Published on 10 January 2022

FIRST SECTION

Application no. 15217/20 Francesca BONNICI and Others against Malta and 2 other applications (see list appended) communicated on 16 December 2021

STATEMENT OF FACTS

The applicants are Maltese nationals. A list of the applicants in respect of each application is set out in the Appendix. They are represented before the Court by Dr M. Camilleri, a lawyer practising in Valletta.

The facts of the cases, as submitted by the applicants, may be summarised as follows.

The case concerns a unilaterally imposed lease under Act XXIII of 1979 amending the Housing (Decontrol) Ordinance (‘the Ordinance’), Chapter 158 of the Laws of Malta, affecting the applicants’ property in Gzira as of 25 February 2001. The applicants inherited the property in 2007.

In 2001 the annual rent payable was approximately 219 euros (EUR), in 2013 EUR 288 and in 2016 EUR 293. However, the tenant continued to pay only EUR 203 per year. Although it would appear that, at a later stage, he paid up all his dues.

According to a court-appointed expert the annual market rental value in 2001 was EUR 2,145, in 2002 EUR 2,625, in 2007 EUR 3,325, in 2012 EUR 4,687 and in 2017 EUR 6,800. The applicants lodged constitutional redress proceedings complaining that they had suffered a breach of their property rights.

By a judgment of 21 October 2019, the Civil Court (First Hall) in its constitutional competence found a violation of Article 1 of Protocol No. 1 to the Convention and awarded EUR 15,000 in compensation for damage suffered by the applicants as of 2007. In particular for the purpose of compensation it noted that, despite domestic-case law to the contrary ( Ian Peter Ellis vs Maggur Cassar Reynaud Constitutional Court judgment of 27 January 2017), for the applicants to claim compensation also for the period prior to the date when they inherited the property, the behaviour of their predecessor in title had to be examined. On the one hand, there was the situation of persons who had done their utmost to challenge the situation created by the law all throughout the relevant time. On the other hand, you had others who remained passive, either because of lethargy or because they were satisfied with the situation as stood. In the court’s view the present case fell in the latter category and the applicants could not benefit financially of the passivity of their predecessor in title. In particular, the applicants’ narration of events was not credible, nor supported by any documentation. It also declared that Article 12 (2) of the Ordinance was no longer valid between the parties. No costs were to be paid by the applicants. None of the parties appealed.

In the meantime, in 2018 proceedings were instituted before the Rent Regulation Board (‘RRB’) to increase the rent under the 2018 amendments to the Ordinance. By a judgment of 9 January 2020, the RRB decided that, as from the next payment due, the rent should increase to EUR 5,400 a year (1.5 % of the market value). None of the parties appealed.

The applicants (the Grima and Parnis England families) co-own the property at no. 35 Dingli street, Sliema. The applicants’ ancestor had entered into a contract of temporary emphyteusis in 1960, for a period of seventeen years renewable once more. The contract was not renewed on its expiry in 1977, but the tenants continued to live there. Eventually by means of Act XXIII of 1979 amending Chapter 158 of the Laws of Malta, the tenant maintained occupation of the property under title of lease according to Article 12 (7) of the Ordinance.

In March 1979 the rent paid was approximately EUR 466 annually, which increased to EUR 685 in 1994, to EUR 741 in 2009, to EUR 803 in 2013 and to EUR 819 in 2016.

According to a court-appointed expert the annual market rental value in 1977 was EUR 1,398, in 1982 EUR 1,677 in 1987 EUR 2,516, in 1992 EUR 3,075, in 1997 EUR 4,193, in 2002 EUR 5,590, in 2007 EUR 6,150, in 2012 EUR 6,709, in 2017 EUR 7,268 and in 2019 EUR 8,400.

The applicants lodged constitutional redress proceedings complaining that they had suffered a breach of their property rights.

By a judgment of 21 October 2019, the Civil Court (First Hall) in its constitutional competence found a violation of Article 1 of Protocol No. 1, awarded EUR 20,000 in compensation bearing in mind a number of factors and held that the tenants could no longer rely on the impugned law (Articles 12 (2) and (7) of the Ordinance) to maintain title to the property. It considered that eviction was not necessary and that the applicants could continue to pursue the proceedings lodged under the newly enacted Article 12 B of the Ordinance (see below).

Despite domestic-case law to the contrary ( Ian Peter Ellis vs Maggur Cassar Reynaud Constitutional Court judgment of 27 January 2017) the court considered that for the applicants to claim compensation also for the period prior to the date when they inherited the property, the behaviour of their predecessor in title had to be examined. On the one hand, there was the situation of persons who had done their utmost to challenge the situation created by the law all throughout the relevant time. On the other hand, you had others who remained passive, either because of lethargy or because they were satisfied with the situation as stood. In the court’s view the present case fell in the latter category as their ancestors had never complained about the situation and the applicants could not benefit financially of the passivity of their predecessor in title. It thus considered that compensation was due from the date when the applicants inherited the property, that is 2015 in the case of the Grima family and 2004 in the case of the Parnis England family.

In the meantime, in 2018 proceedings were instituted before the RRB to increase the rent under the 2018 amendments. The case is still pending.

The case concerns a unilaterally imposed lease under Act XXIII of 1979 amending the Ordinance affecting the applicants’ property in Tarxien (which the first applicant inherited in 1987) as of 13 May 1984. At that time the annual rent payable was approximately EUR 134, in 1999 it increased to EUR 187, and in 2013 to EUR 259, which would increase every three years thereafter, amounting to EUR 264 in 2016.

Its market rental value according to the court-appointed expert in 1984 was EUR 1,330 and EUR 6,800 in 2018, totalling approximately EUR 88,000 over the period 1984–2018, while that received in rent was around EUR 8,000.

In 2019 the applicants (who are married) lodged constitutional redress proceeding complaining that the application of Article 12 of the Ordinance breached their and their ascendants’ property rights as of 1990 (sic.). They specified that their claims referred to the period until 31 December 2018, without prejudice to any further action they might undertake to challenge the 2018 amendments to the law introducing the new Article 12 B of the Ordinance.

By a judgment of 17 June 2020, the Civil Court (First Hall) in its constitutional competence found a violation of Article 1 of Protocol No. 1, as a result of the application of the law since 1987 date when the property was inherited, as their ancestors had not taken any steps to challenge the law, thus it could not be established that they were unhappy with the situation. It considered that the 2018 amendments relied on by the Government in their submissions, and which could possibly serve as a remedy preventing the continuation of the violation, fell outside the parameters of the case. It awarded EUR 15,000 in compensation. In this connection it considered that while it was true that the law did not provide for a time-limit within which to bring forward constitutional claims, the applicants who had inherited the property in 1987 had only lodged their complaint in 2019, thus, in the court’s view, that inaction had to be taken into consideration for the purposes of compensation. No costs were to be paid by the applicants.

None of the parties appealed.

In the meantime, in 2019 the applicants filed a case before the RRB requesting it to increase the rent up to 2 % of the sale market value (in the present case EUR 180,000) in line with the 2018 amendments. At the time of the introduction of the application the case before the RRB was adjourned to 24 November 2020. The applicants have not informed the Court of any further decisions.

The relevant domestic law is set out in Amato Gauci v. Malta (no. 47045/06, §§ 19-22, 15 September 2009).

According to the judgment in the names of Ian Peter Ellis vs Maggur Cassar Reynaud Constitutional Court judgment of 27 January 2017:

“In relation to the starting time of the violation upheld by the first-instance court, this Court considers that the starting point is not the date when the applicants inherited, originally partially and later in full, the property at issue, but 1990 date when the sub-emphyteusis contract came to an end. It was on that date that the applicant’s ascendants in title should have regained possession of the property but could not do so because of the legislative intervention at issue. It was at that point in time that a lease relationship was imposed between the owners and the tenants Couple C, and the fact that later the property was inherited is irrelevant for the purposes of the court’s assessment. This is so because, as they rightly argued, the claimants inherited the patrimony of their antecedent in title and therefore any losses suffered by the latter were also suffered by the former, who had inherited a smaller patrimony than that which they would have inherited had a unilaterally imposed lease not been put in place.”

COMPLAINTS

The applicants complain that they were still victims of the violation of Article 1 of Protocol No. 1 to the Convention upheld by the domestic court as a result of the low amount of compensation awarded and the failure to evict the tenants. For the same reasons they consider that they had no effective remedy under Article 13 in connection with their complaint under Article 1 of Protocol No. 1.

QUESTIONS TO THE PARTIES

1. Are the applicants still victims of the violation of Article 1 of Protocol No. 1 to the Convention upheld by the domestic court? In particular, bearing in mind that the domestic court only awarded compensation in respect of the period subsequent to the applicants’ having become owners of the property by way of inheritance, were they adequately redressed for the violation of their property rights upheld by the domestic court? The parties are invited to make reference to any relevant domestic law or case-law in their submissions.

2. Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 1 of Protocol No. 1 to the Convention, as required by Article 13 of the Convention?

APPENDIX

No.

Application

no.

Lodged on

Applicant name

date of birth

place of residence

Represented by

15217/20

13/03/2020

Francesca BONNICI

1947Sliema

Anthony VASSALLO

1955Sliema

Joseph VASSALLO

1949Sliema

Michael CAMILLERI

18057/20

22/04/2020

Doreen GRIMA

1965Marsascala

Nicholas PARNIS ENGLAND

1969San Pawl Tat-Tarġa

Stephen PARNIS ENGLAND

1963St. Julians

Robin PARNIS ENGLAND

1972Madliena

Johanna PETRESKI

1965Ta’ L-Ibraġġ

Joseph GRIMA

1962Pombroke

Georgina GRIMA

1938Valletta

Margaret PARNIS ENGLAND

1942Kappara

Michael CAMILLERI

52795/20

26/11/2020

Maria Fatima VASSALLO

1950Tarxien

John Edward VASSALLO

1946Tarxien

Michael CAMILLERI