FOURTH SECTION

Application no. 3851/12 Anthony AQUILINA against Malta lodged on 20 December 2011

STATEMENT OF FACTS

The applicant, Mr Anthony Aquilina , is a Maltese national, who was born in 1948 and lives in the town of Milton in Ontario , Canada . He is represented before the Court by Dr J. Ellis, a lawyer 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 owns a property in Gozo which he inherited from his parents.

On 12 January 1960 the property was registered as a “decontrolled dwelling house” in accordance with Article 3 of the Housing Decontrol Ordinance (hereinafter “the HD Ordinance”), Chapter 158 of the Laws of Malta . At the time, Article 5(1) of the HD Ordinance provided that the provisions of the rent ordinances (namely the Reletting of Urban Property (Regulation) Ordinance, Chapter 69 of the Laws of Malta and the Rent Restriction (Dwelling Houses) Ordinance, Chapter 116 of the Laws of Malta) were not applicable to dwelling houses decontrolled in accordance with Article 3 of the HD Ordinance.

In 1970 the applicant ’ s mother let the premises to couple C., who are Maltese citizens, for a rent of 35 Maltese Liras (MTL) (appro ximately 81.50 euros (EUR)) every six months, which was later decreased to the equivalent of EUR 75.70. At the time, the law permitted her to increase the rent, to refuse to renew the said lease or to change its terms on renewal.

In 1979 the Maltese parliament enacted an amendment to the HD Ordinance, which provided that the rent restrictions set out in the rent ordinances would apply when the tenant was a Maltese citizen and occupied the house as his ordinary residence. It further provided that the landlord could not refuse to renew the lease, raise the rent, or impose new conditions on its renewal, except as provided for by law (see “Relevant domestic law” below). The applicant submitted that the contractual freedom of the parties was greatly restricted as a result of the new provisions, in that his family could not charge a fair rent or recover possession of the property, despite the fact that the tenant owned substantial immovable property.

By a decision of the Rent Regulation Board of 7 July 1998, the rent was further reduced to EUR 65 per year.

According to an architect ’ s evaluation, the property has a rental value of EUR 2,912 per year.

2. The first set of constitutional redress proceedings (no. 49/05)

In 2005 the applicant instituted constitutional redress proceedings complaining that the 1979 amendments (particularly Article 5(2) and (3) of the HD Ordinance, which prohibited landlords from refusing to renew existing leases or from raising their rent) had breached his property rights under Article 1 of Protocol No. 1 to the Convention.

On 4 June 2008 the Civil Court (First Hall) in its constitutional jurisdiction rejected his complaint. Basing its judgment on domestic case-law relating to the same subject matter, it considered that the applicant remained the owner of the property at issue, which was being used as a dwelling house, that he could still evict the tenant if the latter failed to fulfil his obligations under the lease, and that although the amount of rent was low, the law provided for an increase in rent every fifteen years amounting to double the actual rent. The interference with his rights was therefore proportionate given the needs of society. Moreover, the applicant ’ s mother had not been forced to let the property.

The applicant appealed on 25 June 2008.

On 3 November 2008 the Constitutional Court dismissed his appeal as being lodged out of time, the statutory time- limit having expired on 16 June 2008.

On 29 April 2009 the applicant lodged an application with the Court, relying on Article 1 of Protocol No. 1 to the Convention.

By a decision of 10 November 2009 the Court, sitting as a Committee of three judges, declared the applicant ’ s application inadmissible. The Court found that he had lodged his appeal with the Constitutional Court out of time and therefore domestic remedies had not been exhausted as required by Article 35 § 1 of the Convention.

3. The second set of constitutional redress proceedings

In 2010 the applicant instituted constitutional redress proceedings complaining that the 1979 amendments, which prohibited landlords from refusing to renew existing leases or from raising their rent, had breached his property rights under Article 1 of Protocol No. 1 to the Convention. He submitted that the amendments introduced in 2009 had not improved his situation, even assuming these amendments (particularly Article 1531C of the Civil Code) applied to the case in question, a matter which was unclear in the domestic context. With a new rent of EUR 185 per year (see Relevant domestic law below), he remained a victim of the alleged violation, not least because he was also prevented from refusing to renew the lease. He cited the recent case of Amato Gauci v. Malta (no. 47045/06, 15 September 2009), in which the Court had found a violation in analogous circumstances .

By a decree of 30 April 2010 the Civil Court (First Hall) in its constitutional jurisdiction ordered the defendant in the case to be the Attorney General of Malta and not the State of Malta as purported by the applicant.

On 15 October 2011 the Civil Court (First Hall) in its constitutional jurisdiction rejected the applicant ’ s complaint on the basis that the matter had already become res judicata . It noted that such a conclusion required three elements, namely the same parties ( eaedem personae ), the same object ( eadem res ) and the same cause of action ( eadem causa petendi ). Moreover, where the arguments raised were different, it had to be seen whether they could have been raised at the time of the principal judgment. In the present case, it considered that there had been no doubt that the requirement of eaedem personae had been met, despite the fact that the applicant had attempted to bring the present proceedings against the State and that the other proceedings had been against the Attorney General, as it was clear that the defendant in both cases was the Maltese Government. The element of eadem res was also satisfied in so far as the present case concerned the same lease of the same property, with the same tenants and the same circumstances that had led the applicant to institute proceedings the first time round. Similarly, the element of eadem causa petendi was also satisfied since the applicant ’ s applications to the court were to a great extent the same, if not identical, despite the fact that he made further arguments and submitted that his situation had remained unchanged notwithstanding the 2009 amendments to the Civil Code. The court considered that the changes to the application did not change the nature of the action, namely a claim that the amount of rent imposed by the law had been disproportionate. This was a matter already dealt with by the court in the first set of proceedings (no. 49/05), where the court had decided that a fair balance had been struck by the authorities, thus, it was not open for the applicant to re-litigate the matter. The court further held that even though the applicant argued that despite the 2009 amendments (if they applied at all) he had remained a victim of the alleged violation, there already existed a judgment in his respect stating that the law in so far as it applied to his case did not breach his rights, and that the most recent amendments did not worsen his situation. Thus, there could not have been a breach of his rights even under the new law. Lastly, it concluded that any new arguments put forward by the applicant should have been incorporated into the first set of proceedings. As to the Court ’ s recent case-law, it considered that the judgment cited did not entitle the applicant to ask for a fresh examination of his case.

By a judgment of 24 June 2011 the Constitutional Court upheld the first ‑ instance judgment, considering the appeal to be frivolous and vexatious.

B. Relevant domestic law

The Housing Decontrol Ordinance, Chapter 158 of the Laws of Malta, as amended in 1979 and again in 2004, in so far as relevant, reads as follows:

Article 5

“ (1) Subject to the following provisions of this article and of article 6, the provisions of the Rent Ordinances shall not apply to any decontrolled dwelling- house from the day on which the house is registered in accordance with the provisions of article 3.

(2) Where on the expiration of the lease of a decontrolled dwelling- house (whether such period be conventional, legal, customary or otherwise) the tenant is a citizen of Malta and occupies the house as his ordinary residence, the provisions of sub-article (3) shall have effect and the provisions of the Reletting of Urban Property (Regulation) Ordinance shall also apply but only in so far as they are not inconsistent with the said provisions of this article.

(3) The provisions referred to in sub-article (2) are:

( a ) It shall not be lawful for the lessor of the dwelling house to refuse to renew the lease except in any of the circumstances set out in paragraph ( b ), nor shall it be lawful for him to raise the rent, or to impose new conditions for the renewal of the lease, except as provided in paragraphs ( c ) and ( d ).

( b ) The lessor may only refuse to renew the lease, and may only resume possession of the house, at the termination of the lease, if he shows to the satisfaction of the Board, on an application to resume possession, that in the course of the lease, the tenant has failed to pay the rent due by him in respect of two or more terms within fifteen days from the day on which the lessor called upon him for payment, or has caused considerable damage to the house, or otherwise failed to comply with the conditions of the lease or his obligations thereunder , or has used the premises for a purpose other than mainly as his ordinary residence.

( c ) The rent payable under the same lease after the date of the first renewal of the lease made by virtue of this sub-article may be increased by the lessor , upon such renewal and after the lapse of every fifteenth year thereafter during the continuance of the lease in favour of the same tenant, by so much of the rent payable immediately before such renewal or before the commencement of each subsequent fifteen year period, being an amount not exceeding the said rent, as represents in proportion to such rent the increase in inflation since the year the rent to be increased was last established.

( d ) Where, on or before the date of any renewal of the lease of the dwelling- house, the lessor files in the Registry of the Board, a certificate, signed by a qualified architect and civil engineer and which is either accepted as correct by the tenant or has been so declared by the Board on an application by the lessor requesting such a declaration, showing that the house is in good state of maintenance and repair, all repairs and all maintenance of the dwelling- house shall thereafter, and throughout the continuance of the lease in favour of the same tenant, be at the charge of the tenant.”

The 2009 amendments include the introduction of Article 1531C of the Civil Code, Chapter 16 of the Laws of Malta, which in so far as relevant, and as amended again in 2010, reads as follows:

“( 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 more 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 1st January 2010 the increases in rent shall continue to be regulated in terms of that agreement until such agreement remains in force.”

COMPLAINT

The applicant complains under Article 1 of Protocol No.1 to the Convention that his property rights have been breached in so far as the law denies him a realistic possibility of resuming possession of his property, given that this is only possible in exceptional circumstances. Moreover, he is unable to charge a fair rent as the rent can only be doubled every fifteen years, a restriction which does not take into account the condition of the property market. The applicant contends that the applicable restrictions are not in the public interest, and that he has to shoulder a disproportionate and excessive burden.

QUESTION TO THE PARTIES

1 . Was the interference in question, namely the restrictions provided by the applicable legislation in the present case, in the public interest, within the meaning of Article 1 of Protocol No. 1?

2. If so, from 2008 onwards, did that interference impose an excessive individual burden on the applicant? In particular, was the rent received by the applicant proportionate to the interference complained of? The parties are requested to inform the Court as to the actual amount of rent which was payable annually, from 2008 to date.

3. Did the applicant have at his disposal adequate procedural safeguards ensuring that the operation of the system and its impact on his property rights as a landlord were neither arbitrary nor unforeseeable?