The applicants complained under Article 1 of Protocol No. 1 to the Convention alone and in conjunction with Article 13 that they remained victims of the violation upheld by the domestic court due to the low amount of compensation awarded and the failure to evict the tenants.
CASE OF GRIMA AND OTHERS v. MALTA
(Application no. 18052/20)
7 March 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:
Jovan Ilievski, President,
Lorraine Schembri Orland,
Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 18052/20) 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 2 April 2020 by three Maltese nationals, relevant details listed in the appended table (“the applicants”), who were represented by Dr M. Camilleri and Dr E. Debono, lawyers 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 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, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 7 February 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 Chapter 158 of the Laws of Malta (‘the Ordinance’) affecting the applicants’ property as of 1980. The applicants co-own the property at 40 Anġlu Mallia Street, Birkirkara, which they inherited from their father (and thus own 25 % each) and husband (and thus owns 50%), in December 2015. The annual rent payable in 1980 was approximately 150 euros (EUR), in 1995 it had to increase to approximately EUR 229, in 2010 to EUR 314, in 2013 to EUR 334 and in 2016 to EUR 341. However, the tenant continued to pay only EUR 203 per year.
2. On 4 January 2019 the applicants had instituted constitutional redress proceedings complaining of a violation of Article 1 of Protocol No. 1 to the Convention, indicating that their complaint concerned only the period until 2017, without prejudice to any further proceedings they might undertake in relation to the 2018 amendments of the law. According to a court-appointed expert the annual market rental value in 1980 was EUR 1,258, and in 2017 EUR 6,960. Thus, over the period 1980 to 2017 the total market rental value would have amounted to EUR 101,114.
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 and awarded EUR 30,000 in pecuniary and non-pecuniary damage combined. It considered that the applicants’ family had been suffering a violation since 1980, when the original contract had expired. Further, despite increases by law which were due, the tenants continued to pay only EUR 203 annually. The applicants had thus suffered a disproportionate burden. None of the parties appealed.
4. In the meantime, on 27 December 2018 the applicants instituted proceedings before the Rent Regulation Board (‘RRB’) according to Article 12B of the Ordinance as amended in 2018. By a final judgment of the Court of Appeal of 16 March 2022, it was decided that the tenant was to pay the following sums in rent retroactively: EUR 2,875 for 2018-2019; EUR 3,450 for 2020-2021; and EUR 4,025 for 2022-2023 (reflecting the rates of 1.25%, 1.5%, and 1.75% respectively, of the market value of the property).
5. The applicants complained under Article 1 of Protocol No. 1 to the Convention alone and in conjunction with Article 13 that they remained victims of the violation upheld by the domestic court due to the low amount of compensation awarded and the failure to evict the tenants.
THE COURT’S ASSESSMENT
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
6. The applicants complain under Article 1 of Protocol No. 1 to the Convention that they remain victims of the violation upheld by the domestic court.
7. The Court observes that the domestic court has acknowledged the violation and awarded EUR 30,000 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 6,960 in 2017, the Court considers that the compensation awarded for a violation persisting over decades 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.
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 – those dated 2020 being irrelevant as they post‑dated the situation of the applicants – show that the Constitutional Court increased compensation in only six of sixteen appeals where this was requested. Amongst the ten cases where the appeal was rejected, it reduced compensation in two of the cases, and 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, § 31, 9 December 2021). In the remaining eight cases, where the appeal was rejected, the Constitutional Court did not alter the compensation on appeal and the Court also found the relevant violations in all six cases brought before it and decided to date (namely, Gera De Petri Testaferrata v. Malta [Committee], no. 19465/20, § 8, 28 April 2022, and Anastasi and Others v. Malta [Committee], no. 49102/19 and 2 Others, 29 September 2022, the latter concerning six cases, five of which were relied on by the Government). 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 VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW
13. 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 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 30,654.30 euros (EUR) as pecuniary damage based on the court-appointed expert’s valuation and in accordance with their calculation based on Cauchi (cited above) covering rental losses for the period 1980-2022 and EUR 10,000 in respect of non-pecuniary damage.
15. The Government submitted that any losses due were to be calculated until 2017. Moreover, 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).
16. 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 tenants were obliged to maintain the appartements; (iv) 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.
17. The Court observes that the complaint lodged before the constitutional jurisdictions, and accordingly communicated to the Government, explicitly concerned the period until 2017, the remainder of the application having been declared inadmissible by the President acting as a Single Judge. It is in respect of that period that the Court considered the compensation awarded to be inadequate (see paragraph 7 above). In respect of the period 2018 onwards a new rent was established by the RRB which was not subject to the examination of this Court. Thus, no award in relation to any subsequent period is due to the applicants as a result of this judgment. 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 domestic court remains payable if not yet paid, the Court awards the applicants, jointly, EUR 20,000 in pecuniary damage and rejects their claim for non‑pecuniary damage which can be considered covered by the domestic award.
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;
(a) that the respondent State is to pay the applicants, jointly, within three months, EUR 20,000 (twenty thousand euros), in respect of pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 7 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Dorothee von Arnim Jovan Ilievski
Deputy Registrar President
List of applicants:
Application no. 18052/20
|No.||Applicant’s Name||Year of birth||Nationality||Place of residence|
 Louis Apap Bologna v. Avukat Generali, rik. 9/17, 29 March 2019;
Rebecca Hyzler et v. Avukat Generali et, rik. 42/15, 29 March 2019.
Josephine Azzopardi et v. L-Onorevoli Prim Ministru et, rik. 97/14, 29 March 2019; Josephine Azzopardi et v. L-Onorevoli Prim Ministru et, rik. 79/14, 29 March 2019; Josephine Azzopardi et v. L-Onorevoli Prim Ministru et, rik. 76/14, 12 July 2019;
Josephine Azzopardi et v. L-Onorevoli Prim Ministru et, rik. 78/14, 12 July 2019;
Josephine Azzopardi et v. L-Onorevoli Prim Ministru et, rik. 84/14, 12 July 2019;
Josephine Azzopardi et v. L-Onorevoli Prim Ministru et, rik. 83/14, 12 July 2019;
Agnes Gera de Petri Testaferrata v. Avukat Generali et, rik. 45/17, 29 November 2019; Gevimida Limited v. Carmen Fenech et, rik. 53/15, 29 November 2019.