{"id":20816,"date":"2023-04-18T13:28:25","date_gmt":"2023-04-18T13:28:25","guid":{"rendered":"https:\/\/laweuro.com\/?p=20816"},"modified":"2023-04-18T13:28:25","modified_gmt":"2023-04-18T13:28:25","slug":"case-of-debono-and-dimech-v-malta-17094-21","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=20816","title":{"rendered":"CASE OF DEBONO AND DIMECH v. MALTA – 17094\/21"},"content":{"rendered":"

SECOND SECTION
\nCASE OF DEBONO AND DIMECH v. MALTA<\/strong>
\n(Application no. 17094\/21)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n18 April 2023<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Debono and Dimech v. Malta,<\/strong><\/p>\n

The European Court of Human Rights (Second Section), sitting as a Committee composed of:
\nJovan Ilievski, President,
\nLorraine Schembri Orland,
\nDiana S\u00e2rcu, judges,
\nand Dorothee von Arnim, Deputy Section Registrar,<\/p>\n

Having regard to:<\/p>\n

the application (no.\u00a017094\/21) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 26\u00a0March 2021 by two Maltese nationals, Mr\u00a0Anthony Debono and Ms\u00a0Simone Dimech, born in 1956 and 1954 respectively and living in Ta\u2019 Xbiex (\u201cthe applicants\u201d), who were represented by Mr\u00a0M.\u00a0Camilleri, a lawyer practising in Valletta;<\/p>\n

the decision to give notice of the complaints under Article\u00a01 of Protocol No.\u00a01 to the Convention alone, and in conjunction with Article\u00a013 of the Convention, to the Maltese Government (\u201cthe Government\u201d), represented by their Agents, Dr\u00a0C.\u00a0Soler, State Advocate, and Dr\u00a0J.\u00a0Vella and Dr\u00a0A.\u00a0Falzon, Advocates at the Office of the State Advocate, and to declare inadmissible the remainder of the application;<\/p>\n

the parties\u2019 observations;<\/p>\n

Having deliberated in private on 28 March 2023,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

SUBJECT MATTER OF THE CASE<\/strong><\/p>\n

1. The case concerns an imposed (residential) lease on the applicants\u2019 property in Sliema (which they inherited in 2004), as a result of the application of Chapter\u00a069 of the Laws of Malta whereby the tenants were paying annually EUR\u00a0112 in 1996, EUR\u00a0185 in 2010 and EUR\u00a0203 in 2016, according to law.<\/p>\n

2. The applicants lodged constitutional redress proceedings complaining inter alia of a breach of their property rights in relation to the effects the law was having on them in so far as it allowed the current tenants (couple\u00a0M.) to maintain a right to the property, while paying a disproportionately low amount of rent. They asked the court to liquidate damage suffered by them as a result.<\/p>\n

3. According to the court-appointed expert the property in 1986 had an annual rental value of EUR\u00a01,440, in 2003 of\u00a0EUR 3,675, in 2008 of EUR\u00a05,075, in 2013 of EUR\u00a07,800 and in 2018 of EUR\u00a015,000, based on a sale value in 2018 of EUR\u00a0300,000. According to the report while the rental yield in 2004 was 3.5% as from 2013 it was 4% and as of 2018 it was 5 %.<\/p>\n

4. By a judgment of 8 May 2019 the Civil Court (First Hall) in its constitutional competence found, inter alia, a violation of Article 1 of Protocol No. 1 in respect of the applicants and awarded EUR\u00a020,000 in compensation. It ordered that the tenants may no longer rely on the impugned law to maintain title to the property.<\/p>\n

5. On appeal by the State, in so far as relevant, by a judgment of 8\u00a0October 2020 the Constitutional Court confirmed the judgment. It noted that the applicants had suffered a violation only as of 2004. This was so not because that was the date when they had inherited the property (as argued by the State) given that they also inherited their ancestor\u2019s property rights, but rather because that was the year when the original tenant passed away and the current tenants had inherited the lease. It ordered the applicants to pay 1\/6 of the costs of the proceedings in relation to unsuccessful claims under Article\u00a014.<\/p>\n

6. On 12 October 2020 the applicants instituted proceedings before the Rent Regulation Board (RRB) requesting the eviction of the tenants. By a judgment of 25\u00a0March 2021 the RRB ordered the eviction of the tenants within thirty days. None of the parties appealed and the tenants vacated the property.<\/p>\n

7. The applicants complained under Article 1 of Protocol No.\u00a01 to the Convention alone and in conjunction with Article\u00a013 that they remained victims of the violation upheld by the domestic courts due to the low amount of compensation awarded and the failure to evict the tenants.<\/p>\n

THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n

I. ALLEGED VIOLATION OF ARTICLE 1 of Protocol No.\u00a01 tO THE CONVENTION<\/strong><\/p>\n

8. The applicants complain under Article 1 of Protocol No. 1 to the Convention that they remain victims of the violation upheld by the domestic courts.<\/p>\n

9. The Court notes that, from the material available to it, at the domestic level the applicants\u2019 complaint was related to the period following the inheritance of the tenancy by the current tenant (see paragraph 2 above), that is, 2004 onwards \u2013 a matter unrelated to the date when the applicants inherited the property, which coincidentally was also 2004. The Constitutional Court \u2013 which as a domestic court has the duty to verify the limits of an applicant\u2019s requests thereby avoiding acting ultra petita \u2013 also confirmed that conclusion (see paragraph 5 above). It follows that it is for the period following 2004 that the Court must determine whether the applicants are still victims.<\/p>\n

10. The Court observes that the domestic courts have acknowledged the violation (as of 2004) and awarded EUR\u00a020,000 in compensation for both pecuniary and non\u2011pecuniary damage. The Court refers to its general principles concerning victim status and its established case\u2011law in cases similar to the present one (see, among many other authorities, Apap Bologna v.\u00a0Malta, no.\u00a046931\/12, \u00a7\u00a7\u00a041, 43, 48 and 82, 30 August 2016). Bearing in mind that the property had a rental value of, for example, EUR\u00a05,075 in 2008 the Court considers that the compensation awarded for a violation persisting over fifteen years 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.\u00a0Malta, no.\u00a055747\/16, \u00a7 24, 27\u00a0August 2019). The Government\u2019s objection to this effect is therefore dismissed.<\/p>\n

11. The Court also dismisses the Government\u2019s objection of non\u2011exhaustion 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\u2019s effectiveness for the period until 2018 in Cauchi v. Malta (no.\u00a014013\/19, \u00a7\u00a7 55 and 77, 25\u00a0March 2021) and for the period until 2019 \u2013 relevant to the present case \u2013 in Pace v.\u00a0Malta ([Committee], no. 53545\/19, \u00a7\u00a09, 29 September 2022) and Grima and Others v. Malta ([Committee], no. 18052\/20, \u00a7 8, 7\u00a0March 2023), both finding that an appeal to the Constitutional Court could not be considered an effective remedy which the applicants were required to undertake in 2019. Nothing has been brought to the Court\u2019s attention to dispel those conclusions.<\/p>\n

12. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n

13. As to the merits, the Court refers to its general principles as set out, for example, in Amato\u00a0Gauci v. Malta (no. 47045\/06, \u00a7\u00a7\u00a052-59, 15\u00a0September 2009).<\/p>\n

14. Having regard to the findings of the domestic courts relating to Article\u00a01 of Protocol No. 1, the Court considers that it is not necessary to re\u2011examine 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. Moreover, as the Court has already found in the context of the objection on victim status (see paragraph 10 above), the redress provided by the domestic court did not offer sufficient relief to the applicants.<\/p>\n

15. The foregoing considerations are sufficient for the Court to find that there has been a violation of Article\u00a01 of Protocol No. 1 to the Convention.<\/p>\n

II. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW<\/strong><\/p>\n

16. 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.\u00a01. This complaint is covered by the well\u2011established case-law of the Court. It is not manifestly ill\u2011founded within the meaning of Article\u00a035 \u00a7\u00a03\u00a0(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 10 above) and that the Government\u2019s submissions in relation to the effectiveness of the Constitutional Court have been rejected (see paragraph 11 above), the Court concludes that it discloses a violation of Article 13 of the Convention in conjunction with Article 1 of Protocol No.\u00a01 in the light of its findings in, for example, Apap Bologna (cited above, \u00a7\u00a7\u00a089-91) and Portanier (cited above, \u00a7\u00a7\u00a055-56).<\/p>\n

APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n

17. The applicants claimed 58,727.34 euros (EUR) in respect of pecuniary damage based on the court-appointed expert\u2019s valuation and in accordance with their calculation based on Cauchi (cited above) covering rental losses for the period 1987-2020, EUR 8,000 in respect of non-pecuniary damage and EUR 1,027.24 in respect of costs and expenses incurred before the domestic courts.<\/p>\n

18. The Government questioned the applicants\u2019 calculations. 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 \u2011 particularly given the boom in property prices over recent years; and 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.<\/p>\n

19. The Court has already held at paragraph 9 above that the applicants\u2019 claim is limited to the period following 2004, thus any claims related to the antecedent period must be rejected. In relation to the subsequent 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, \u00a7\u00a7\u00a0102-07). Noting in particular that the award of the domestic court remains payable if not yet paid, the Court awards the applicants, jointly, EUR\u00a023,000 in pecuniary damage and rejects their claim for non\u2011pecuniary damage which can be considered covered by the domestic award.<\/p>\n

20. Having regard to the documents in its possession, and the reasons in relation to the order of costs addressed to the applicants, the claim for costs and expenses at the domestic level is rejected.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Declares the application admissible;<\/p>\n

2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;<\/p>\n

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;<\/p>\n

4. Holds<\/p>\n

(a) that the respondent State is to pay the applicants, jointly, within three months, EUR 23,000 (twenty-three thousand euros), in respect of pecuniary damage;<\/p>\n

(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;<\/p>\n

5. Dismisses the remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n

Done in English, and notified in writing on 18 April 2023, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Dorothee von Arnim \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Jovan Ilievski
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n

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SECOND SECTION CASE OF DEBONO AND DIMECH v. MALTA (Application no. 17094\/21) JUDGMENT STRASBOURG 18 April 2023 This judgment is final but it may be subject to editorial revision. In the case of Debono and Dimech v. Malta, The European…<\/p>\n

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