SECOND SECTION

CASE OF BONNICI AND OTHERS v. MALTA

(Application no. 15217/20)

JUDGMENT

STRASBOURG

14 November 2023

This judgment is final but it may be subject to editorial revision.

In the case of Bonnici and Others v. Malta,

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

Frédéric Krenc , President , Diana Sârcu, Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 15217/20) 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 13 March 2020 by three Maltese nationals, relevant details listed in the appended table (“the applicants”), who were represented by Dr M. Camilleri and Dr K. Micallef, lawyers practising in Valletta;

the decision to give notice of the complaints concerning Article 1 of Protocol No. 1 of the Convention alone, and in conjunction with Article 13 of the Convention, in relation to the effects of Act XXIII of 1979, 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, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 17 October 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. 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 Gżira as of 25 February 2001. The three applicants inherited the property in 2007 from their aunt, under a title of legacy, while the applicant Francesca Bonnici was designated as the universal heir of her aunt. 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. It would appear that, at a later stage, he paid up all his dues.

2. The applicants lodged constitutional redress proceedings complaining that they had suffered a breach of their property rights and limited their claims to the end of 2017. 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.

3. 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 conduct 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, there were others who remained passive, either because of lethargy or because they were satisfied with the situation as it 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.

4. 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.

5. The applicants complained under Article 1 of Protocol No. 1 to the Convention alone and in conjunction with Article 13 that they were still victims of the violation upheld by the domestic court as a result of the low amount of compensation awarded and the failure to evict the tenants.

THE COURT’S ASSESSMENT

6. The applicants complained that they remained victims of the violation of Article 1 of Protocol No.1 to the Convention upheld by the domestic court.

7. 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). The Court observes that the domestic court has acknowledged the violation and awarded EUR 15,000 in compensation covering pecuniary and non-pecuniary damage, having considered that the applicants were only due compensation as of 2007 when they inherited the property.

8. In this connection, the Court observes that, as admitted by the Government, the Civil Court (First Hall)’s jurisprudence was not uniform on this point and that the Constitutional Court had taken a more consistent approach. The latter considered that in those circumstances where the plaintiffs were the universal heirs of their predecessors (and therefore had stepped into the shoes of the deceased, inheriting all rights and obligations of that person), they should be awarded compensation also in respect of the period during which the property was held by their predecessors in title. The Court observes that the matter pertains to the sphere of domestic law, in particular its civil provisions, and their pertinence in the context of the particular human rights framework pertaining to Malta, where human rights claims are not subject to prescription. The matter having been determined by the Constitutional Court and consistently applied, there is no reason for this Court to take a different approach (see Vassallo v. Malta [Committee], no. 52795/20, § 10, 12 September 2023). Thus, the award made should have reflected the entire period during which the property had been affected by the impugned law in so far as at least one of the applicants who was the universal heir of her deceased aunt, constituted herself as a claimant in the proceedings.

9 . The parties are in dispute as to whether a legatee would also be entitled to claim for such period, the Government ultimately erroneously conceding that the point was irrelevant since all the applicants were “universal heirs”. The Court considers that in these circumstances it does not need to determine this legal point, since it has already been established that no award was made for the antecedent period despite the universal heir being a claimant before the domestic court. Moreover, bearing in mind that the property had a rental value of, for example, EUR 6,800 in 2017, the Court considers that the compensation awarded for the violation – even concerning only the period post 2007, i.e. a decade – was not adequate. These considerations suffice to find that the redress provided by the domestic court did not offer sufficient relief to all three applicants, who thus retain victim status for the purposes of this complaint (see, mutatis mutandis , Portanier v. Malta , no. 55747/16, § 24, 27 August 2019). The Government’s objection to this effect is therefore dismissed.

10 . The Court also dismisses the Government’s objection of non ‑ exhaustion of domestic remedies (in so far as the applicants had not appealed to the Constitutional Court). The Court has already made relevant considerations related to the Constitutional Court’s effectiveness for the period until 2018 in Cauchi v. Malta (no. 14013/19, §§ 55 and 77, 25 March 2021) and for the period until 2019 in Pace v. Malta ([Committee], no. 53545/19, § 9, 29 September 2022) and Grima and Others v. Malta ([Committee], no. 18052/20, § 8, 7 March 2023). In the latter cases it concluded that the Constitutional Court could not be considered an effective remedy which the applicants were required to undertake in 2019. There is no reason to hold otherwise in the present case.

11. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

12. As to the merits, the Court refers to its general principles as set out, for example, in Amato Gauci v. Malta (no. 47045/06, §§ 52-59, 15 September 2009).

13. Having regard to the findings of the domestic court relating to Article 1 of Protocol No. 1, the Court considers that it is not necessary to re ‑ examine in detail the merits of the complaint. It finds that, as established by the domestic court, the applicants were made to bear a disproportionate burden. Moreover, as the Court has already found in the context of the objection on victim status (see paragraph 9 above), the redress provided by the domestic court did not offer sufficient relief to the applicants.

14. The foregoing considerations are sufficient for the Court to find that there has been a violation of Article 1 of Protocol No. 1 to the Convention.

15. The applicants also complained under Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1 that they had not had an effective remedy capable of redressing the violation under Article 1 of Protocol No. 1. This complaint is covered by the well ‑ established case-law of the Court. It is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. Accordingly, it must be declared admissible. Having examined all the material before it and noting that in the circumstances of the present case the applicants remained victims of the violation complained of (see paragraph 9 above) and that the Government’s submissions in relation to the effectiveness of the Constitutional Court have been rejected (see paragraph 10 above), the Court concludes that it discloses a violation of Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1 in the light of its findings in, for example, Apap Bologna (cited above, §§ 89-91) and Portanier (cited above, §§ 55-56).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

16. The applicants claimed 24,805.71 euros (EUR) as pecuniary damage for rental losses from 2001 up to 2020 based on the court-appointed expert’s valuation and in accordance with their own calculations which they considered were based on the principles of Cauchi v. Malta (no. 14013/19, §§ 55 and 77, 25 March 2021) and EUR 8,000 in non-pecuniary damage.

17. The Government submitted that there had been no explanation as to the applicants’ calculation in respect of pecuniary damage which according to the Government was not in line with Cauchi (cited above). Additionally, they submitted that other relevant factors were to be taken into account (see, for details, Debono and Dimech v. Malta [Committee], no. 17094/21, § 18, 18 April 2023). The Government also noted that the applicants had limited their claims at the domestic level until 2017, thus no dues could be awarded for the subsequent period. The Government also considered that the claim for non-pecuniary damage was excessive.

18. The Court has made all the considerations applicable in this type of cases, as set out in Cauchi (cited above, §§ 102-07). Noting in particular that the award of the domestic court remains payable if not yet paid, and that the applicants are due pecuniary damage solely for the period until 2017, the Court awards the applicants, jointly, EUR 12,000 in pecuniary damage and EUR 5,000, plus any tax that may be chargeable on that amount, in non ‑ pecuniary damage.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicants, jointly, within three months, the following amounts:

(i) EUR 12,000 (twelve thousand euros) in respect of pecuniary damage;

(ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable on that amount, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 14 November 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Dorothee von Arnim Frédéric Krenc Deputy Registrar President

APPENDIX

List of applicants:

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

1.Francesca BONNICI

1947Maltese

Sliema

2.Anthony VASSALLO

1955Maltese

Sliema

3.Joseph VASSALLO

1949Maltese

Sliema