Communicated on 22 January 2015

FIFTH SECTION

Application no. 73182/12 Josephine Mary VELLA against Malta lodged on 13 November 2012

STATEMENT OF FACTS

The applicant, Ms Josephine Mary Vella , is a Maltese national, who was born in 1932 and lives in Siggiewi . She 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 number 14, in Kirkop Square, Kirkop , a two story tenement having a surface area of around 175 sq.m . ( hereinafter referred to as “the property”). On an unspecified date the applicant and her three brothers inherited an estate which included the property, and thus they owned the entire estate in common. By a deed of partition of 11 November 1989 the property was assigned to the applicant and she became its sole owner.

The property had been requisitioned in 1955 by means of a requisition order (no. 14349A). The premises were then allocated to the San Leonard Band Club in Kirkop (hereinafter “the band club”). The owner of the property never recognised the tenant and never accepted any rent from them. According to a judgment of the Civil Court (First Hall) in its ordinary jurisdiction, of 1 February 1958, the owners were entitled to do so because the tenement had not been leased as a dwelling, and thus greater risks were at play.

Consequently, in the following years the rent was paid to the owner by the competent authority (then the Director of Social Housing, today the Housing Authority). The payable annual rent amounted to 30 Maltese Liras (“MTL”) (approximately 70 euros (“EUR”)), that is, less than EUR 6 per month. According to an architect ’ s estimate of 2007, the rental value of the tenement per month was MTL 750 (approximately EUR 1,747).

Over the years the band club effected extensive structural alterations, without the consent of the owners or the relevant permits from the competent authorities. According to an architect ’ s report there had been a total change and the alteration effected had effaced what was once the traditional lay out of important buildings in old Maltese towns. According to the applicant this deprived her of the valuable quality and historical and architectural importance of the property, thus, devaluing it.

According to the applicant the band club also repeatedly breached the occupant ’ s agreement which it had signed, by manufacturing fireworks on the premises, and conducting commercial activities (such as running a bar and leasing premises as a wedding hall despite not having the requisite authorisation).

As from 2008, in the light of the below constitutional proceedings, the band club started depositing the annual rent in court.

2. Proceedings concerning adjacent property

The applicant and her brothers also owned a property (18 St. John ’ s Alley, Kirkop ) adjacent to the tenement above, which was requisitioned in 1986 and also assigned to the San Leonard Band Club.

In 1987 the owners of the tenement instituted civil proceedings before the Civil Court (First Hall) in its ordinary jurisdiction against the Housing Secretary and the band club. They requested that the requisition order of 30 December 1986 be declared null and void as being contrary to the 1949 Housing Act, and sought to regain possession of the tenement. They also requested compensation for the damage allegedly sustained.

In a judgment of 9 October 1991, the Civil Court (First Hall) in its ordinary jurisdiction rejected the plaintiffs ’ claim. The owners appealed against that decision.

In a judgment of 30 December 1993, the Court of Appeal declared that the requisition order was null and void and ordered that the appellants be given possession of the premises within six months. It considered that the requisition for the purposes of assigning the property to the band club could not be considered to be in the public interest. It sent the case back to the Civil Court (First Hall) in its ordinary jurisdiction regarding compensation for the damage allegedly sustained by the appellants.

In a judgment of 31 May 2005, the Court of Appeal rejected a request for a new trial submitted by the band club.

In a judgment of 16 October 2006 the Civil Court (First Hall) in its ordinary jurisdiction found the Housing Secretary and the band club responsible for damages suffered by the owners in connection with structural alterations to the property. This judgment was upheld by the Court of Appeal on 27 February 2009.

By a judgment of 6 May 2009 the Civil Court (First Hall) in its ordinary jurisdiction awarded the owners EUR 72,000 in damage, covering EUR 16,000 for missing objects, EUR 40,000 to rectify the structural changes made and EUR 16,000 for the loss of use of the property for twenty years. This judgment was confirmed by the Court of Appeal on 2 October 2012.

3. Constitutional redress proceedings

In 2007 the applicant instituted constitutional redress proceedings in relation to the property requisitioned in 1955 asking the court to declare that as a result of the requisition order and the continued occupation of the premises she had suffered a breach of her rights under Article 14 of the Convention and Article 1 of Protocol No. 1 to the Convention. She asked the court to award her compensation for the taking of possession of the property and for the violations suffered, and to order any other measure capable of preventing the continuation of the violation including the release of the property.

The defendants, namely, the Director of Social Accommodation, the Attorney General and San Leonard Band Club argued that no such violations had occurred.

By a judgment of 11 October 2011, the Civil Court (First Hall) in its constitutional jurisdiction upheld the applicant ’ s claims. It considered that the requisition order had been issued for the property to be enjoyed by a private entity and therefor the measure had not been in the public interest. In this connection it referred to a judgment of 30 December 1993 by the Court of Appeal concerning what it considered as the same property (see above). Moreover, the measure had not been proportionate. The rent had been derisory causing the applicant to suffer a disproportionate and excessive burden. The applicant had therefore suffered a violation of Article 1 of Protocol No. 1. According to the court the applicant had also suffered a violation of Article 14, it having been only her property which was requisitioned for the use of the band club. Bearing in mind its rental value as established by the expert and that the sale value of the property was MTL 180,000 (approximately EUR 420,000), as well as the long time during which the requisition was in in place and that it remained in place, the court awarded the applicant EUR 60,000 in compensation ( kumpens ) for the requisition of the premises and the violations found, noting it was not in this context awarding civil damage ( danni ċ ivili ). The amount had to be paid as to three quarters by the Director of Social Housing and one quarter by the band club. It further ordered the band club to vacate the premises within three months of the date of judgment and to return the premises to the applicant.

San Leonard Band Club appealed arguing that it could not be held responsible for breaches of human rights and that in any event the measure had been in the public interest. It further contested the order to vacate the property. The Attorney General and the Director of Social Accommodation also appealed, in particular in relation to the findings of a lack of a public interest, a violation of Article 14 and the redress awarded. The applicant cross appealed arguing that the compensation awarded was too low and did not reflect the losses she had incurred over the years.

By a judgment of 25 May 2012, the Constitutional Court confirmed the first-instance judgment in part. It reiterated the finding of a violation of the applicant ’ s rights under Article 1 of Protocol No.1 only in so far as the requisition had been disproportionate. It, however, found that it had been in the public interest – the court considered that jurisprudence had shifted since the time of the judgment of 30 December 1993 of the Court of Appeal on which the first-instance court had based its assessment. In the present case the requisition had served a social and cultural purpose for the generality of citizens and could not be said to have served solely private interests.

It further found that there had been no violation of Article 14.

As to the redress, the Constitutional Court revoked the order for the club to vacate the premises. Having considered that the violation of Article 1 of Protocol No. 1 was a consequence of the lack of a fair balance between the interests of the landlord and those of the tenant, and given that the validity of the lease was not at issue in the present case, it did not appear appropriate for the Constitutional Court to order the eviction of the tenant, it sufficed that that unfair balance be redressed. The Constitutional Court confirmed the amount of compensation as awarded by the first-instance court, including the way in which it had to be shared. It considered that the band club had benefited of the situation and never attempted to fix it despite the fact that it had not been recognised as a tenant. In relation to the amount of compensation it considered that that the disproportionality of the measure had not persisted since the start of the requisition, namely in 1955, but started to be so only after the eighties. Furthermore, the applicant had received the rent paid by the department and had instituted constitutional proceedings only in 2007 (while not ever contesting the validity of the requisition) thus, it was legitimate and in line with local case-law to reduce her compensation. It also noted that the property had been taken in the public interest and therefore compensation needed not reflect market values. It followed that compensation had to be reduced, however, given that the property was not to be vacated, it was appropriate to retain the amount awarded by the first-instance court. Lastly, the court noted that the claim for damages for the depreciation of the property as a result of structural works did not fall within the ambit of a constitutional complaint, and it was, thus, not for the court to award such damage.

The Constitutional Court ordered the applicant to pay the costs of the cross-appeal and half the judicial costs of the proceedings before the two jurisdictions.

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, §§ 18-24, 26 September 2006).

2. The Civil Code

The relevant Articles of the Civil Code read as follows:

Article 1523(3)

“"commercial tenement" means an urban tenement which is not a residence and which is leased to house an activity primarily intended to generate profit and includes, but is not limited to, an office, a clinic, a tenement leased out for the sale of merchandise by wholesale or retail, a market stall, a warehouse, a storage used for commercial purposes as well as any tenement licensed to sell things, wines, spirits or foodstuff or drinks, theatre, or tenement mainly used for any art, trade or profession:

Provided that a tenement leased to a society or leased to a musical, philanthropic, social, sporting or political entity, that is used as a club, shall not be considered as a commercial tenement even if part of it is used for the purpose of generating profit;

"club" means any club which is registered as such with the Commissioner of Police in accordance with the provisions of the law.”

Article 1531J

“In the case of a tenement leased to an entity and used as a club before the 1st June, 1995 including but not limited to a musical, philanthropic, social, sport or political entity, when its lease is for a specific period and on the 1st January, 2010 the original period "di fermo " or "di rispetto " is still running and the lease has not yet been automatically extended by law, then in that case the period of lease established in the contract shall apply. In all other instances where the contract of lease was made prior to the 1 st June, 1995 the law and all definitions as in force on the 1 st June, 1995 shall continue to apply:

Provided that notwithstanding the provisions of the law as in force before the 1 st June, 1995, the Minister responsible for accommodation may from time to time make regulations to regulate the conditions of lease of clubs so that a fair balance may be reached between the rights of the lessor, of the tenant and the public interest.”

Article 1531M

“With regard to leases made before the 1 st June, 1995 of tenements which are not residences or commercial tenements, subject to the provisions of article 1531J relating to clubs, and subject to the provisions of article 1531H with regard to garages and summer residences, the law and all definitions as were in force before the 1 st June, 1995 shall continue to apply:

Provided that the Minister responsible for accommodation may from time to time make regulations to regulate such leases so that a fair balance may be reached between the rights of the lessor, of the tenant and the public interest.”

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.”

COMPLAINTS

The applicant complains under Article 1 of Protocol No.1 and Article 13 of the Convention that she remains a victim of the violation upheld by the domestic courts in the absence of an effective remedy to obtain sufficient just satisfaction (covering fair rent over all the relevant years and the depreciation suffered as a result of the actions of the club) or to bring the consequences of the violation to an end.

QUESTIONS TO THE PARTIES

1. 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?

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

3. Did the applicant have at her disposal an effective domestic remedy for her 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, 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 br eaches of Article 1 of Protocol No. 1.