CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 24 mars 2020

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Serghides,   Paulo Pinto de Albuquerque,   Helen Keller,   Alena Poláčková,   Gilberto Felici,   Lorraine Schembri Orland, judges, and Milan Blaško, Section Registrar, Having regard to the above applications lodged on the various dates indicated in the appended table, Having deliberated, decides as follows: THE FACTS 1.     A list of the applicants is set out in the appendix. The applicants were represented by Dr P. M. Magri. The circumstances of the case 2.     The facts of the case, as submitted by the applicants, may be   summarised as follows. 3.     On the demise of the applicants’ ancestors, the apartments at issue in the present applications, along with others, were inherited jointly by the applicants, who are sisters, and by a deed of division of property dated 7   October 2015 the applicants divided the properties between them, as explained below. 4.     In 1957 the applicants’ ancestors had given their property ( utile dominium , held by title of perpetual emphyteusis) consisting of several apartments (later inherited by the applicants), in St. Julian’s Court, Triq is-sur Fons, St. Julians, on lease to third parties for forty-five years. 5.     The lease expired in 2002. However, the tenants maintained occupation of the premises despite not having any legal title to them. In 2006 the applicants requested the tenants of the apartment to vacate the premises but the latter refused to do so. No eviction proceedings were lodged against the tenants. 6.     In 2007 the Government introduced Act no. XVIII of 2007 (hereinafter “the 2007 law”) introducing Section 12A into the Housing De ‑ Control Ordinance (Chapter 158 of the Laws of Malta) (hereinafter “the Ordinance”) allowing for any such tenants who had not been evicted to remain in occupation of the premises under specific conditions (including a low rent). On the basis of that provision of law the tenants of the apartments at issue in the present case continued to reside there. Application no. 49378/18 7.     By a deed of division of property dated 7 October 2015 the applicant became the sole and exclusive owner of apartments 12B, 24C, 37D, 44D and 49D. 8.     In 2014 the applicant (along with the other heirs who are the applicants in the other applications) introduced constitutional redress proceedings complaining, inter alia , that the law enacted in 2007 created a forced lease relationship causing her a disproportionate burden in breach of Article 1 of Protocol No. 1 to the Convention. 9.     Pending these proceedings, apartments 12B and 37D were returned to the applicant in 2015 and 2016 respectively. 10.     By a series of first-instance judgments of 28 September 2017 the first-instance constitutional jurisdiction found a violation of the claimants’ property rights, in relation to apartments 12B, 24C, 37D, 44D and 49D, given that by the enactment of the 2007 law, a forced lease had been imposed on owners, who were receiving a very low rent. It awarded   5,000   euros (EUR) in compensation and held (in connection with apartments 24C, 44D and 49D which were still occupied) that the tenants could no longer rely on Section 12A of the 2007 law to continue to occupy the premises. It rejected the complaints raised under Articles 6 and 14 of the Convention. Costs were to be paid by the defendants. 11.     The applicant appealed solely against the redress awarded. 12.     By a series of judgments of 24 April 2018, the Constitutional Court confirmed the first-instance judgments and increased the compensation. Bearing in mind that i) had the owners evicted the tenants in 2002 (as they could have done when the latter lost legal title) they would not have suffered the violation; ii) the duration, namely from 2007, until date of judgment ( recte or release of property - ie. eleven years in respect of the apartments still occupied, and less for the others); iii) the rental value, as well as the fact that the apartments might not have been rented out throughout the whole period; iv) the public interest involved; v) the fact that compensation had to be complete; vi) the uncertainty suffered by the owners vii) the costs they incurred to undertake judicial proceedings, as well as viii)   (in connection with apartments 24C, 44D and 49D) the fact that a further remedy was being given (enabling the applicant to eventually evict the tenants), it awarded EUR 20,000 in compensation for each flat. 13.     It however reversed the finding in relation to costs at first instance and considered that the claimants were to pay the entire costs of proceedings in connection with the costs of the defendants who should not have been cited to appear, and half of the remaining costs of the first-instance proceedings since they had not been successful in all the claims. It also ordered the claimants to pay 1/6 of the costs of the appeal proceedings for the same reason. Application No. 49380/18 14.     By a deed of division of property dated 7 October 2015 the applicant became the sole and exclusive owner of apartments 20B, 33C, 39D and 48D. 15.     In 2014 the applicant (along with the others heirs who are the applicants in the other applications) introduced constitutional redress proceedings complaining, inter alia , that the law enacted in 2007 created a forced lease relationship causing her a disproportionate burden in breach of Article 1 of Protocol No. 1 to the Convention. 16.     Pending these proceedings, apartment 39D was returned to the owners on 21   March 2015 and apartment 48D was returned to the applicant on an unspecified date in 2017. 17.     By a series of first-instance judgments of 28 September 2017 the first ‑ instance constitutional jurisdiction found a violation of the claimants’ property rights, in relation to apartments 20B, 33C and 48D, given that by the enactment of the 2007 law, a forced lease had been imposed on owners, who were receiving a very low rent. It awarded EUR 5,000 in compensation and held (in connection with apartments 20B, 33C and 48D which were still occupied at the time) that the tenants could no longer rely on Section 12A of the 2007 law to continue to occupy the premises. It rejected the complaints raised under Articles 6 and 14 of the Convention. Costs were to be paid by the defendants. 18.     By a similar first-instance judgment of 13 April 2018, the court also found a violation in respect of apartment 39D (which had by then been returned to the applicant) and awarded EUR 20,000 in compensation. It ordered that one-third of costs of the proceedings be paid by the applicant. 19.     The applicant appealed solely against the redress awarded. 20.     By a series of judgments of 24 April 2018, the Constitutional Court confirmed the first-instance judgments and increased the compensation in respect of apartments 20B, 33C and 48D. Bearing in mind that i) had the owners evicted the tenants in 2002 (as they could have done when the latter lost legal title), they would not have suffered the violation; ii) the duration, namely from 2007, until date of judgment (or release of property – ie.   eleven years in respect of the apartments still occupied, and less for the others); iii) the rental value, as well as the fact that the apartments might not have been rented out throughout the whole period; iv) the public interest involved; v) the fact that compensation had to be complete; vi) the uncertainty suffered by the owners and the costs they incurred to undertake judicial proceedings, as well as vii) (in connection with apartments 20B and   33C which were still occupied at the time) the fact that a further remedy was being given (enabling the applicant to eventually evict the tenants), it awarded EUR 20,000 in compensation for each flat. 21.     In relation to apartments 20B, 33C and 48D, it reversed the finding in relation to costs at first instance and considered that the claimants were to pay the entire costs of proceedings in connection with the costs of the defendants who should not have been cited to appear, and half of the remaining costs of the first-instance proceedings since they had not been successful in all the claims. It also ordered the claimants to pay 1/6 of costs of the appeal proceedings for the same reason. 22.     In respect of apartment 39D, (where the first-instance court had already awarded EUR 20,000) it confirmed the first-instance judgment, including the award of compensation. It, however, altered the award of costs at first instance, ordering the claimants to pay only 1/5 of costs, and ordered them to pay all the costs of the appeal. Application no. 49496/18 23.     By a deed of division of property dated 7 October 2015 the applicant became the sole and exclusive owner of apartments 11B, 26C, 40D and 41D. 24.     In 2014 the applicant (along with the other heirs who are the applicants in the other applications) introduced constitutional redress proceedings complaining, inter alia , that the law enacted in 2007 created a forced lease relationship causing her a disproportionate burden in breach of Article 1 of Protocol No. 1 to the Convention. 25.     Pending these proceedings, apartments 26C and 40D were returned to the applicant on unspecified dates in 2017 and 2016 respectively. 26.     By a series of first-instance judgments of 28 September 2017 the first ‑ instance constitutional jurisdiction found a violation of the claimants’ property rights, in relation to apartments 11B, 26C, 40D and 41D, given that by the enactment of the 2007 law, a forced lease had been imposed on owners, who were receiving a very low rent. It awarded EUR 5,000 in compensation and held (in connection with apartments 11B, 26C and 41D which were still occupied) that the tenants could no longer rely on Section   12A of the 2007 law to continue to occupy the premises. It rejected the complaints raised under Articles 6 and 14 of the Convention. Costs were to be paid by the defendants. 27.     The applicant appealed solely against the redress awarded. 28.     By a series of judgments of 24 April 2018, the Constitutional Court confirmed the first-instance judgments and increased the compensation. Bearing in mind that i) had the owners evicted the tenants in 2002 (as they could have done when the latter lost legal title) they would not have suffered the violation; ii) the duration, namely from 2007, until date of judgment ( recte or release of property - ie. eleven years in respect of the apartments still occupied, and less for the others); iii) the rental value, as well as the fact that the apartments might not have been rented out throughout the whole period; iv) the public interest involved; v) the fact that compensation had to be complete; vi) the uncertainty suffered by the owners and the costs they incurred to undertake judicial proceedings, as well as vii)   (in connection with apartments 11B, 26C and 41D) the fact that a further remedy was being given (enabling the applicant to eventually evict the tenants), it awarded EUR 20,000 in compensation for each flat. 29.     It however reversed the finding in relation to costs at first instance and considered that the claimants were to pay the entire costs of proceedings in connection with the costs of the defendants who should not have been cited to appear, and half of the remaining costs of the first-instance proceedings since they had not been successful in all the claims. It also ordered the claimants to pay 1/6 of costs of the appeal proceedings for the same reason. Application no. 49676/18 30.     By the deed of division of property dated 7 October 2015 the applicant became the sole and exclusive owner of apartments 30C, 32C and 46D. 31.     In 2014 the applicant (along with the other heirs who are the applicants in the other applications) introduced constitutional redress proceedings complaining, inter alia , that the law enacted in 2007 created a forced lease relationship causing her a disproportionate burden in breach of Article 1 of Protocol No. 1 to the Convention. 32.     Pending these proceedings, apartment 32C was returned to the applicant in 2015. 33.     By a series of first-instance judgments of 28 September 2017 the first-instance constitutional jurisdiction found a violation of the claimants’ property rights, in relation to apartments 30C, 32C and 46D, given that by the enactment of the 2007 law, a forced lease had been imposed on owners, who were receiving a very low rent. It awarded EUR 5,000 in compensation and held (in connection with apartment 30C and 46D which were still occupied) that the tenants could no longer rely on Section 12A of the 2007 law to continue to occupy the premises. It rejected the complaints raised under Articles 6 and 14 of the Convention. Costs were to be paid by the defendants. 34.     The applicant appealed solely against the redress meted out. 35.     By a series of judgments of 24 April 2018, the Constitutional Court confirmed the first-instance judgments and increased the compensation. Bearing in mind that i) had the owners evicted the tenants in 2002 (as they could have done when the latter lost legal title) they would not have suffered the violation; ii) the duration, namely from 2007, until date of judgment ( recte or release of property - ie. eleven years in respect of the apartments still occupied, and less for the others); iii) the rental value, as well as the fact that the apartments might not have been rented out throughout the whole period; iv) the public interest involved; v) the fact that compensation had to be complete; vi) the uncertainty suffered by the owners and the costs they incurred to undertake judicial proceedings, as well as vii)   (in connection with apartments 30C and 46D) the fact that a further remedy was being given (enabling the applicant to eventually evict the tenants), it awarded EUR 20,000 in compensation for each flat. 36.     It however reversed the finding in relation to costs at first instance and considered that the claimants were to pay the entire costs of proceedings in connection with the costs of the defendants who should not have been cited to appear, and half of the remaining costs of the first-instance proceedings since they had not been successful in all the claims. It also ordered the claimants to pay 1/6 of costs of the appeal proceedings for the same reason. Other relevant information 37.     Section 12B of the Ordinance, introduced by Act No.   XXVII of 2018, entered into force on 1   August 2018, stultifying the outcome of the Constitutional Court judgments in respect of the possibility of evicting the tenant. The provision introduces a further procedure to be undertaken even in cases where any emphyteusis, sub-emphyteusis or tenancy in respect of a dwelling house regulated under Sections 5, 12 or 12A of the Ordinance has lapsed due to a court judgment based on the lack of proportionality. The law provides that in such cases it shall not be lawful for the owner to proceed to request the eviction of the occupier without first availing himself of the provisions of the article. Relevant domestic law 38.     Section 12A of the Housing De-Control Ordinance (Chapter 158 of the Laws of Malta) introduced on 3 August 2007, as slightly amended in 2010, reads as follows: “(1) This article shall apply: ( a ) on the expiration of a temporary emphyteusis or subemphyteusis (hereinafter in this article referred to as "the most recent emphyteusis or sub-emphyteusis") which is not one the effects of the termination of which are regulated by article 12(2)( a ) or ( b ) or by article 12(4) or 12(5); ( b ) of a dwelling house which at the time of the expiration of the most recent emphyteusis or sub-emphyteusis: (i) is occupied by a citizen of Malta as his ordinary residence; and (ii) is subject to another emphyteusis or subemphyteusis (hereinafter in this article referred to as "the preceding emphyteusis or subemphyteusis") whether perpetual or temporary. (2) On the expiration of the most recent emphyteusis or subemphyteusis the emphyteuta or the sub-emphyteuta who satisfies the requirements of subarticle   (1)( b )(i) shall be entitled to continue in occupation of the dwelling house under a lease from the person holding the preceding emphyteusis or sub-emphyteusis at the same rent and under the same conditions applicable according to article 12(2)(i), (ia) and (ii) which shall apply mutatis mutandis . (3) On the expiration of the preceding emphyteusis or subemphyteusis the lease mentioned in subarticle (2) shall remain in force for the same rent and under the same conditions as mentioned in subarticle (2) between the tenant and the person who from time to time would, were it not for the tenancy, be entitled to the vacant possession of the house. (4) The provisions of this article shall also apply in all cases where although the most recent emphyteusis or sub-emphyteusis shall have expired before the 1st July 2007 the person who was the emphyteuta or the sub-emphyteuta in the most recent emphyteusis or sub-emphyteusis still occupies the house as his ordinary residence on the said date. (5) When on the expiration of the most recent emphyteusis or sub-emphyteusis the dwelling house is subject to a lease the provisions of article 12(3) shall apply mutatis mutandis . (6) The rights given by this article to the emphyteuta and to the sub-emphyteuta of the most recent emphyteusis or sub-emphyteusis shall, where the said emphyteuta or sub-emphyteuta shall have died before the 1st July 2007, be exercisable by the person who resided with the said emphyteuta or sub-emphyteuta at the time of his death and had at that time all the other qualifications to be treated as a tenant for the purposes of article 12. (7) Where in the case of a most recent emphyteusis or subemphyteusis which expires after the 1st July 2007 the emphyteuta, the sub-emphyteuta or the tenant occupying the house as his ordinary residence on the expiration of the most recent emphyteusis or sub-emphyteusis is a person different from the person occupying the house as his ordinary residence on the 1st July 2007 the provisions of this article shall apply only in the cases mentioned in article 12(8)( a ) and ( b ) which paragraphs shall apply mutatis mutandis to the emphyteusis and the sub-emphyteusis regulated by this article, provided however that references to the “21st June 1979” are to be read and construed as references to the “1st July 2007”, references to “the emphyteusis” are to be read and construed as references to “the most recent emphyteusis or sub ‑ emphyteusis” and references to “the emphyteuta” shall be read and construed accordingly, and the reference to the “30th September 1979” shall be read and construed as a reference to the “31st December 2007”.” COMPLAINTS 39.     The applicants complain under Article 1 of Protocol No. 1 and Article   13 of the Convention that the violation of their property rights was not brought to an end and that they were not adequately compensated for the breach, in view of the value of the properties, as well as the fact that the Constitutional Court had considered that the breach only started in 2007 as the applicants had freely chosen to let the tenants stay there following 2002 (when their tenancy had expired and thus they had no title to the property). 40.     The applicants specify that they are not complaining about the application of Section 12B of the Ordinance to their cases, without prejudice to any future complaints they may lodge had this provision to be applied to their situation. THE LAW Joinder of the applications 41.     In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications given their similar factual and legal background. Article 1 of Protocol No. 1 in relation to the period 2002-2007 42.     The applicants complain under Article 1 of Protocol No. 1 that the Constitutional Court considered that the breach of their rights only started in 2007 as the applicants had freely chosen to let the tenants stay there following 2002 (when their tenancy had expired and thus they had no title to the property). The provision reads as follows: Article 1 of Protocol No. 1 “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.” 43.     As the Court has stated on a number of occasions, Article 1 of Protocol No. 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, inter alia , to control the use of property in accordance with the general interest. The three rules are not, however, distinct in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among other authorities , James and   Others   v. the United Kingdom , judgment of 21 February 1986, Series   A no.   98, § 37; Beyeler v.   Italy [GC], no. 33202/96, § 98, ECHR 2000-I; and Saliba v.   Malta , no.   4251/02, § 31, 8 November 2005). The Court has previously held that rent control schemes and restrictions on an applicant’s right to terminate a tenant’s lease constitutes control of the use of property within the meaning of the second paragraph of Article 1 (see for example, Amato Gauci v.   Malta , no.   47045/06, §52, 15 September 2009 and Anthony Aquilina v.   Malta , no. 3851/12, § 54, 11 December 2014). 44.     The Court notes that in the present case the interference with the applicants’ possessions was a result of Act no. XVIII of 2007 (introducing Section 12A into the Ordinance) and it is only the application of that legislation which resulted in a control of the use of the applicants’ property. It follows that, as held by the domestic constitutional jurisdictions, the applicants have not suffered any interference prior to the date when Section   12A of the Ordinance came into force. 45.     It follows that in so far as the applications relate to the period from 2002 till 3 August 2007 they must be rejected as being manifestly ill ‑ founded, pursuant to Article   35 §§ 3 (a) and 4 of the Convention. Article 1 of Protocol No. 1 in relation to the period following the 2007 law 46.     The applicants complain under Article 1 of Protocol No. 1 that the violation of their property rights following the entry into force of the 2007 amendments was not brought to an end and that they were not adequately compensated for the breach by the Constitutional Court, in view of the value of the properties. In relation to the properties released prior to the Constitutional Court judgments 47.     The Court reiterates that   the adoption of a measure favourable to the applicant by the domestic authorities will deprive the applicant of victim status only if the violation is acknowledged expressly, or at least in substance, and is subsequently redressed (see Scordino v. Italy (no. 1) [GC], no.   36813/97, §§ 178 et seq. and § 193, ECHR 2006 ‑ V, and Brumărescu v.   Romania [GC], no. 28342/95, § 50, ECHR 1999 ‑ VII). Whether the redress given is effective will depend, among other things, on the nature of the right alleged to have been breached, the reasons given for the decision and the persistence of the unfavourable consequences for the person concerned after that decision (see Oliari and Others v. Italy , nos.   18766/11 and 36030/11, § 78, 21 July 2015). The redress afforded must be appropriate and sufficient. Whether an individual has victim status may also depend on the amount of compensation awarded by the domestic courts and the effectiveness (including the promptness) of the remedy affording the award (see Paplauskienė v. Lithuania , no. 31102/06, § 51, 14   October 2014). 48.     In the present case the Court notes that the first criterion, namely acknowledgment of a violation, has been met. As to the second criterion, bearing in mind the Court’s practice in awarding compensation in similar cases, the Court considers that an adequate amount of compensation was awarded, which in the present case amounted to EUR 20,000 for each apartment covering both pecuniary and non-pecuniary damage. In this connection it is also noted that a reasonable explanation was given by the domestic courts justifying the costs the applicants were made to pay (see, a contrario , Zammit and Vassallo v.   Malta , no. 43675/16, § 42, 28 May 2019 and Portanier v.   Malta , no.   55747/16, § 24, 27 August 2019). Mainly, these were due to failures in the bringing of proceedings before those courts or were related to the applicants’ failed claims or appeals, and therefore the order to pay costs in the present applications has no impact on the reasonableness of the awards made. It follows that appropriate financial redress has been awarded. 49.     Moreover, the Court notes that apartments 12B and 37D, 39D and 48D, 26C and 40D, and 32C have been returned to the respective applicants, and thus no unfavourable consequences have continued to persist (see, a contrario , Apap Bologna v. Malta , no. 46931/12, § 47, 30 August 2016). Therefore, no further action preventing the violation or its continuation which had come to an end pending proceedings, was required by the Constitutional Court (see, for example, Grech and Others v. Malta , no.   69287/14, § 61, 15 January 2019). 50.     It follows that in the present case, in relation to the above-mentioned properties, which had been returned to the applicants, the redress provided by the Constitutional Court offered sufficient relief to the applicants, who no longer suffer the consequences of the breach of their rights, and therefore have lost their victim status in this respect. 51.     This part of the complaint is therefore incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 §   3   (a) and must be rejected in accordance with Article 35 § 4 of the Convention. In relation to the properties which were not released prior to the Constitutional Court judgments 52.     In so far as this complaint concerns the properties which continue to be subject to the 2007 law (apartments 11B, 20B, 24C, 30C, 33C, 41D, 44D, 46D and 49D), the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government. Article 13 in conjunction with Article 1 of Protocol No. 1 53.     The applicants complain under Article   13 that the violation of their property rights was not brought to an end and that they were not adequately compensated for the breach, by the Constitutional Court, in view of the value of the properties. The provision 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.” 54.     The Court reiterates that Article 13 does not apply in the absence of an arguable claim (see Maurice v. France [GC], no. 11810/03, §   106, ECHR   2005 ‑ IX). Moreover, bearing in mind the considerations made above, the Court considers that this complaint in relation to the period prior to 2007 and in relation to those properties which have been returned to the applicants during the constitutional proceedings, is manifestly ill-founded and must be rejected pursuant to Article   35 §§ 3 (a) and 4 of the Convention. 55.     In so far as the complaint concerns the effectiveness of constitutional redress proceedings in relation to the properties which continue to be subject to the 2007 law, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government. For these reasons, the Court, unanimously, Decides to join the applications; Decides to adjourn the examination of the applicants’ complaints (in relation to the period 2007 onwards) concerning the properties which continued to be subject to the 2007 law after the Constitutional Court judgment; Declares the remainder of the applications inadmissible. Done in English and notified in writing on 28 May 2020.   Milan Blaško   Paul Lemmens   Registrar   President   APPENDIX     No. Application no. Case name Lodged on Applicant Year of Birth Place of Residence Nationality 1 49378/18 Bartolo Parnis v. Malta 17/10/2018 Greta BARTOLO PARNIS 1965 Pembroke Maltese 2 49380/18 Anastasi v. Malta 17/10/2018 Patricia ANASTASI 1963 Swieqi Maltese 3 49496/18 Saddemi v. Malta 17/10/2018 Anna Maria SADDEMI 1960 St Julians Maltese 4 49676/18 Azzopardi v. Malta 17/10/2018 Josephine AZZOPARDI 1958 St. Julian’s Maltese