housing Authority and CC were later joined into the suit. The applicants complained that the requisition order breached their rights under Article 1 of Protocol No. 1 to the Convention. They asked the court to award them adequate compensation reflecting a reasonable rent from 8 June 1988 to date of judgment and any losses incurred as a result of their inability to develop the property. They further asked the court to order the release of the premises free and unencumbered and, if this were not possible, to establish fair conditions and a fair rent over the property for the future. Lastly, they asked the court to give any other orders or directions to ensure that their human rights were respected.

By a judgment of 9 December 2010 the Civil Court (First Hall) in its constitutional jurisdiction found in favour of the applicants. With reference to preliminary pleas it considered that it had not been necessary also to notify the Attorney General - such a requirement had been intended to ensure that a government department would not fail to appear, a risk eliminated if the Attorney General, who had to provide lawyers for the department ’ s defence, was notified. In the present case no such risk came to be and therefore the failure to notify him did not bring about the nullity of the claim. The applicants had been suffering a continuing violation from 1988 since they remained dispossessed of their property and therefore had legal interest to bring an action. Furthermore, the applicants had no other remedies available, indeed their action to evict CC had been dismissed because of their inability to lodge such an action once the property was requisitioned and no other remedy could have offered the applicants compensation for the breach of their property rights.

On the merits the Civil Court (First Hall) found a violation of their rights under Article 1 of Protocol No. 1 in so far as the applicants had been affected by the measure for numerous years during which they were only owed EUR 35 annually. The court also expressed doubts as to the public interest of the measure. This was in line with the findings of the European Court of Human Rights in similar circumstances, in the cases of Ghigo v . Malta (no. 31122/05, 26 September 2006) and Fleri Soler and Camilleri v. Malta (no. 35349/05, ECHR 2006 ‑ X). It awarded the applicants a sum in equity ( arbitrio boni viri ) of EUR 8,000 in compensation and ordered the return of the premises free and unencumbered to the applicants within three months. It considered that it had the power and the duty to take such action under Article 4 (2) of the European Convention Act (see relevant domestic law), in order for the applicants to stop suffering the consequences of the violation, a situation which would persist in the absence of legislative intervention. Costs were to be paid by the defendants.

The defendants appealed both in respect of the preliminary pleas and on the merits. The Attorney General also appealed on the same lines, thus joining the proceedings at the appeal stage as a third party on the basis of his interest in the case ( appell ta ’ terz ). The applicants appealed only in respect of the award of compensation which they considered to be too little given the value of the property in issue.

Before the Constitutional Court the applicants challenged the President of the Constitutional Court to withdraw from hearing the case on the basis of Article 734 of the Code of Organisation and Civil Procedure, in so far as at the time when the proceedings were lodged he had been the Attorney General, and therefore, the senior legal officer responsible for the defence of the two co-defendants in the applicants ’ case. The presiding judge had also been the legal officer advising the Government when drafting and introducing Act X of 2009. However, the President of the Constitutional Court refused to withdraw.

By a judgment of 25 November 2011 the Constitutional Court confirmed the first-instance judgment in relation to the preliminary pleas and merits, but varied the redress awarded.

The court noted, inter alia , that any available ordinary remedies such as judicial review proceedings or proceedings before the Rent Regulation Board were not appropriate in such circumstances. As to the merits it considered that the measure of control of use had been lawful and pursued a legitimate aim in the public interest, namely social accommodation for CC who, as it transpired, had obtained legal title to it by means of the requisition and, thus, could not be considered a squatter. Despite the lack of a rental valuation of the property, it was clear that even for a small house, a rent of EUR 3 a month (EUR 35 annually until 2010) was extremely low and could not be considered as fair. This situation had lasted for more than twenty-two years. In consequence the applicants had suffered a disproportionate burden as the proportionality requirement had not been fulfilled.

As to redress, the Constitutional Court increased the compensation to EUR 14,000 but revoked that part of the judgment ordering the release of the property. It considered that since the requisition was lawful and in the public interest, it was for the court to redress the lack of a fair balance but it was not required to annul the requisition order. 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 ord er 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 law. Compensation, if any, which must be paid by this [constitutional] court is that for the violation found.” As to the amount of compensation, it noted that in such cases, given the legitimate aim it was not required to follow market values. In the present case the court bore in mind the sums usually awarded by the European Court of Human Rights, the low amount of rent due, the relevant period from 1988 to date of this judgment, the unavailability of an expert valuation of the rental value of the property, the fact that the applicants brought proceedings in 2008 and that the more favourable order of the first ‑ instance court was being revoked.

The costs of the proceedings were to be paid by each party in their own share.

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. The Code of Organisation and Civil Procedure

Article 734 of the Code of Organisation and Civil Procedure (COCP) in so far as relevant reads as follows:

“ (1) A judge may be challenged or abstain from sitting in a cause –

( d ) ( i ) if he had given advice, pleaded or written on the cause or on any other matter connected therewith or dependant thereon;

3. 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 v 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 applicants complain under Article 1 of Protocol No.1 to the Convention about the requisition order over their property. They considered that it had been issued abusively to prevent a judgment in the applicants ’ favour. They further considered that it had not been issued in the public interest, to the contrary, in their view, it had been issued in the private interest of a squatter who had entered the premises illegally. Moreover, the effects of the requisition, in particular the forced landlord-tenant relationship, the low amount of rent, including that following the 2009 amendments, and the fact that they could not terminate the lease nor dispose of the property freely for an indeterminate period of time, imposed on them an excessive burden as had repeatedly been held by this Court, they referred to, inter alia , Fleri Soler and Camilleri v. Malta , no. 35349/05, ECHR 2006 ‑ X. They argued that given the Constitutional Court ’ s meagre award of compensation for the loss suffered over twenty-three years, they remained victims of the said violation.

The applicants further complain about the impartiality of the Constitutional Court, in so far as its president had previously been the Attorney General, at the time when the proceedings were lodged, and therefore, the senior legal officer responsible for the defence of the two co ‑ defendants in the case. The presiding judge had also been the legal officer advising the Government when drafting and introducing Act X of 2009.

QUESTIONS TO THE PARTIES

1. Bearing in mind the findings of the Constitutional Court, its award of compensation 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?

2. In the present case, has there been a violation of Article 1 of Protocol No . 1 to the Convention?

3. Did the applicants have a fair hearing in the determination of their civil rights and obligations before the Constitutional Court in accordance with Article 6 § 1 of the Convention? In particular, was the President of the Constitutional Court, which dealt with the applicants ’ case, impartial as required by Article 6 § 1 of the Convention? The parties are requested to submit a copy of the challenge presented under Article 734 of the Code of Organisation and Civil Procedure as well as the reply thereto whether in the form of a decree or a related minute.

Appendix

N o .

Firstname LASTNAME

Birth date

Nationality

Place of residence

Gerald MONTANARO GAUCI

20/11/34

Maltese

Sliema

Alfred MONTANARO GAUCI

28/08/1936

Maltese

St. Julians

Neville MONTANARO GAUCI

18/11/1938

Maltese

St. Julians

Winston MONTANARO GAUCI

19/09/1946

Maltese

Gozo

Marie Jose SULTANA

22/07/1944

Maltese

Sliema

Nicolette ZAMMIT LUPI

08/07/1942

Maltese

Sliema