CASE OF ATTARD AND OTHERS v. MALTA (European Court of Human Rights) 19853/20

The case concerns a unilaterally imposed lease under Act XXIII of 1979 amending Chapter 158 of the Laws of Malta (hereinafter “the Ordinance”) affecting the applicants’ property no. 19, Ġuże Ellul Mercer Street, Sliema (which they inherited from their mother in 2017) as of 8 September 1999. At that time the rent payable was 382 euros (EUR), which as of 2013 increased to EUR 529 and as of 2016 to EUR 540. Its annual market rental value in 1999 according to the court-appointed expert was EUR 5,217 and in 2018 EUR 8,400.


FIRST SECTION
CASE OF ATTARD AND OTHERS v. MALTA
(Application no. 19853/20)
JUDGMENT
STRASBOURG
22 September 2022

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

In the case of Attard and Others v. Malta,

The European Court of Human Rights (First Section), sitting as a Committee composed of:
Erik Wennerström, President,
Lorraine Schembri Orland,
Ioannis Ktistakis, Judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 19853/20) 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 May 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 application to the Maltese Government (“the Government”), represented by their Agent, Dr C. Soler, State Advocate, and Dr J. Vella, Advocate at the Office of the State Advocate;

the parties’ observations;

Having deliberated in private on 30 August 2022,

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 Chapter 158 of the Laws of Malta (hereinafter “the Ordinance”) affecting the applicants’ property no. 19, Ġuże Ellul Mercer Street, Sliema (which they inherited from their mother in 2017) as of 8 September 1999. At that time the rent payable was 382 euros (EUR), which as of 2013 increased to EUR 529 and as of 2016 to EUR 540. Its annual market rental value in 1999 according to the court-appointed expert was EUR 5,217 and in 2018 EUR 8,400.

2. In 2014 the applicants and/or their predecessor in title, unsuccessfully lodged proceedings before the Rent Regulation Board (hereinafter “the RRB”) requesting it to declare that the tenant breached the obligations imposed by the lease and that he was not using the premises as his ordinary residence.

3. On 12 April 2018 the applicants lodged constitutional redress proceedings claiming that the provisions of the Ordinance, as amended by Act XXIII of 1979 which granted tenants the right to retain possession of the premises under a lease, imposed on them as owners a unilateral lease relationship for an indeterminate time without reflecting a fair and adequate rent, in breach of, inter alia, Article 1 of Protocol No. 1 to the Convention. They asked the court to award compensation for the damage suffered and an appropriate remedy including the eviction of the tenant.

4. By a judgment of 21 November 2019, the Civil Court (First Hall), in its constitutional competence, found a violation of Article 1 of Protocol No. 1, as of 8 September 1999, bearing in mind that the applicants were receiving around 5% of the market rent according to the valuations of the court‑appointed expert which were accepted by the court. It awarded EUR 20,000 in pecuniary and non-pecuniary damage combined. Noting that the evidence had shown that the property was in dilapidated state and clearly not being used as a residence by the tenant, the court ordered his eviction within six months and that he pay a rent of EUR 700 per month until he vacates the property. No costs were to be paid by the applicants. None of the parties appealed.

5. The applicants complained that they were still the victims of a violation of their property rights as well as a violation of their right to an effective remedy, invoking Article 1 of Protocol No. 1 to the Convention and Article 13 of the Convention.

THE COURT’S ASSESSMENT

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

6. The applicants complained under Article 1 of Protocol No. 1 that they were still victims of the violation of Article 1 of Protocol No. 1 upheld by the domestic court given the low amount of compensation awarded.

7. The Court observes that the domestic court has acknowledged the violation and awarded EUR 20,000 in compensation for both pecuniary and non‑pecuniary damage. 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). Bearing in mind that the property had a rental value of, for example, EUR 8,400 in 2018, the Court considers that the compensation awarded for a violation persisting over decades was not adequate and 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.

8. 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). The additional domestic cases relied on by the Government in the present case, related to 2019, show that the Constitutional Court increased compensation in only six of sixteen appeals where this was requested. By way of example, in two of the ten cases where the appeal was rejected, it reduced compensation, and consequently in both cases this Court found relevant violations (see Apap Bologna v. Malta [Committee], no. 47505/19, § 33, 9 December 2021, and Hyzler and Others v. Malta [Committee], no. 45720/19, §, 9 December 2021). Similarly, amongst the eight cases where the Constitutional Court did not alter the compensation on appeal, the Court also found the relevant violation in the only case it has decided (see Gera De Petri Testaferrata v. Malta [Committee], no. 19465/20, § 8, 28 April 2022). It follows that the cases relied on by the Government do not dispel the Court’s earlier conclusions and finds that the Constitutional Court could not be considered an effective remedy which the applicants were required to undertake in 2019. As previously stated, the situation might be different in 2021 (see Cauchi, cited above, § 77).

9. 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.

10. 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).

11. Having regard to the findings of the domestic courts 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 7 above), the redress provided by the domestic court did not offer sufficient relief to the applicants.

12. 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.

II. OTHER ALLEGED VIOLATION UNDER WELL-ESTABLISHED CASE-LAW

13. The applicants also raised another complaint which is covered by the well‑established case-law of the Court. This complaint 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 7 above) and that the Government’s submissions in relation to the effectiveness of the Constitutional Court have been rejected (see paragraph 8 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

14. The applicants claimed 55,825.12 euros (EUR) as pecuniary damage based on the court-appointed expert’s valuation and in accordance with the calculation set out in Cauchi (cited above) covering rental losses for the period 1999-2020 and EUR 10,000 in respect of non-pecuniary damage.

15. The Government submitted that there had been no explanation as to the applicants’ calculation in respect of pecuniary damage. Furthermore, they considered that: (i) the values submitted by the expert were only estimates, and not amounts that the applicants would certainly have obtained; (ii) it could not be assumed that the property would have been rented out for the whole period if the tenants had not been protected by law ‑ particularly given the boom in property prices over recent years; (iii) the measure had been in the public interest and thus the market value was not called for. The Government also considered that the claim for non-pecuniary damage was excessive

16. The Court observes that the domestic court awarded a higher future rent until the tenant was evicted, which is in line with the expert’s estimates, and thus no award in relation to that period is due to the applicants. In relation to the period during which they suffered a violation, 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 Constitutional Court remains payable if not yet paid, the Court awards the applicants, jointly, EUR 40,000 in pecuniary damage and EUR 5,000, plus any tax that may be chargeable on that amount, in respect of non‑pecuniary damage.

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 of the Convention taken in conjunction with Article 1 of Protocol No. 1 to the Convention;

4. Holds

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

(i) EUR 40,000 (forty 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;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 22 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt                           Erik Wennerström
Deputy Registrar                            President

____________

APPENDIX

No. Applicant’s Name Year of birth Nationality Place of residence
1. George Olof ATTARD 1952 Maltese Sliema
2. Martin Fredereck ATTARD 1954 Maltese Sliema
3. Wilhelmina SOTTILE ATTARD 1949 Maltese Sliema

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