SECOND SECTION

DECISION

Application no. 23107/20 Catherine TABONE and Carmela TABONE against Malta

The European Court of Human Rights (Second Section), sitting on 28 March 2023 as a Committee composed of:

Jovan Ilievski , President , Lorraine Schembri Orland, Diana Sârcu , judges , and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 23107/20) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 11 June 2020 by two Maltese nationals, Ms Catherine Tabone and Ms Carmela Tabone (who being interdicted was represented by Ms Catherine Tabone as her curator), born in 1982 and 1917 respectively and living in Zejtun (“the applicants”), who were represented by Dr D. Camilleri and Dr J. Gatt, lawyers practising in Valletta;

the death of Ms Carmela Tabone after the institution of the proceedings and the wish of her heir, Ms Itala Concetta Tabone, to pursue the proceedings in her stead;

the decision to give notice of the application to the Maltese Government (“the Government”), represented by their Agents, Dr C. Soler, State Advocate, and Dr J. Vella, Advocate at the Office of the State Advocate;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns an imposed residential lease under Chapter 69 of the Laws of Malta affecting the applicants’ house in Żejtun. The property had been rented out in 1995 for a period of ten years, after which the tenants relied on the law to maintain title to the property. At the time the rent was 286 euros (EUR) per year. The tenants paid a total of EUR 3,603 from March 2005 ‑ 2019. They have made substantial works to the property including the bathroom, water services to the kitchen, renewal of electricity and roofs. As of June 2011 the first applicant has had the bare ownership of a quarter of the property at issue (the usufruct of which vests with her mother Itala Concetta Tabone). The second applicant has full ownership of the remaining three quarters of the property.

2. In 2018 the applicants instituted constitutional redress proceedings. According to the Government’s expert the property had an annual rental value of EUR 1,300 in 2005, and EUR 3,355 in 2018 (the sale value was EUR 60,000 and EUR 155,000 respectively). According to the applicant’s expert the property had an annual rental value of EUR 4,000 in 2005 and EUR 6,270 in 2018, and a sale value of EUR 228,000 in 2018.

3. By a judgment of 28 May 2019, the Civil Court (First Hall) in its constitutional competence found a violation of Article 1 of Protocol No. 1 to the Convention. It awarded EUR 10,000 in compensation and, based on the applicants’ request to this effect, ordered that the tenants could no longer rely on the relevant law to maintain title to the property.

4. All the parties appealed, the applicants only in relation to compensation. By a judgment of 27 March 2020 the Constitutional Court confirmed the violation and the order that the tenants could no longer rely on the law, but varied the compensation award. It considered that no compensation was due to the first applicant who only had the bare ownership of a quarter of the property and thus did not perceive any rent. In relation to the second applicant, it increased the compensation to EUR 12,750, plus 5% interest as of the date of judgment. Having examined in detail the two expert reports submitted, it considered that the applicants’ expert’s valuations were not realistic, and that the property could not have been rented out at those values. Thus, for the fourteen years at issue, compensation (including non ‑ pecuniary damage) for the entirety of the property should be EUR 17,000 (three quarters of which representing the second applicant’s share).

5. Relying on Article 1 of Protocol No. 1 to the Convention the first applicant complained that no compensation had been granted to her, and the second applicant that too little compensation had been granted to her. Thus, given the compensation awarded and the fact that the tenants had not been evicted, they considered that they were still victims of the violation upheld by the domestic courts.

THE COURT’S ASSESSMENT

6. The second applicant, Ms Carmela Tabone, died after the institution of the proceedings before the Court and her sister-in-law and universal heir, Ms Itala Concetta Tabone, expressed her wish to pursue the proceedings in her stead. The Government did not object. The Court accepts that the latter has a legitimate interest in pursuing the application in the late second applicant’s stead (see, among other authorities, López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, §§ 72-73, 17 October 2019, and Maksymenko and Gerasymenko v. Ukraine , no. 49317/07, § 39, 16 May 2013). It will however continue to refer to Ms Carmela Tabone as the second applicant.

7. In so far as, in the submissions, Ms Itala Concetta Tabone also appears to express a wish to join these proceedings in her own name and to complain in respect of the quarter of the property in respect of which she has the usufruct, the Court notes that Ms Itala Concetta Tabone was not a party to these proceedings when the application was introduced and later communicated to the Government, and her locus standi now is only in relation to the share she inherited from the late Ms Carmela Tabone. It follows that her late complaint is not part of the scope of the case before this Court, and it is thus unnecessary to examine the Government’s objection of non ‑ exhaustion of domestic remedies in this respect.

8. The applicants complained that they remained victims of the upheld violation of Article 1 of Protocol No. 1 to the Convention due to the failure to evict the tenants and the low amount of compensation awarded, highlighting the rental values established in their expert report. In particular, the first applicant seems to complain that she had to be awarded compensation despite the fact that she was a bare owner, and that she should have been awarded compensation as curator of the second applicant.

9. The Court refers to its general principles concerning victim status and its established case ‑ law in cases similar to the present one (see, among many other authorities, Apap Bologna v. Malta , no. 46931/12, §§ 41, 43, 48 and 82, 30 August 2016).

10. The Court observes that the Constitutional Court has acknowledged the violation of Article 1 of Protocol No. 1 and awarded EUR 12,750 in compensation to the second applicant who had full ownership of three quarters of the property, and no compensation to the first applicant who incurred no losses as bare owner of a quarter of the property.

11. Firstly, the Court considers reasonable the Constitutional Court’s assessment in relation to the expert reports presented, and is of the view that the award made is sufficiently similar to what the Court would have awarded in pecuniary and non ‑ pecuniary damage, and thus, that an adequate amount of compensation was awarded to Ms Carmela Tabone (compare Bartolo Parnis and Others v. Malta (dec.), nos. 49378/18 and 3 others, § 48, 24 March 2020) in respect of her share of the property for the violation until the date of that judgment.

12. Secondly, as to the applicant Ms Catherine Tabone, the Court accepts that, as bare owner of a quarter of the property as of 2011, in line with domestic law, she incurred no losses. Indeed, any pecuniary losses had only been incurred by her mother, the usufructuary who is entitled to the fruits of the property (Article 332 of the Maltese Civil Code), but who was not a party to the domestic proceedings. Furthermore, the Court observes that the first applicant has not argued that, as sole universal heir of her father who had full ownership of a quarter of the property, she was entitled to recover the dues owed to him prior to his demise; the Court will therefore not enter into the matter. Lastly, the Court notes that Ms Catherine Tabone has no right to claim compensation as curator of Ms Carmela Tabone, the latter being the only person entitled to compensation over her share of full ownership of three quarters of the property. In such specific circumstances the Court also accepts that the finding of a violation constituted sufficient just satisfaction in respect of Ms Catherine Tabone.

13 . It follows from the above that the Constitutional Court provided adequate redress for the violation that had already occurred, it remains to be determined whether the violation was brought to an end.

14. The Court observes that the Constitutional Court had not ordered the eviction of the tenants or alternatively put in place a higher future rent (see Cauchi v. Malta , no. 14013/19, § 30, 25 March 2021). It however made a declaration to the effect that the tenants may no longer rely on the impugned law to maintain title to the property. The Court has previously aired its reservations about this approach (ibid., § 31; see also, inter alia , Portanier v. Malta , no. 55747/16, §§ 49-54, 27 August 2019, and Marshall and Others v. Malta , no. 79177/16, § 73, 11 February 2020). In Cauchi (cited above, § 31) in the context of imposed leases under Chapter 158, the Court clearly stated that such a declaration had not had any effect in bringing the violation to an end. However, unlike in Cauchi , cited above, and Galea v. Malta (no. 28712/19, § 27, 7 October 2021) where an action for eviction based on such a declaration was impeded by Article 12B (11) of Chapter 158 introduced via the 2018 amendments, the lease in the present case was governed by Chapter 69 of the Laws of Malta. Thus, at the time, an eviction based on such a declaration was not impeded by any provision of law and could have led to some favourable results, whether by means of eviction or an amicable agreement (see, for example, Grima v. Malta [Committee] no. 38660/20, §§ 2 and 3, 22 September 2022; Apap Bologna v. Malta [Committee] no. 47505/19, §§ 18 and 20, 9 December 2021; and Ellis and Scilio v. Malta , [Committee] no. 165/17, § 13, 30 June 2020).

15. The Court notes that it has not been informed that eviction proceedings were undertaken and if so that they have been concluded. Nor has the Court been informed that the tenants have voluntarily vacated the property since they now (as a result of the Constitutional Court judgment) no longer have title to it (in the absence of the relevant protection of law), or that a new rental agreement has been put in place. It follows that the status quo is that which existed on the date of the Constitutional Court judgment, around three years ago (see, mutatis mutandis , Marshall and Others , cited above, § 74).

16. The Government blamed this on the applicants’ inaction, noting that they should have instituted eviction proceedings which in the light of Article 16A of Chapter 69 of the Laws of Malta (as amended in 2019 providing a summary procedure and short time-limits), would have brought about a speedy resolution of their case. The applicants were of the view that no order to the effect that the tenants could no longer rely on the impugned law to maintain title to the property had been made by the domestic courts. The Court observes that the first-instance court had clearly made such an order. The tenants appealed against such order and the Constitutional Court rejected their appeal, the first-instance order, thus, becoming final. The Court further observes that there is no indication that the procedure under the new Article 16A in such circumstances would not be speedy, thus providing an improvement to the situation pertaining at the relevant time (post June 2016) in Marshall , cited above. The Court will therefore not speculate otherwise.

17. In these circumstances, and given that the case concerns a residential lease under Chapter 69 of the Laws of Malta (as opposed to a commercial lease such as in Marshall , cited above, or other cases concerning residential leases but under Chapter 158 of the Laws of Malta, which were or could have been affected by the 2018 amendments, such as Cauchi and Galea , both cited above, and Bartolo Parnis and Others v. Malta , nos. 49378/18 and 3 others, §§ 47-48, 7 October 2021), as well as the fact that the applicants explicitly requested such an order, but then did not act on it, despite amendments to Article 16A in 2019, the Court considers that they remain affected by the impugned law only as a result of their inaction. In these specific circumstances the Court considers that the applicants have lost their victim status in relation to their complaint under Article 1 of Protocol No. 1 to the Convention and the Government’s objection is upheld.

18. The complaint is therefore incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be declared inadmissible in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 April 2023.

Dorothee von Arnim Jovan Ilievski Deputy Registrar President