Information Note on the Court’s case-law 237

February 2020

Marshall and Others v. Malta - 79177/16

Judgment 11.2.2020 [Section III]

Article 13

Effective remedy

Systemic flaws rendering constitutional redress proceedings ineffective in respect of length-of-proceedings complaints: violation

Facts – The applicants are owners of a real estate property that for decades has been subject to a lease under a “protected re nt” regime. The lease had been contracted in 1958 with a bank. In 1989 the applicants lodged a restitution claim on ground that the special rent regime in issue could not apply to a commercial entity. But the courts found for the bank. That set of proceedi ngs lasted until 2010.

Constitutional redress was then sought by the applicants in respect of the following complaints; after a first instance, the Constitutional delivered a final judgement in 2016:

(i) Length of the civil proceedings : no award was made , as the applicants were held responsible for most of the delays.

(ii) Controlled rent regime : the Constitutional Court did accept that the effect of this regime was disproportionate given the striking difference between the rent the applicants received a nd its rental value on the market.

As to redress, though, the Constitutional Court considered that it was not the adequate forum to decide on the eviction of a tenant. In 2009 admittedly, the Civil Code had been amended to provide owners with a possibilit y of regaining their property, but this could only come to play after a twenty-year transition period ending in 2008. Instead, it however ruled that the impugned rent-control laws could no longer be relied on as a basis for the occupation of the premises i n the present case.

As to compensation, having considered that the applicants had waited twenty-three years to lodge constitutional redress proceedings as well as the above ruling invalidating the effects of the impugned laws between the parties at issue, the Constitutional Court awarded EUR 25,000. Costs were to be paid in the ratio of 2/5 by the Government and 3/5 by the applicants (amounting to about EUR 4,500).

Law

Article 13 in conjunction with Article 1 of Protocol No. 1: Although constitutional redress proceedings – the sole remedy available – are an effective remedy in theory, they are not so in practice, concerning arguable complaints in respect of the rent laws in place, which, though lawful and pursuing legitimate obj ectives, impose an excessive individual burden on applicants.

In the absence of an award covering future rent until 2028, the only remedy capable of giving adequate and speedy redress to the applicants in the present case was for the Constitutional Court to order eviction of the tenants, a course of action it had failed to undertake, as was its normal practice. Instead it had ordered that the tenants could no longer rely on the relevant law provisions to retain title to the property. While the Court will r efrain from adjudicating on the matter in general, the effectiveness of such a measure appears unsatisfactory in the present case.

Indeed, it transpires from the case file that so far: (i) neither have any eviction proceedings been undertaken (or, if so, b een concluded); (ii) nor have the tenants voluntarily vacated the property. The inaction of both parties has thus led to the status quo remaining that which existed on the date of the Constitutional Court judgment, more than three years ago.

Be that as it may, there was little justification for delaying redress in the present case, given that : (i) unlike in similar cases where the interferences had been justified by the legitimate aim of providing social housing, in the present case the interference appli ed in favour of a commercial entity, namely a bank; (ii) as the law stood, the bank would in any event lose the protection of the law and therefore would have to vacate the property when the lease came to an end in 2028.

Furthermore, t he financial redress offered to the present applicants was not adequate. The Court is concerned that the Maltese courts often fail: (i) as to pecuniary damage, to bear in mind that awards must be intended to put the applicant, as far as possible, in the po sition he would have enjoyed had the breach not occurred; (ii) to accompany such awards by an adequate award in respect of non-pecuniary damage and/or an order for the payment of the relevant costs.

Conclusion : violation (unanimously).

Article 13 in conju nction with Article 6 § 1 – While constitutional redress proceedings are an effective remedy in theory for length of proceedings complaints, they appeared to lack such effectiveness in practice at the relevant time, given the following systemic flaws ident ified: lack of speediness and regular practice of unreasonably low compensation awards. Moreover, whereas the applicants’ claims in connection with the length of proceedings were upheld, the Constitutional Court nevertheless ordered the applicants to pay 3 /5 of the costs of the proceedings. While such costs did not impede access to such a remedy in the present case, they, at the very least, often have an impact on the compensation awarded.

Conclusion : violation (unanimously).

The Court also found, unanimous ly, violations

– of Article 1 of Protocol No. 1: as established by the domestic courts themselves, the applicants were made to bear a disproportionate burden. In addition, while the overall measure may be in the general interest, the fact that there also exists an underlying private interest of a commercial nature cannot be disregarded; and

– of Article 6 § 1 in account of the excessive length of proceedings.

Article 41: EUR 500,000 jointly in respect of pecuniary damage; claim for non-pecuniary damage di smissed.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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