SECOND SECTION

CASE OF GRIMA AND OTHERS v. MALTA

(Application no. 18057/20)

JUDGMENT

STRASBOURG

14 November 2023

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

In the case of Grima 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. 18057/20) 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 22 April 2020 by eight Maltese nationals, relevant details listed in the appended table (“the applicants”), who were represented by Dr M. Camilleri, a lawyer practising in Valletta;

the decision to give notice of the complaints concerning Article 1 of Protocol No. 1 to 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 applicants (who are members of the Grima and Parnis England families) co-own the property at no. 35 Dingli street, Sliema. By means of Act XXIII of 1979 amending Chapter 158 of the Laws of Malta (hereinafter ‘the Ordinance’), 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 466 euros (EUR) annually, which increased to EUR 685 in 1994, to EUR 741 in 2009, to EUR 803 in 2013 and to EUR 819 in 2016.

2. The predecessor in title of the applicants belonging to the Grima family acquired a half undivided share of the property in 1982, aware that it was occupied under title of temporary emphyteusis since 1960 for a period of seventeen years, renewable once. That share belonged to him and his wife (the applicant Georgina Grima), and his share was then inherited ab intestato by the three applicants of this family (namely Doreen, Georgina and Joseph Grima) in 2015, in different shares, so that today the applicant Georgina Grima owns three-eighths of the undivided share of the entire property and the siblings own jointly one-eighth of the undivided share of the entire property. The bare ownership of the other half undivided share is vested in the siblings of the Parnis England family (the applicants Nicholas, Robin and Stephen Parnis England and Johanna Petreski) as of 2004, as universal heirs of their father, while their mother, the applicant Margaret Parnis England, has the usufruct over the property as of her husband’s demise in 2004.

3. In 2019 the applicants lodged constitutional redress proceedings complaining that they had suffered a breach of their property rights and requesting compensation for the period from 1977 to 2017. 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, and in 2017 EUR 7,268.

4. By a judgment of 21 October 2019, the Civil Court (First Hall), in its constitutional competence, inter alia , found a violation of Article 1 of Protocol No. 1 to the Convention and awarded EUR 20,000 in compensation. Despite domestic ‑ case law to the contrary ( Ian Peter Ellis vs Maggur Cassar Reynaud , Constitutional Court judgment of 27 January 2017), in the court’s view the applicants’ 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.

5. The applicants complained under Article 1 of Protocol No. 1 to the Convention alone and in conjunction with Article 13 of the Convention 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 20,000 in compensation covering pecuniary and non-pecuniary damage, having considered that the applicants were only due compensation as of 2015 in the case of the Grima family and 2004 in the case of the Parnis England family.

8. In so far as the domestic court considered that the applicants were only due compensation for the period after which the property had been inherited 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 the universal heirs constituted themselves as claimants in the proceedings.

9. The Court notes that neither the Government nor the domestic court have distinguished the status of the applicants as universal heirs, original owners, bare owners or usufructuaries, nor their relevant shares. For example, as regards the siblings of the Parnis England family they, as universal heirs, were entitled to claim compensation due to their deceased father for the period 1994 to 2004, but not thereafter, since they only had bare ownership of the property as of 2004. Thus, as of 2004 they incurred no losses, the fruits (i.e. the rent) of such property being solely due to the usufructuary (see Tabone v. Malta (dec.) [Committee], no. 23107/20, § 12, 28 March 2023), their mother, the applicant Margaret Parnis England. Similarly, for example, Ms Georgina Grima was the owner of half of the undivided half share of the property as of 1982, a matter overlooked by the domestic court. However, given the absence of any relevant considerations being made at the domestic level or before this Court, and the Court being unaware of how the domestic award was shared among the applicants, the Court cannot but consider the applicants’ victim status globally, and therefore whether the total amount awarded covered the relevant period.

10. Furthermore, other considerations come into play in the present case for the determination of the relevant period. While the applicants claimed that the original contract of 1960, extendable by two periods of seventeen years, came to an end in 1977 and was not renewed, from the evidence submitted to the domestic court, the latter was of the view that both the tenants and the owners had considered that the original term had been renewed, and thus that the original contract came to an end in 1994. Indeed, the evidence before this Court also shows that when the ancestor of the siblings of the Grima family purchased the property in 1982 from the ancestor of the siblings of the Parnis England family, the sale contract noted that the property was occupied under title of temporary emphyteusis, with reference to the renewable period until 1994, and not an indefinite lease (under Act XXIII of 1979). Furthermore, the Court observes that the rent remained the same until 29 March 1994, date of the expiry of the contract entered into, and increased immediately thereafter. Thus, the Court considers that the impugned law affected the property only after 29 March 1994, date of the expiry of the contract entered into.

11 . The Court observes that the property had a rental value of, for example, EUR 7,268 in 2017, thus the Court considers that the compensation awarded for a violation persisting over decades (1994-2017) was not adequate. This consideration suffices to find that the redress provided by the domestic court did not offer sufficient relief to the 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.

12 . 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. There is no reason to hold otherwise in the present case.

13. 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.

14. 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).

15. 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 11 above), the redress provided by the domestic court did not offer sufficient relief to the applicants.

16. 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.

17. 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 11 above) and that the Government’s submissions in relation to the effectiveness of the Constitutional Court have been rejected (see paragraph 12 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

18. The applicants claimed 50,693.56 euros (EUR) as pecuniary damage for rental losses from 1979 up to 2022 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 (cited above) and EUR 15,000 in non-pecuniary damage.

19. 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.

20. 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 for the period from 1994 to 2017 at issue in the present case, the Court awards the applicants, jointly, EUR 30,000 in pecuniary damage and EUR 5,000, plus any tax that may be chargeable on that amount, for 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 30,000 (thirty thousand euros) in respect of pecuniary damage;

(ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, 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.Doreen GRIMA

1965Maltese

Marsascala

2.Georgina GRIMA

1938Maltese

Valletta

3.Joseph GRIMA

1962Maltese

Pembroke

4.Margaret PARNIS ENGLAND

1942Maltese

Kappara

5.Nicholas PARNIS ENGLAND

1969Maltese

San Pawl

Tat-Tarġa

6.Robin PARNIS ENGLAND

1972Maltese

Madliena

7.Stephen PARNIS ENGLAND

1963Maltese

St Julians

8.Johanna PETRESKI

1965Maltese

Ta’ L-Ibraġġ