The case concerns the requisition of the applicants’ property and the disproportionality of the rent received by the applicants under Article 1 of Protocol No. 1, as well as the effectiveness of the Constitutional Court as a remedy for the purposes of Article 13 in connection with the former complaint.
CASE OF MATTEI AND OTHERS v. MALTA
(Application no. 14615/19)
17 June 2021
This judgment is final but it may be subject to editorial revision.
In the case of Mattei and Others v. Malta,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Krzysztof Wojtyczek, President,
Lorraine Schembri Orland, judges,
and Attila Teplán, Acting Deputy Section Registrar,
Having regard to:
the application (no. 14615/19) 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”) by eight Maltese nationals, whose details are indicated in the appended table;
the decision to give notice to the Maltese Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 25 May 2021,
Delivers the following judgment, which was adopted on that date:
1. The case concerns the requisition of the applicants’ property and the disproportionality of the rent received by the applicants under Article 1 of Protocol No. 1, as well as the effectiveness of the Constitutional Court as a remedy for the purposes of Article 13 in connection with the former complaint.
2. The applicants were born between 1939 and 1945 and live in different cities in Malta (see Appendix). The applicants were represented by Dr S. Grech and Dr I. Refalo, lawyers practising in Valletta.
3. The Government were represented by their Agent, Dr V. Buttigieg, State Advocate, and subsequently by their Agent Dr A. Buhagiar, Acting State Advocate.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
I. Background to the case
5. The applicants are owners of a property, No. 125 Lapsi Street, St. Julian’s, consisting of a corner house with a garden which was requisitioned in 1970, in line with the provisions of the Housing Act, Chapter 125 of the Laws of Malta, at a time when it was not in a good state.
6. Following work to make it habitable, which had not been carried out by the applicants but by the authority and eventually the tenants, on 7 July 1981 it was allocated to couple C. The applicants refused to recognise the tenants and never accepted rent from them.
7. On an unspecified date before 2015 Mr C. died and the property continued to be occupied by his wife and his son, who was dependent on the mother for medical reasons.
8. The rent due in 2015 was 185 euros (EUR) annually, in line with the adjustments provided by Act X of 2009. Prior to that, it was less.
II. Constitutional redress proceedings
9. In 2015 the applicants instituted constitutional redress proceedings, against the Attorney General and the Housing Authority, requesting the court to find that the requisition order had breached their rights under Article 1 of Protocol No. 1 to the Convention. Consequently, they sought to annul the order and asked the court to make an award of compensation for the violation suffered including the rent for the occupation of the premises, as well as any other relevant redress.
10. By a judgment of 16 January 2018, the first-instance court, upheld an objection that the Attorney General was not the right defendant. On the merits it found a violation of Article 1 of Protocol No. 1 and ordered the eviction of the tenants, and the Housing Authority to find alternative accommodation for them. It also ordered the Housing Authority to pay EUR 800 monthly in rent to the applicants until the eviction took place.
11. In particular the court considered that a request for judicial review was not an appropriate remedy given that the requisition had been lawful, and the decision to requisition the property had not been ultra vires, nor had it been taken against any principle of natural justice. It further considered that the interference was lawful and pursued a legitimate aim, as it had not been shown that couple C. was not in need of the property. However, the applicable rent was EUR 185 annually for a property which was valued by a court-appointed expert at EUR 13,200 annually (in 2018), that is, EUR 15.42 monthly instead of EUR 1,100 monthly (according to the court‑appointed architect) or EUR 600-700 (according to the Government’s expert). The applicants were thus suffering a disproportionate burden.
12. It considered that compensation was due as of 30 April 1987 [date when Malta introduced the right of individual petition] until the date of judgment and was to be calculated on the basis of the estimate of the court‑appointed architect. According to the court-appointed architect the annual rental value in 1970 was EUR 600, in 1975 EUR 660, in 1980 EUR 765, in 1985 EUR 900, in 1990 EUR 1,200, in 1995 EUR 1,500, in 2000 EUR 3,150, in 2005 EUR 4,725, in 2010 EUR 8,000 and in 2015, EUR 12,500. It followed that from 1987 to 2018 the applicants had to receive EUR 124,475. However, that amount had to be diminished in the light of the public interest at play. The court awarded EUR 100,000 in pecuniary damage reflecting loss of rent. It further awarded EUR 500 for every year, over the thirty-year period during which they suffered the violation, that is, EUR 15,000 in non-pecuniary damage. All the costs, except for those (of EUR 1,655) of the Attorney General (who had been wrongly sued and thus those costs were attributed to the applicants), were to be paid by the defendant.
13. Having considered Mrs C. and her son as vulnerable individuals, the former being an elderly woman dependant on a widow’s pension and the latter having medical needs, it considered that they were still worthy of protection, and thus they were to be given alternative accommodation by the State within a year – time during which the authorities were to pay the applicants an adequate rent of EUR 800 monthly.
14. The Housing Authority appealed.
15. By a judgment of 5 October 2018 the Constitutional Court confirmed the first-instance judgment on the merits but varied the redress. It confirmed the annulment of the requisition order and held that the tenants could no longer rely on the title given to them by virtue of the allocation of the property to them pursuant to the requisition order; it awarded EUR 40,000 in compensation, and revoked any other order given by the first-instance court.
16. In particular, the Constitutional Court considered that given the legitimate aim behind the measure, as well as the fact that the property had been rendered habitable by the authorities and the tenants, the pecuniary damage awarded was excessive. Moreover, that court had not had the competence to fix a future rent, which fell solely within the competence of the legislature. It revoked the order for eviction, considering that although the constitutional jurisdictions could give any appropriate remedy, including an order for eviction if necessary, it did not mean that rules concerning procedure and competence were to be ignored – a matter which could create uncertainty and arbitrariness. It was not for the courts of constitutional competence to decide on questions of title to property, their role being limited to deciding on possible breaches of human rights and awarding redress which would bring the violation to an end. It followed that in the present case the court could only decide that the tenants could no longer rely on their title to the property pursuant to its allocation to them following the requisition order. This would allow the tenants the possibility of a fair hearing where they would be able to submit evidence concerning any other title they might have to retain the property, without prejudice to any claim for damage that the applicants might have if the tenants continued to maintain the property without title following this judgment. Similarly, it was not for the court to interfere with allocation of housing and order that alternative accommodation be found for the applicants.
17. In arriving at the award of compensation the Constitutional Court took account of the following: the discrepancy in the rent payable vis-à-vis the rent on the open market; that the violation persisted since 1987; that the expert valuations were only indicative of losses; that the value of the property increased as a result of the rehabilitation undertaken by the authority; the legitimate aim at issue; the uncertainty faced by the applicants as to whether they would ever recover their property; the opportunity of the applicants to regain possession of their property now that an order was being made depriving the tenants of their title under the requisition order; the compensation given in similar cases; the expenses incurred by the applicants in pursuing these proceedings; and the fact that the award should cover both pecuniary and non-pecuniary damage.
18. The applicants were ordered to pay half the costs of the appeal proceedings.
III. Subsequent events
19. On 13 August 2018 part of the roof of the property collapsed causing damage to the rest of the property as well as adjacent property. According to the applicants’ architect, the damage had been due in part to the development being undertaken in the adjacent property, but the majority of the damage had been due to a lack of maintenance over the years. In that light, the applicants filed a judicial letter against the tenants and the Housing Authority requesting the vacation of the property. At the date of the introduction of the application no response had been received and the tenants were still occupying the premises.
20. According to the tenant’s testimony, during the below-mentioned proceedings, an architect’s report undertaken prior to the development of adjacent property had found that the property at issue was well maintained. According to the testimony, once that development had taken place, structural damage was caused to the property. As a result, criminal proceedings ensued which found the developer guilty of causing the damage as a result of negligence. The tenants instituted civil proceedings against the developer for civil damage.
21. In June 2019 the applicants instituted eviction proceedings which were (at the time of observations – September 2020) still pending. Mrs C. died in July 2019 and those proceedings were being continued by her son, who was resisting the eviction, despite the Constitutional Court judgment and the fact that the property was in a dangerous state following its partial collapse.
RELEVANT LEGAL FRAMEWORK
22. The relevant domestic law is set out in Apap Bologna v. Malta (no. 46931/12, §§ 24-30, 30 August 2016).
I. ALLEGED VIOLATION OF ARTICLE 1 of PROTOCOL No. 1 to THE CONVENTION
23. The applicants complained that they were still victims of a violation of Article 1 of Protocol No. 1 upheld by the Constitutional Court given the low amount of compensation awarded. The provision reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
1. The parties’ submissions
24. The Government submitted that the applicants had lost their victim status following the Constitutional Court’s finding which had acknowledged the violation and awarded EUR 40,000 in compensation as well as ordered that the tenants could no longer rely on the requisition order to retain title to the property.
25. In their second round of observations, the Government noted that the applicants had neither appealed, nor cross-appealed the first-instance court’s decision to consider only the period 1987 onwards, it followed that any claim in that respect had to be rejected as being inadmissible for non‑exhaustion.
26. Relying on the Court’s case law, the applicants maintained that they remained victims of the violation upheld by the Constitutional Court given that the total compensation granted had been too low compared to the damage actually suffered. They noted that the rental value of the property according to the court-appointed expert was EUR 13,200 annually, while they had only been awarded EUR 40,000 for a violation which persisted over decades and continued to do so since the Constitutional Court had not evicted the tenants. As a result, the applicants were still facing legal proceedings to evict the tenants and bring the violation to an end. Furthermore, the domestic courts had not taken cognisance of the period prior to 1987, despite the Convention being applicable to Malta as of 1967.
2. The Court’s assessment
27. As the Government’s objection concerning non-exhaustion of domestic remedies in relation to the period prior to 1987, the Court reiterates that the normal practice of the Convention organs has been, where a case has been communicated to the respondent Government, not to declare the application inadmissible for failure to exhaust domestic remedies, unless this matter has been raised by the Government in their observations (see, for example, Dobrev v. Bulgaria, no. 55389/00, § 113, 10 August 2006; and Y v. Latvia, no. 61183/08, § 40, 21 October 2014, and the case-law cited therein). Under Rule 55 of the Rules of Court, any plea of inadmissibility must have been raised by the respondent Contracting Party − in so far as the nature of the objection and the circumstances so allowed − in its written or oral observations on the admissibility of the application (see N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X; Markus v. Latvia, no. 17483/10, § 50, 11 June 2020; and Skudayeva v. Russia, no. 24014/07, § 27, 5 March 2019) and failure to do so will lead the Court to find that the Government are estopped from raising the objection (ibid.).
28. The Court notes that in their complaint, as set out in their application, the applicants clearly considered that they had suffered a violation for a period of fifty years, that is, as of 1970 when their property was requisitioned. It follows that the scope of their complaint was already clear at that stage, that is, before their filing of their observations in reply to the Government’s objection on victim status. Thus, the Court cannot discern any exceptional circumstances which could have released the Government from the obligation to raise such a plea in their observations on the admissibility and merits (see, mutatis mutandis, Khlaifia and Others v. Italy [GC], no. 16483/12, § 53, 15 December 2016). It follows that the Government are estopped from raising this objection.
29. As to the Government’s objection concerning victim status, the Court reiterates its general principles on the matter as set out in Apap Bologna v. Malta (no. 46931/12, §§ 41 and 43, 30 August 2016). In the present case, the Court notes firstly that there had been an acknowledgment of a violation by the domestic courts, but only in relation to the period subsequent to 1987 (compare, Azzopardi v. Malta, no. 28177/12, § 32, 6 November 2014). Secondly, as to whether appropriate and sufficient redress had been granted, for the period after 1987, the Court considers that even though the market value is not applicable and the rent valuations may be decreased due to the legitimate aim at issue, a global award of EUR 40,000, covering pecuniary and non-pecuniary damage, from which part costs were to be deducted, for a property worth, in 2018, in the region of EUR 13,200 in annual rent, can hardly be considered sufficient for a violation which persisted for various decades. That is enough to find that the redress provided by the Constitutional 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).
30. The Court notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
1. The parties’ submissions
31. The applicants considered that they had suffered a violation since no fair balance had been struck between their interests and any legitimate aim. They considered that, as held by the constitutional jurisdictions, the applicants had been made to suffer a disproportionate burden due to the low amount of rent received. This was so even assuming that the tenants had carried out any works or maintenance ‑ an allegation they considered was entirely unsubstantiated and unlikely, given the low income of the tenants as confirmed in their testimony. Moreover, the applicants considered that this burden had been suffered as of 1970 when the property had been requisitioned.
32. The Government admitted that there had been a violation but reiterated that the Constitutional Court had brought it to an end. In this connection they highlighted that the tenants had spent around EUR 16,000 to bring the place up to scratch and that throughout their tenancy they had spent around EUR 3,000 per year in maintenance, without which the property would have not had the estimated value. Thus, the amount of EUR 40,000, which had been awarded by the Constitutional Court after considering numerous factors, had been appropriate.
2. The Court’s assessment
33. Having regard to the findings of the domestic courts relating to Article 1 of Protocol No. 1, for the period subsequent to 1987, 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 courts, the applicants were made to bear a disproportionate burden.
34. As to the period prior to 1987, the Court refers to its general principles and their application in such cases, as set out in, for example, Ghigo v. Malta (no. 31122/05, § 48-70, 26 September 2006). It is not in dispute that the measure was lawful. However, the Court notes, firstly, that the property was requisitioned in 1970 but only allocated to couple C. in 1981 (see paragraph 6 above). While it appears that the State had undertaken rehabilitation works during that time to allow the property to be inhabited and used for social housing purposes, eleven years to undertake the necessary works appears prima facie excessive. In consequence the Court is not convinced that a legitimate aim can be said to have existed throughout that entire period.
35. As to the proportionality of the measure, the parties have not referred to the exact rent that was payable at the time, although it transpires from the case‑file that it was less than EUR 185 per year. According to the court-appointed expert, the annual rental value in 1970 was EUR 600, in 1975 EUR 660, in 1980 EUR 765, in 1985 EUR 900 (see paragraph 12 above). The Court considers that, even assuming those estimates were realistic for those earlier years, and bearing in mind that the property had been rehabilitated by the authorities prior to it being assigned to couple C., the disproportionality at the time was certainly less evident than that which occurred in the later years (compare, mutatis mutandis, Cassar v. Malta, no. 50570/13, §§ 57-59, 30 January 2018). Nevertheless, during the relevant period the applicants were due rent of less than EUR 16 per month. The Court thus considers that in view of the restrictions on the landlords’ rights (see Ghigo, cited above, § 64), the doubtful legitimate aim for the initial years, the low amount of rent due over the relevant period and the duration of the requisition order, the applicants suffered a disproportionate burden even during the period 1970-1987.
36. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention over the entire period complained of.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
37. The applicants complained that constitutional redress proceedings were not an effective remedy in relation to their complaint under Article 1 of Protocol No. 1, as required by Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
38. The Government submitted that the applicants could have instituted a fresh set of constitutional redress proceedings to complain under Article 13 about the Constitutional Court judgment.
39. The applicants submitted that such an action would not have been appropriate and that the ordinary action at such stage was to bring the complaint before the Court.
40. The Government’s objection to this effect has been repeatedly rejected by this Court (see, amongst multiple authorities, Apap Bologna, cited above, § 63, Grech and Others v. Malta, no. 69287/14, § 50, 15 January 2019; and more recently Portanier, cited above, § 35). The Court sees no reason to reach a different conclusion in the present case.
41. The Government’s objection is therefore dismissed.
42. Further, the Court notes that it has already found a violation of Article 1 of Protocol No. 1 to the Convention, it follows that the applicants’ claims are arguable for the purposes of Article 13.
43. The Court considers that the complaint under Article 13 in conjunction with Article 1 of Protocol No. 1 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ submissions
44. The applicants submitted that constitutional redress proceedings were not an effective remedy because the Constitutional Court systematically failed to afford a remedy which was sufficient and brought the violation to an end.
45. In their view, the relief obtained domestically had not been appropriate or adequate, because the monetary award had been insufficient and had been unduly diminished as a result of the way in which the Constitutional Court apportioned the costs. The applicants noted that there was a systematic pattern of cases where, following the first-instance court’s award of compensation in cases of breaches of Article 1 of Protocol No. l, the Constitutional Court reviewed the award, lessening the amount of compensation due without giving particularly weighty reasons, and sometimes also without providing adequate reasoning for such negative review. Generally, in these cases the Constitutional Court had also ruled on the costs in such a way that the applicant whose rights were declared to have been violated had been burdened with at least part of the judicial costs. In this connection they referred to the domestic case-law enlisted in Grech and Others (cited above, § 53) and the Court’s case‑law finding breaches of Article 13 in similar cases.
46. The applicants also noted that the Constitutional Court systematically failed to evict the tenants. They considered that a declaration to the effect that the tenants could no longer rely on the title to the property arising from the laws which had breached the applicants rights was not sufficient as it obliged owners, including the applicants, to lodge further eviction proceedings which came at a cost, caused a further delay and a consequent loss of rent for the ensuing period.
47. The Government submitted that constitutional redress proceedings were an effective remedy which adequately redressed the applicants in respect of their grievances. They considered that ordering the immediate removal of the tenants would be draconian, given that they had been legitimately living in the premises. However, the Constitutional Court’s order, to the effect that the tenants could no longer rely on the requisition order to retain the title to the property, had given the applicants a realistic opportunity of regaining possession of their property. The effectiveness of such a measure was evident in the fact that tenants would have to vacate the property or face further legal action. The Government also considered that an adequate amount of compensation had been awarded in the circumstances of the case, as mentioned in their previous arguments.
2. The Court’s assessment
48. The Court reiterates its general principles under Article 13 as set out in Apap Bologna (cited above, §§ 76-79). In particular, for the purposes of Article 13, it is for the Court to determine whether the means available to an applicant for raising a complaint are “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred. In certain cases a violation cannot be made good through the mere payment of compensation and the inability to render a binding decision granting redress may also raise issues (ibid., § 77).
49. The Court notes that a remedy, in the form of constitutional redress proceedings, had been in principle available under Maltese law, which enabled the applicants to raise with the national courts their complaint of a violation of their Convention right to peaceful enjoyment of possessions.
50. The Court has already assessed the effectiveness of such a remedy, in practice, in cases concerning requisition orders. When assessing whether such a remedy was capable of preventing the alleged violation or its continuation, it found that while there was no doubt that in law, the courts of constitutional jurisdiction could annul an order and evict a tenant, it was clear from the case-law brought to the Court’s attention that in situations such as those of the present case, namely where a lawful requisition has imposed an excessive burden on an applicant leading to a violation, the courts of constitutional jurisdiction, and in particular the Constitutional Court on appeal, did not, at the relevant time, take such action (see, inter alia, Apap Bologna, cited above, § 85‑88, and Edward and Cynthia Zammit Maempel v. Malta, no. 3356/15, § 71, 15 January 2019).
51. The Court further notes that in Edward and Cynthia Zammit Maempel (cited above, § 82) where eviction was not necessary as the property had already been abandoned by the tenants, the Court noted that the remedy required was one that would have led to the revocation of the requisition order. In Grech and Others (cited above, § 61), the Government having derequisitioned the property and the tenants vacated the premises pending the constitutional redress proceedings, the Court held that the Constitutional Court needed not take any action “preventing the alleged violation or its continuation” as it had already come to an end. Nevertheless, the Government having failed to return the keys of the property to the applicants, in deciding on the pecuniary damage due, the Court determined compensation until the date of the return of the property (§ 74). More recently in Testaferrata Bonici and Others v. Malta (Committee judgment, no. 41862/18, 30 June 2020), the Court noted that the Constitutional Court in that case had ordered the derequisition of the property and therefore it had prevented the continuation of the violation (§ 43). In that case, the property had been entirely derequisitioned within a month and a half of the Constitutional Court judgment (§ 14).
52. In a different context, namely that of unilaterally imposed leases extended by operation of law – where the breach arose from the application of the law, but not from a specific action by the authorities, such as the requisition order in the instant case – the Court was faced with the Constitutional Court’s approach of making orders to the effect that the tenant may no longer rely on the relevant law to maintain title to the property. In those cases the Court expressed its doubts about this approach (see, for example, Portanier, cited above, § 50-53, and Marshall and Others v. Malta, no. 79177/16, §§ 73-74, 11 February 2020).
53. The Court observes that, in the present case, the Constitutional Court annulled the requisition order and declared that the tenants could no longer rely on their title to the property pursuant to its allocation to them following the requisition order. However, at the same time, in a contradictory fashion, it also revoked the eviction order made by the first‑instance court (see paragraph 16 above). The Court considers that the tenants’ impossibility to rely on the title they derived from the allocation of the property was an implicit consequence of the annulment of the requisition order, irrespective of whether it was spelt out in a declaration. That declaration was therefore unnecessary in the present case where the property had been allocated to the tenant by the Housing Authority pursuant to a requisition which was being annulled. Moreover, in the present case the landlords had no contractual relationship with the tenants (as opposed to the situation of imposed leases mentioned in the preceding paragraph).
54. The Court understands that the annulment of the requisition order, in itself, imposes an obligation on the Housing Authority to vacate the property and return the keys to the owner, without necessitating further action from the owners. In consequence, an order of annulment or revocation of the requisition order, of itself, would in principle be sufficient to prevent the continuation of a violation which arose from the requisition order (see the case law cited at paragraph 51 above) and not from its allocation to third persons, who had not been recognised as tenants (see paragraph 6, in fine, above).
55. However, in the present case the Housing Authority remained passive and the revocation of the requisition order had no practical effect. Indeed, two years after the Constitutional Court judgment the applicants are still suffering the acknowledged violation. This was the result of the contradictory judgment of the Constitutional Court which, while annulling the requisition order, revoked the eviction order. It follows that in the specific circumstances of the present case the Constitutional Court’s orders did not bring the violation to an end.
56. The Court must further examine whether constitutional redress proceedings provided adequate redress for any violation that had already occurred. In requisition cases the Court has repeatedly found that the sums awarded in compensation by the Constitutional Court did not constitute adequate redress (see, inter alia, Apap Bologna, cited above, §§ 89 and 82, and Grech and Others, cited above, § 62). Moreover, awards were also often not accompanied by an adequate award of non‑pecuniary damage and/or were burdened with an order for the payment of the relevant costs (ibid.). Thus, the Court repeatedly concluded that although constitutional redress proceedings were an effective remedy in theory, they were not so in practice, in cases such as the present one. In consequence, they could not be considered an effective remedy for the purposes of Article 13 in conjunction with Article 1 of Protocol No. 1 concerning arguable complaints in respect of requisition orders which, though lawful and pursuing legitimate objectives, imposed an excessive individual burden on applicants (ibid., § 63).
57. The Government made no submissions which could alter these conclusions. These findings are, in fact, reinforced by the circumstances of the present case (see paragraph 29 above), where the Constitutional Court overturned the first‑instance decision, which had been all-encompassing, reducing substantially the compensation awarded.
58. No other remedies have been referred to by the Government. Accordingly, the Court finds that there has been a violation of Article 13, in conjunction with Article 1 of Protocol No. 1 to the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
59. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
1. The parties’ submissions
60. The applicants claimed 302,000 euros (EUR) in pecuniary damage covering EUR 131,000 in loss of rent from 1970 to 2020 on the basis of the five yearly evaluation of the court-appointed architect, which amounted to EUR 171,000 from which had to be deducted the EUR 40,000 awarded by the Constitutional Court, and EUR 171,000 in interest at 8% but capped at the same sum of the capital in line with domestic law. The applicants also claimed EUR 67,000 in non-pecuniary damage. The legal representatives indicated their firm’s bank account to receive payment of all the sums awarded by the Court.
61. The Government considered that compensation was only due for the years 1987 onwards. Further, they considered that the method of calculation, namely adding up the court-appointed estimates, yielded an unjustified profit for the following reasons. Firstly, because there had been no certainty that the property would have been leased throughout the entire period of time. Secondly, the tenants had had to keep the property in a good state of repair, in the absence of which the court-appointed architect’s estimates for the earlier years would be fallacious. Thirdly, the measure had been in the public interest. The Government also considered that the sum claimed in interest (at the rate of 8% since 1970) was excessive and found no support in this Court’s case-law. They considered that the sum claimed in non‑pecuniary damage was also excessive and not in line with the Court’s practice.
2. The Court’s assessment
62. The Court must proceed to determine the compensation the applicants are entitled to in respect of the loss of control, use and enjoyment of the property which they have suffered from 1970 to date, given that they have not yet recovered the property.
63. In assessing the pecuniary damage sustained by the applicants, the Court takes into account the estimates provided by the court-appointed architect. However, the Court reiterates that legitimate objectives in the “public interest”, such as those pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value (see, for example, Ghigo v. Malta (just satisfaction), no. 31122/05, § 18, 17 July 2008, and Apap Bologna, cited above, § 99). In this connection the Court notes that such aim subsisted for most of the period at issue in the present case.
64. Furthermore, the sums already due to the applicants in rent, which remain retrievable, must be deducted. Moreover, the amount of EUR 40,000 awarded by the Constitutional Court, must also be deducted.
65. Interest should be added to the award in order to compensate for the loss of value of the award over time. As such, the interest rate should reflect national economic conditions, such as levels of inflation and rates of interest. The Court thus considers that a one‑off payment of 5% interest should be added to the above amount (ibid., § 20).
66. Hence, bearing in mind the above, the Court awards the applicants EUR 30,000, jointly, in pecuniary damage.
67. Moreover, the Court considers that the applicants must have sustained feelings of frustration and stress, having regard to the nature of the breaches. It thus also awards the applicants EUR 10,000 jointly, plus any tax that may be chargeable, under this head.
68. Lastly, the Court makes reference to its call for general measures, under Article 46 of the Convention, to be applied by the Maltese State in order to put an end to the systemic violation of the right of property identified in such cases (see Edwards v. Malta (just satisfaction), no. 17647/04, §§ 30‑34, 17 July 2008) and its encouragement to the Government to pursue such measures speedily and with due diligence under the supervision of the Committee of Ministers (see Apap Bologna, cited above, § 103).
69. As requested, the amount awarded is to be paid directly into the bank account designated by the applicants’ representatives (see, for example, Denisov v. Ukraine [GC], no. 76639/11, § 148, 25 September 2018, and as provided for in p. 22 of the Practice Direction on Just Satisfaction Claims (issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 28 March 2007)).
B. Costs and expenses
70. The applicants claimed 13,566.29 euros (EUR) in respect of costs and expenses, including EUR 4,457.39 in domestic court costs according to a taxed bill of judicial costs; EUR 3,021.90 in further professional fees paid by the applicants in relation to the domestic proceedings; EUR 5,546 in professional fees in connection with the proceedings before the Court, as well as EUR 531 for an architect’s report. The legal representatives indicated their firm’s bank account to receive payment of all the sums awarded by the Court.
71. The Government submitted that the Attorney General should not have been sued, thus the Government should not be made to bear that expense. They further considered that legal costs for the domestic proceedings should be limited to those arising from the taxed bill of costs. Lastly, they were of the view that the claim for the costs of proceedings before this Court was excessive.
72. Bearing in mind the relevant submissions and the documents in its possession, the Court awards the applicants EUR 8,000 in respect of costs and expenses under all heads, plus any tax that may be chargeable on the applicants.
C. Default interest
73. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 1 of Protocol No.1 to the Convention;
3. Holds that there has been a violation of Article 13 read in conjunction with Article 1 of Protocol No.1 to the Convention;
(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 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
(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;
5. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 17 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Attila Teplán Krzysztof Wojtyczek
Acting Deputy Registrar President
List of applicants:
|No.||Applicant’s Name||Birth date||Nationality||Place of residence|
|5||Blanche Mary REFALO||29/04/1942||Maltese||Sliema|
|8||Alexandra ZARB MIZZI||08/06/1941||Maltese||Sliema|