Last Updated on April 28, 2022 by LawEuro
Act XXIII of 1979 amending Chapter 158 of the Laws of Malta – Overview of the Case-law of the ECHR
Communicated on 31 August 2018
THIRD SECTION
Application no. 75199/16
Rose BORG
against Malta
lodged on 2 December 2016
STATEMENT OF FACTS
The applicant, Ms Rose Borg, is a Maltese national, who was born in Sliema in 1954. She is represented before the Court by Dr M. Camilleri and Dr E. Debono, lawyers practising in Valletta.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
The applicant owns property No. 54 (previously 36) in Sacred Heart Street, Birkirkara.
On 7 February 1981 the applicant had entered into a temporary emphyteusis contract with a third party (couple G.), for twenty‑one years, at an annual ground rent of 70 Maltese Lira (MTL) (approximately 163 euros (EUR)).
In 2002, on the expiry of the lease, couple G. relied on Act XXIII of 1979 amending Chapter 158 of the Laws of Malta, the Housing (Decontrol) Ordinance, (hereinafter “the Ordinance”) to retain the property under title of lease, at the annual rent of MTL 140, approximately EUR 326, as provided by the relevant law.
2. Constitutional redress proceedings
The applicant instituted constitutional redress proceedings claiming that Section 12 of the Ordinance as amended by Act XXIII of 1979 ‑ which granted the empyhteutae the right to retain possession of the premises under a lease – imposed on her as owner 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.
By a judgment of 25 February 2016 the Civil Court (First Hall) in its constitutional competence upheld the above-mentioned claim. It noted that according to the court‑appointed expert the rental value of the property in 2002 was equivalent to EUR 2,222 annually, while that in 2013 was EUR 3,450 annually. However, in 2002 the highest rent which the applicant could demand according to law was equivalent to EUR 326 annually, representing only 14.5 % of its rental value. According to the same expert, who had presented detailed valuations on an annual basis, the rent paid by couple G. in 2004 represented 11.7 % of the then rental value and for the years 2009-2013 represented 9.44% of the then rental value. Thus, while the rental value of the property on the open market increased by around 55 %, the rent paid by the tenants lagged behind. Indeed not even the index of inflation ‑ which had increased by around 22.2 % during the same period ‑ had reflected the reality of the inflation in relation to property as submitted by local experts. Thus, the applicant was suffering a disproportionate burden. The same was true even following the 2010 amendments which had slightly ameliorated the amount of rent payable.
The court found Section 12 of the Ordinance as amended by Act XXIII of 1979 to be null and thus that couple G. could no longer occupy the property on the basis of a contract based on such a provision. The court awarded EUR 15,000 in compensation, having considered i) that the applicant was due damage since 2002; ii) that the public interest involved diminished with the passage of time; iii) that the court‑appointed expert had estimated the rent between 2002‑2013 as amounting to EUR 35,535, while that paid had amounted to EUR 3,586; iv) that constitutional redress needed not necessarily amount to the market value of the rent.
On appeal by the defendants, by a judgment of 11 July 2016 the Constitutional Court upheld the finding of a violation of Article 1 of Protocol No. 1 to the Convention as well as the order that the tenants could no longer rely on the relevant law (in so far as it had been found to be incompatible with the Convention) to retain the property. It however reformed the amount of compensation and bearing in mind that the applicant had a possibility of eventually evicting the tenant, the Constitutional Court awarded the applicant EUR 5,000 covering both pecuniary and non-pecuniary damage. One fourth of the costs of the Attorney General in appeal proceedings were to be paid by the applicant. The Constitutional Court ordered that a copy of the judgment be notified to the Speaker of Parliament.
B. Relevant domestic law
The relevant domestic law in relation to the present case is set out in Amato Gauci v. Malta, (no. 47045/06, §§ 19-25, 15 September 2009).
COMPLAINT
The applicant complained she was still a victim of the violation of Article 1 of Protocol No. 1 upheld by the Constitutional Court given the low amount of compensation awarded.
QUESTION TO THE PARTIES
Has there been a violation of Article 1 of Protocol No. 1 to the Convention (see Amato Gauci v. Malta, no. 47045/06, 15 September 2009)?
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