CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 14 novembre 2023

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MALTA (Application no. 50473/20)           JUDGMENT           STRASBOURG 14 November 2023 This judgment is final but it may be subject to editorial revision. In the case of Galea and Borg v. Malta, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Frédéric Krenc , President ,   Diana Sârcu,   Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the application (no.   50473/20) 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 13 November 2020 by two Maltese nationals, Ms Simone Galea and Ms Dorothy Borg, born in 1960 and 1933 respectively and living in Sliema (“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 under Articles 1 of Protocol No.   1 to the Convention alone, and in conjunction with Article 13 of the Convention, in relation to the effects of Act XXIII of   1979, to the Maltese Government (“the Government”), represented by their Agents, 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 17 October 2023, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The case concerns an imposed lease as a result of the application of Chapter 69 of the Laws of Malta on the applicants’ property at 100/6 Nicolo’ Isuard Street, Sliema. The first applicant (as sole universal heir of her deceased father) is the bare owner of the entire property, and her mother, the second applicant, has the usufruct over the entire property, following the demise of their father/husband in 2015. 2.     In 1987 the tenants were paying 502 euros (EUR) per annum increased every three years according to the index of inflation as of 2009. In 2020 the annual rent payable was EUR   1,080. The applicants lodged constitutional redress proceedings in June 2019 complaining that the application of the law breached their property rights. According to the court-appointed expert the annual rental value in 1987 was EUR 917 and in 2018 it was EUR 14,112. Thus, the market rental income which could have been obtained over the relevant period (1987-2018) amounted to EUR   241,840. 3.     By a judgment of 30 June 2020, the Civil Court (First Hall), in its constitutional competence, found, inter alia , a violation of Article 1 of Protocol No. 1 to the Convention. Bearing in mind the guidelines in the expert report and the choices and conduct of the applicants, it awarded EUR 15,000 in pecuniary damage and EUR 5,000 in non-pecuniary damage. It declared that the tenant could no longer rely on the impugned law to maintain title to the property. Some of their claims being rejected, the applicants were to pay half of the costs of the proceedings. None of the parties appealed. 4.     On an unspecified date in 2020 the applicants entered into a new lease agreement with the tenants, which was no longer regulated by the impugned law. 5.     The applicants complained under Article 1 of Protocol No. 1 to the Convention alone and in conjunction with Article 13 of the Convention that they remained victims of the upheld violation due to the low amount of compensation awarded. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 1 OF protocol N o .   1 TO THE CONVENTION 6.     The applicants complained that they remained victims of the violation of Article 1 of Protocol No. 1 to the Convention upheld by the domestic court. 7 .     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). The Court notes that the domestic court has acknowledged the violation of Article 1 of Protocol No. 1 and awarded EUR 15,000 in pecuniary damage and EUR 5,000 in non-pecuniary damage. The Court observes that the first applicant, as sole universal heir, was entitled to recover the dues owed to her father (as full owner) prior to his demise in December 2017 (see Vassallo v. Malta [Committee], no. 52795/20, § 10, 12 September 2023), but not the losses thereafter, since she only inherited the bare ownership, and the fruits (i.e., the rent) of such property are solely due to the usufructuary (see Tabone v. Malta (dec.) [Committee], no.   23107/20, §   12, 28   March 2023), namely the second applicant. However, in awarding compensation the domestic court made no distinction between the first and second applicant, awarding all dues jointly. The Court will likewise not make any distinction. Bearing in mind that the property had a rental value of, for example, EUR 14,112 in 2018, 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) and for the period until 2019 in Pace v. Malta ([Committee], no.   53545/19, §   9, 29 September 2022) and Grima and Others v. Malta ([Committee], no. 18052/20, § 8, 7 March 2023). 9.     The Court notes that the additional domestic cases relied on by the Government in the present case, related to 2020, show that the Constitutional Court increased compensation in seven [1] of the eight appeals where this was requested. Thus, the Court considers that the case-law relied on by the Government offers a good indication that in 2020 the Constitutional Court abandoned its precedent practice of diminishing compensation awarded at first instance and, as argued by the Government, has started to examine these rent cases on their own merits, taking into account the facts of each case. 10.     However, the Court observes that the compensation terms applied by the Constitutional Court in March 2020 were nonetheless not consistently satisfactory. For example, on the same day, 27 March 2020, it upheld the plaintiff’s appeal and increased compensation in one judgment, thus awarding adequate compensation (see Tabone , cited above, §§ 10-13), while upholding the State’s appeal and therefore reducing compensation in two other judgments [2] , one of which resulting in an inadequate amount of compensation being awarded (see Grima v. Malta [Committee], no.   38660/20, §§ 6 and 9, 22 September 2022). The next case where compensation was increased by the Constitutional Court is dated 20 July 2020 [3] , that is the date by when the applicants would have had to file their appeal (i.e. twenty running days from the first-instance judgment of 30   June 2020 in their case). Thus, even assuming that, by 20 July 2020, the final awards made by the Constitutional Court were already in line with this Court’s awards (see, for example, Cuschieri and Others v. Malta (dec.) [Committee], no.   36806/21, § 8, 20   September 2022, in relation to the beginning of 2021) and that it could be considered an effective remedy, given the relevant timeline in the circumstances of the present case, the applicants could not have been expected to lodge an appeal to the Constitutional Court. 11.     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. 12.     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). 13.     Having regard to the findings of the domestic court 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. 14.     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. OTHER COMPLAINTS 15.     The applicants also complained under Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1. Having regard to the facts of the case, the submissions of the parties, and its findings above, including those related to the development of the Constitutional Court’s case-law in 2020, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the remaining complaint (see Centre for Legal Resources on behalf of Valentin Câmpeanu v.   Romania [GC], no.   47848/08, §   156, ECHR 2014). APPLICATION OF ARTICLE 41 OF THE CONVENTION 16.     The applicants claimed 115,697.63 euros (EUR) as pecuniary damage for rental losses from 1987 up to 2020 based on the court-appointed expert’s valuation and in accordance with their own calculations which they considered were based on the principles of Cauchi (cited above) and EUR   15,000 in non-pecuniary damage. They further claimed EUR 2,475.52 in domestic court costs, as per attached bill of costs. 17.     The Government submitted that 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). Additionally, they submitted that other relevant factors were to be taken into account (see for details, Debono and Dimech v. Malta [Committee], no. 17094/21, §   18, 18   April 2023). The Government also considered that the claim for non ‑ pecuniary damage was excessive. In respect of the claim for costs, which had not been accompanied by the relevant receipts, the Government submitted that the domestic court had ordered the payment of such costs in respect of complaints which had been rejected in line with well-established domestic case-law. 18.     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   80,000 in pecuniary damage and rejects their claim for non ‑ pecuniary damage which can be considered covered by the domestic award. The Court considers that it is not evident why the applicants have been ordered to pay half of the court costs despite them being successful in the vast majority of their claims. In these circumstances it considers it reasonable to award the applicants jointly EUR   1,000, plus any tax that may be chargeable to the applicants, in respect of costs and expenses. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the complaint concerning Article 1 of Protocol No. 1 to the Convention admissible; Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; Holds that there is no need to examine the admissibility and merits of the remaining complaint; Holds (a)   that the respondent State is to pay the applicants, jointly, within three months, the following amounts: (i)   EUR   80,000 (eighty thousand euros) in respect of pecuniary damage; (ii)   EUR   1,000 (one thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (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; Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 14 November 2023, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Dorothee von Arnim   Frédéric Krenc   Deputy Registrar   President [1] Victoria Amato Gauci et v. L-Avukat Generali et , Rik. 85/2013, 28 February 2020; Catherine Tabone pro et noe v. L-Avukat Generali et , Rik. 27/18, 27 March 2020; Mario Cachia et v. Supermarkets Limited et , Rik. 82/2015, 20 July 2020; Angela sive Gina Balzan v. L-Onorevoli Prim Ministru et , Rik. 16/2015/1, 8 October 2020; Michael Farrugia et v. L-Avukat Generali et , Rik. 79/2016, 6 October 2020; Giovanna Bartoli et v. Carmelo Calleja et , Rik. 46/2018/1, 6 October 2020; Henry Deguara Caruana Gatto et v. L-Avukat tal-Istat , Rik. 36/18, 23 November 2020. [2] Joseph Grima et v. L-Avukat Generali et , Rik. 22/19, 27 March 2020, Brian Psaila v. L-Avukat Generali et , Rik. 12/2018, 27 March 2020. [3] Mario Cachia et (cited above).