CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 12 décembre 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s819344C9 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; font-size:14pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s46DB5BA6 { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .sB6A7F5BF { width:17.54pt; display:inline-block } .s6E24AFEB { width:129.08pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s76CF415B { page-break-before:always; clear:both } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sD00444C6 { margin-top:0pt; margin-bottom:14pt } .s6DB91820 { text-align:center } .s88830249 { width:100%; margin-right:auto; margin-left:auto; border-collapse:collapse } .s8D33CCA4 { width:7.76%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sE1A7A04C { font-family:Arial; font-weight:bold; color:#424242 } .sBF62C7DE { width:28.84%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sB9CB9C79 { width:19.1%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sC3628B83 { width:21.4%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s4FCA6737 { width:22.9%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sC18851D5 { width:7.76%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top } .s83D50FE0 { width:28.84%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top } .sE2E14DD7 { width:19.1%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top } .s9963D899 { width:21.4%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top } .s494FC888 { width:22.9%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top }     SECOND SECTION DECISION Application no. 38114/21 Mark PACE and Others against Malta   The European Court of Human Rights (Second Section), sitting on 12   December 2023 as a Committee composed of:   Pauliine Koskelo , President ,   Lorraine Schembri Orland,   Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the application (no.   38114/21) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 July 2021 by eight   Maltese nationals, relevant details are listed in the appended table (“the applicants”), who were represented by Dr N. DeBono, a lawyer practising in Valletta; the decision to give notice of the complaints under 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 Agents, Dr   C.   Soler, State Advocate, and Dr   A.   Falzon, Advocate at the Office of the State Advocate, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application concerns an imposed commercial lease on the applicants’ property, consisting of part of the British Hotel, Valletta, (hereinafter ‘the property’) as a result of the application of Chapter 69 of the Laws of Malta whereby the tenants were paying annually approximately 1,634 euros (EUR), increased according to inflation every three years as of 2009. The applicants acquired the various shares of the relevant part of the property via a number of inheritances which devolved onto them from 1986 to 2015. 2.     The applicants lodged constitutional redress proceedings complaining, inter alia , of a breach of Article 1 of Protocol No. 1 to the Convention in their respect, as a result of the application of Chapter 69 and its amendments in 2009. 3 .     In 1997 the applicants’ architect had estimated the sale value of the property at 25,000 Maltese liras (approximately EUR 58,200). 4.     According to the court-appointed expert, bearing in mind its development potential, including changes such as transforming the cellar into a commercial wine bar, and other changes allowing for the addition of further catering outlets and hotel rooms, the property’s sale value, in 2018, was estimated at EUR 5,200,000 and accordingly its annual rental value at EUR   249,600. Using yields varying from 3.5% to 4.8%, she considered that the estimated annual rental value in the period 1967-1972 as being EUR   4,025, that in 1973-78 EUR 4,550, that in 1979 ‑ 1984 EUR   5,750, that in 1985-1990 EUR 5,775, that in 1991-1996 EUR   9,800, that in 1997-2002 EUR 16,975, that in 2003-2008 EUR 29,750, and that in 2009-2014 EUR   108,000. Another architect appointed by the tenants estimated the sale value in 2018 as being EUR 4,000,000 bearing in mind the improvements made by the tenants and EUR 3,470,000 without such improvements. 5.     By a judgment of 17 June 2020, the Civil Court (First Hall) in its constitutional competence found a violation of Article 1 of Protocol No.   1 and, bearing in mind relevant factors, including the improvements made by the tenants, awarded EUR 510,000 in compensation for the period 1987 (as claimed by the applicants) to 2018 (date of the lodging of the proceedings), which included EUR 10,000 in non-pecuniary damage. It refused to evict the tenant but ordered that the tenant may no longer rely on the impugned law to maintain title to the property. 6.     Only the defendants appealed and by a judgment of 28 January 2021 the Constitutional Court confirmed the first-instance judgment, altering solely the order of costs. It considered, inter alia , that it was too late at that stage to challenge the court-appointed expert’s opinion as to the estimates made. However, it was relevant that the tenants had made extensive improvements to the property in the amount of EUR 380,000 which would be to the benefit of the applicants once the property was returned to them and which had an impact on the rental values calculated as used to estimate their losses. However, on the assumption that the owners were in favour of such changes (otherwise they could have evicted the tenants earlier) the tenants could also ask for repayment of those expenses once the lease expires. 7 .     On 1 February 2021, the applicants instituted ordinary proceedings before the Rent Regulation Board (RRB). By a judgment of 31 May 2021, the RRB ordered the eviction of the tenants within ninety days and the applicants regained possession of their property. 8.     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 were still victims of the violation found by the domestic courts, the constitutional jurisdictions having failed to award appropriate redress and evict the tenants. THE COURT’S ASSESSMENT 9.     The applicants complained under Article 1 of Protocol No. 1 to the Convention that they remained victims of the violation upheld by the domestic courts. 10.     The Court finds it opportune to note that according to their application the applicants’ complaint is directed at the compensation awarded for the period of “over more than thirty years” i.e. 1987-2018 (the period assessed by the domestic courts) and the failure to evict the tenants. It is therefore only the complaint in respect of that period which has been communicated to the Government and thus only that period is the subject of the proceedings before this Court. 11 .     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 observes that the domestic courts have acknowledged the violation and awarded EUR 500,000 in compensation for pecuniary damage and EUR 10,000 in non ‑ pecuniary damage. As to whether appropriate and sufficient redress was granted, the Court observes that, although prepared by a court-appointed expert and unrebutted by the State Attorney at the appropriate time during the domestic proceedings, the valuation relied on by the applicants and submitted to this Court did not take account of the factual reality of the property at issue in the present case and was based on its development potential. Its sale value, based on the potential, was the ground to calculate previous rental values despite the property not being so developed and rented out. For example, in 1997, another expert considered the property’s sale value as being EUR 58,200 while according to the court-appointed expert, the property had a rental value of EUR 16,975, in that same year, which would mean an unrealistic annual rental value of around 30% of its sale value. In consequence the valuation relied on by the applicants cannot reasonably be considered to reflect an acceptable valuation of the rental value on the market of the property at issue over the relevant period during which it was rented (compare Grech and Others v. Malta , no.   69287/14, § 76, 15 January 2019, and contrast Fleri Soler and Camilleri v. Malta (just satisfaction), no.   35349/05, § 17, 17   July 2008) and on that basis it cannot be said that the award made by the domestic court did not constitute adequate compensation. Moreover, taking into account the other valuation submitted during the domestic proceedings by the tenants, and to a certain extent the considerations made by the Constitutional Court in relation to the improvements, bearing in mind the Court’s practice in awarding compensation (see Cauchi v.   Malta , no.   14013/19, §§   102 ‑ 07, 25   March 2021) the Court considers that the compensation granted by the Constitutional Court is sufficiently similar to what the Court would have awarded in pecuniary and non ‑ pecuniary damage and thus that an adequate amount of compensation was awarded to the applicants (compare Bartolo Parnis and Others v.   Malta (dec.), nos.   49378/18 and 3   others, §   48, 24   March 2020, and Testa and Others v.   Malta (dec.), no.   58910/19, §   39, 7   September 2021) for the violation until 2018. 12.     The Court observes that the Constitutional Court had not ordered the eviction of the tenants or alternatively put in place a higher future rent (see Cauchi , cited above, § 30). It however made a declaration to the effect that the tenants may no longer rely on the impugned law to maintain title to the property. The Court has previously aired its reservations about this approach (ibid., § 31; see also, inter alia , Portanier v.   Malta , no. 55747/16, §§ 49-54, 27 August 2019, and Marshall and Others v.   Malta , no. 79177/16, § 73, 11   February 2020). In Cauchi (cited above, §   31) in the context of imposed leases under Chapter 158, the Court clearly stated that such a declaration had not had any effect in bringing the violation to an end. However, unlike in Cauchi , cited above, and Galea v. Malta (no.   28712/19, § 27, 7 October 2021) where an action for eviction based on such a declaration was impeded by Article 12B (11) of Chapter 158 introduced via the 2018 amendments to the law, the lease in the present case was governed by Chapter 69 of the Laws of Malta. Thus, at the time, an eviction based on such a declaration was not impeded by any provision of law and could have led to some favourable results, whether by means of eviction or an amicable agreement (see, for example, Grima v. Malta [Committee], no.   38660/20, §§   2 and   3, 22   September 2022; Apap Bologna v.   Malta [Committee], no.   47505/19, §§   18 and 20, 9 December 2021; and Ellis and Scilio v. Malta [Committee], no.   165/17, § 13, 30 June 2020). Indeed, the applicants pursued proceedings before the RRB and regained possession of their property within a few months of the Constitutional Court judgment (see paragraph 7 above). In these circumstances, the Court considers that the violation no longer persists (see, mutatis mutandis , Portanier , cited above, § 54, and Darmanin v. Malta (dec.) [Committee], no.   56311/19, §   18, 19 October 2021). 13.     It follows that the Government’s objection must be upheld as the applicants have lost their victim status for the purposes of their complaint under Article 1 of Protocol No. 1, which 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. 14.     Bearing in mind the considerations made above in relation to the applicants’ victim status, the Court considers that in the specific circumstances of the present case the complaint under Article 13 taken in conjunction with Article 1 of Protocol No. 1 is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention ( Darmanin , cited above, § 20, and compare Bartolo Parnis and Others , cited above, §   54). For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 18 January 2024.     Dorothee von Arnim   Pauliine Koskelo   Deputy Registrar   President   Appendix List of applicants: No. Applicant’s Name Year of birth Nationality Place of residence 1. Mark PACE 1950 Maltese St. Julians 2. John PACE 1964 Maltese Lija 3. Rachel RADMILLI 1972 Maltese St. Julians 4. Maria Pia GALEA 1956 Maltese St. Julians 5. Maria ARRIGO 1949 Maltese Siġġiewi 6. Alessandra RADMILLI 1948 Maltese Sliema 7. Louis Joseph SANT CASSIA 1946 Maltese Wardija 8. Paul RADMILLI 1976 Maltese Lija