CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 16 janvier 2024

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MALTA (Application no. 3158/21)             JUDGMENT   STRASBOURG 16 January 2024   This judgment is final but it may be subject to editorial revision. In the case of Zammit v. Malta, The European Court of Human Rights (Second Section), sitting 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.   3158/21) 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 7 January 2021 by a Maltese national, Mr Joseph Zammit, born in 1944 and living in Paola (“the applicant”), who was represented originally by Dr K. Micallef and later by Dr   N. Debono, lawyers 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   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 12 December 2023, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The application concerns a unilaterally imposed lease under Act XXIII of 1979 amending Chapter 158 of the Laws of Malta (‘the Ordinance’) affecting the applicant’s property ‘Erica’, in Valletta Road, Paola, as of March 2004. At that time the annual rent payable was approximately 362   euros (EUR), in 2013 it increased to EUR 447 annually, which would increase every three years thereafter according to the cost-of-living index, and in 2018 it was approximately EUR 453. 2.     The applicant lodged constitutional redress proceeding complaining that the application of Article 12 of the Ordinance was in breach of his property rights. According to the court-appointed expert, the property’s market annual rental value in the years 2004-2009 was EUR 3,150, in 2010 ‑ 2015 EUR   5,250 and in 2016-2018 EUR 7,700, totalling around EUR   70,000 over the relevant period. The applicant limited his claims to December 2018 after which a new agreement was reached with the tenant in line with the 2018 amendments to the Ordinance. 3.     By a judgment of 21 July 2020 the Civil Court (First Hall) in its constitutional competence found a violation of Article 1 of Protocol No. 1 to the Convention and awarded the applicant EUR 15,000 in pecuniary damage and EUR   5,000 in non-pecuniary damage. It bore in mind the evaluation submitted but considered that the boom in property prices had only occurred recently and that the rents in earlier years had been much lower, as well as the unlikely possibility of the property having been rented out all throughout at such prices. One fifth of the costs were to be paid by the applicant. None of the parties appealed. 4.     Invoking Article 1 of Protocol No. 1 to the Convention alone and in conjunction with Article 13 of the Convention, the applicant complained that he was still a victim of the violation found by the domestic court, the constitutional jurisdiction having failed to award appropriate redress. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 1 of protocol n o . 1 tO THE CONVENTION 5.     The applicant complained that he was still a victim of the violation of Article 1 of Protocol No. 1 to the Convention upheld by the domestic court. 6 .     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 court has acknowledged the violation and awarded EUR 15,000 in compensation for pecuniary damage and EUR 5,000 in non ‑ pecuniary damage. The Court is sensitive to the domestic court’s reflections concerning prices in earlier years, nevertheless it notes that the present case concerns the period following 2004, and not the 80s or 90s as in other cases of the kind. Bearing in mind that the property had an estimated rental value of, for example, EUR 7,700 in 2016 ‑ 2018 and EUR   5,250 as of 2010, the Court considers that the compensation awarded for a violation persisting for over a decade was not adequate. This consideration suffices to find that the redress provided by the domestic court did not offer sufficient relief to the applicant, who thus retains 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. 7 .     The Court also dismisses the Government’s objection of non ‑ exhaustion of domestic remedies (in so far as the applicant 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). 8.     The Court notes that the additional domestic judgments 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 law cases on their own merits, taking into account the facts of each case. 9.     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, awarding adequate compensation (see Tabone v. Malta (dec.) [Committee], no.   23107/20, §§10-13, 28 March 2023), 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 (see Grima v. Malta [Committee], no.   38660/20, §§ 6 and 9, 22 September 2022) while the other amounting to an adequate amount of compensation (see Psaila v. Malta (dec.) [Committee], no. 33257/20, § 11, 11 July 2023). The next case where compensation was increased by the Constitutional Court is dated 20   July 2020 [3] , that is one day before the applicant’s first-instance judgment was delivered, but again the compensation terms in that case were not adequate (see Cachia and Others v. Malta [Committee], no. 6335/21, § 9, 24   October 2023). The next cases where compensation was increased were decided in October 2020, that is after the expiry of the time-limit for the applicant to appeal. Thus, even assuming that, by the end of 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 applicant could not have been expected to lodge an appeal to the Constitutional Court. 10.     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. 11.     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). 12.     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 applicant was made to bear a disproportionate burden. Moreover, as the Court has already found in the context of the objection on victim status (see paragraph 6 above), the redress provided by the domestic court did not offer sufficient relief to the applicant. 13.     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 14.     The applicant also complained under Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1 that he had not had an effective remedy capable of redressing the violation under Article 1 of Protocol No. 1. Having regard to the facts of the case, the submissions of the parties, and its findings above, as well as 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 15.     The applicant contended that in order to satisfy the general rule of restitutio in integrum , on the basis of the expert report and the criteria established in Cauchi (cited above) he ought to have received pecuniary compensation of 31,710 euros (EUR); thus he was still due EUR 16,710. He further claimed non-pecuniary damages which he considered should have amounted to EUR 7,000, of which he had only got EUR 5,000. He further made an unquantified claim for costs incurred before this Court, attaching amongst the documents a bill of EUR 3,264.19. 16.     The Government submitted that no further compensation was due and that the costs had neither been quantified nor substantiated as, in their view, no document was presented. 17.     Having made all the considerations applicable in this type of cases, as set out in Cauchi (cited above, §§   102-07), and noting, in particular, that the award of the Civil Court (First Hall) in its constitutional competence remains payable if not yet paid, the Court awards the applicant EUR   16,000 in pecuniary damage and rejects the claim for non ‑ pecuniary damage which can be considered covered by the domestic award. Having regard to the manner in which it was filed, the Court rejects the claim for costs for the proceedings before the Court. 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 applicant, within three months, EUR 16,000 (sixteen thousand euros), in respect of pecuniary damage; (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; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 16 January 2024, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Dorothee von Arnim   Pauliine Koskelo   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).