CEDH · CASELAW;COMMUNICATEDCASES;ENG — 21 mars 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s76CF415B { page-break-before:always; clear:both } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sA6F92854 { width:103.12%; border-collapse:collapse } .s321E263B { height:27.6pt } .sDB62503A { width:8.64%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sD35D798C { font-family:Arial; font-size:8pt; font-weight:bold; vertical-align:super; color:#474747 } .s374003A0 { width:33.18%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s4D686973 { width:17.6%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sE56A8EFE { width:18.72%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sD7008EB6 { width:21.86%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sAC906416 { width:8.64%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s6B505E72 { margin:0pt; padding-left:0pt } .s74DC3D21 { margin-left:33.01pt; padding-left:2.99pt; font-family:Arial; font-size:12pt; font-weight:bold } .s40138558 { width:33.18%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sEA39543F { width:17.6%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sF615212F { width:18.72%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sA5F87864 { width:21.86%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top }   Communicated on 21 March 2018   FOURTH SECTION Application no. 40435/16 Carmel GALEA and others against Malta lodged on 11 July 2016 STATEMENT OF FACTS A list of the applicants is set out in the appendix. They are represented before the Court by Dr S. Grech and Dr I. Refalo, lawyers practising in Valletta, Malta. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. 1.     Background to the case The applicants are the heirs of N.G. who was the owner of the premises numbered 18, Old Mint Street, Valletta. N.G had granted these premises on temporary emphyteusis on 19   November 1962 in favour of a third party (J.L.C.), for a period of seventeen years. Allegedly J.L.C. transferred the utile dominium of these premises to J.B. and his wife (hereinafter “spouses B.”) in 1977 without the knowledge or consent of N.G. The emphyteutical grant came to an end on 19   November 1979 but spouses B. continued to retain the property. It transpires from the documents submitted to the Court that the premises were requisitioned by the State in April 1974 (by means of Requisition Order no.   7330) and allocated to spouses B. 2.     First set of ordinary proceedings and constitutional reference proceedings In 1982 N.G. filed ordinary proceedings (no. 342/1982) requesting the eviction of spouses B. on account of a lack of title to retain the premises given that the emphyteusis had expired. On 26 May 1987 the claim was rejected. The court held that spouses B could remain in the property by title of lease in virtue of Act XXIII of 1979 which amended the Housing (Decontrol) Ordinance (now Chapter 158 of the Laws of Malta). N.G. appealed against this judgment. During the appeal proceedings, a constitutional reference (no.   303/1990) was made as a result of N.G.’s claim of unconstitutionality of the intervening law (i.e. the relevant provisions of Act XXIII of 1979). The reference was decided at first instance on 28 October 1994 and confirmed by the Constitutional Court 30 November 2001. The Constitutional Court found that the law allowing spouses B. to retain the property under a lease even after the expiry of the emphyteusis was not in breach of the Constitution. Following the conclusion of the constitutional reference proceedings, on 16   April 2004 the Court of Appeal confirmed the decision of the lower court finding that for as long as the requisition order remained in place N.G. could not propose a claim to regain possession of the premises as had no locus standi to file such a case, because the effect of a requisition order was to vest possession in the requisitioning authority. Furthermore, spouses   B. could validly claim a title of lease under Article 12 of Chapter 158 of the Laws of Malta despite the fact that a requisition order was in place. 3.     Second set of ordinary proceedings In the meantime, despite several requests, neither the applicants nor their predecessor in title ever received any compensation for the occupation of the premises. Neither did they ever recognize spouses B. as tenants. In consequence on 28 May 2008 the applicants filed a new claim (no.   542/2008) before the Civil Court, (First Hall), in its ordinary jurisdiction requesting the court to order the payment of the compensation due to them according to law for the occupation of the premises, and requested the court to appoint an architect to inspect the premises and liquidate damages owing to the deterioration of the property. By a judgment of 30 October 2012 the court found that the property had not been taken care of throughout the years during which it had been requisitioned and that the necessary ordinary maintenance had not been carried out. It awarded the applicants the sum of 77,133.60 euros (EUR) by way of damages for the repairs needed to the property (based on the valuation drawn up by the court-appointed architect). The court also awarded the applicants the sum of EUR 16,217.09 representing the compensation due according to law for the occupation of the premises under the requisition order (until 28 May 2008, date of their application before the constitutional jurisdictions) together with interest. As no appeal was lodged, the judgment of 30 October 2012 became final. 4.     Subsequent events In the meantime, the premises were derequisitioned on 12 March 2012. However, the keys were not returned to the applicants until 10   July 2013, after the applicants filed the proceedings mentioned below. According to the applicants, the keys were eventually handed over because spouses   B. were no longer residing in the property and had virtually abandoned it. The compensation awarded by the judgment of 30 October 2012 was also not paid until 31 May 2013, after the applicants filed the proceedings mentioned below. 5.     Proceedings before the Rent Regulation Board On 21 March 2013 the applicants filed proceedings before the Rent Regulation Board (hereinafter, the “RRB”) (no. 25/20131) for the eviction of the tenants. Once the keys were handed over to the applicants, the latter declared that they had no further interest in the case and requested the RRB to determine which party should bear the costs of the case. By a judgment of 14   November 2013 the RRB decided that the applicants were to bear all the costs of the proceedings. 6.     Second set of constitutional redress proceedings On 21 March 2013 the applicants also filed constitutional redress proceedings (no. 28/13) claiming that their rights as protected by Article   1 of Protocol No. 1 to the Convention and Article 37 of the Constitution were being breached. The applicants claimed that the violation resulted from the fact that they had been deprived of the possession of their premises for a very long time, at first due to the requisition order and subsequently due to the fact that spouses B. continued to detain the premises under a title of lease arising out of Chapter 158 of the Laws of Malta. Moreover, the authorities had failed to pay them any compensation whatsoever, not only the compensation liquidated according to the law regulating requisitioned premises (i.e. the EUR 16,217.09 awarded by the domestic court on 30   October 2012), but also such compensation as should reflect the real rental value of the property. The applicants complained that there was a disproportionate difference between the amount of rent established by law and the rental value of the property on the market. The applicants requested the court to liquidate compensation for the occupation of the premises between 20 February 2008 [in their application to the ECtHR the applicants acknowledged that this date should have read 28   May 2008, date when they lodged ordinary proceedings for compensation] until 21 March 2013 (as amended at a later stage in the proceedings). During these proceedings a court-appointed technical expert had estimated its rental value for the residential purposes it was used for, over the period of 21 February 2008 to 10 July 2013, as being EUR   18,297, while the additional court-appointed architects had computed the total rental value of the property for the years 2008 to 2013 as amounting to EUR   55,251. By a judgment of 16 April 2015 the Civil Court, (First Hall), in its constitutional competence rejected the applicants’ claims and ordered them to pay the costs of proceedings. It held that the applicants had ordinary remedies to obtain the compensation awarded to them by a court judgment as well as to regain the keys of the property - which in any event did not amount to a breach of their rights - and to obtain the losses incurred in water and electricity bills, which claim had in any event not appropriately been put forward. As regards the claim that the violation had also arisen from the fact that, following the termination of the temporary emphyteusis on 19   November 1979, spouses B. continued to detain the property in virtue of Chapter 158 of the Laws of Malta, the court found that this claim had already been rejected by the Constitutional Court in proceedings culminating in the judgment of 30 November 2001. The applicants appealed. They noted that the court had misunderstood the period for which compensation had been claimed and the period for which compensation had been awarded in the course of proceedings no.   542/2008. The applicants pointed out that they were claiming compensation for a period regarding which there had not yet been any judicial pronouncement. The award made in proceedings no.   542/2008 had covered only the period of requisition up until the date of lodging of that case, while they were in these proceedings requesting compensation for the period subsequent to that date. They further claimed that the first ‑ instance court had, without good reason, rejected their claim to be reimbursed for the water and electricity bills paid by them, which referred to the period when the property was occupied by spouses B. They noted that the property had been returned to the applicants in 2013 with these bills still unpaid. By a judgment of 12 February 2016 the Constitutional Court found a violation of the applicants’ property rights and liquidated the compensation due to the applicants for the period between 28 May 2008 and 10   July 2013. Costs were to be paid by the defendants. The Constitutional Court noted that it was true the applicants had had ordinary remedies which they failed to pursue; however, the first-instance court had ultimately decided the merits of their case. As regards the violation it held that, between the period which commenced on 28 May 2008 and ended on 12 March 2012 it was the Housing Authority which had to bear the consequences of the violation since during this time the premises were requisitioned and in the possession of the requisitioning authority. Whereas for the period running from 13   March 2012 until 21 March 2013 (date when the constitutional proceedings no.   28/2013 were lodged) it was the Attorney General who had to respond given that this part of the claim was founded on Chapter 158 of the Laws of Malta. The Constitutional Court also accepted the applicants’ argument that the previous constitutional case by means of a reference from another court (no.   303/1990) had not dealt with the same merits because the constitutional reference proceedings had only addressed the point as to whether the amendments introduced by Act XXIII of 1979 were in violation of Articles   37 and 47(9) of the Constitution of Malta, but not whether they had been in breach of the Convention provisions. In determining the compensation due to the applicants, the Constitutional Court considered that the judgment of 30 October 2012 had awarded the sum of EUR 16,217.09 to cover a period of thirty-four years, which yielded an average rate of EUR 477 per annum. The Constitutional Court observed that applying this rate to the five year period running from 28   May 2008 until 10 July 2013 would yield compensation in the amount of EUR   2,385. It observed that the court-appointed additional architects had computed the total rental value of the property for the years 2008 to 2013 ‑ taking the property as existing in its current state ‑ as amounting to EUR   55,251. The court noted that the violation of the applicants’ rights was manifest since they had been deprived of the possession of their property for an unreasonably long time without receiving compensation and thus the compensation due ought to be higher than EUR 2,385 (which amount was based on the rents fixed by law). However, it noted that owing to the social aim of the measure in question the compensation due did not necessarily correspond to the value determined by the court-appointed architects. It thus considered that EUR   3,500 covering both pecuniary and non-pecuniary damage, that is, as compensation for the occupation of the premises and compensation for the violation suffered, was appropriate redress. It dismissed the applicants’ claim concerning water and electricity bills considering that the bills referred to a period in 2014 following spouses B.’s departure. B.     Relevant domestic law The relevant domestic law in relation to the conversion from temporary emphyteusis to lease by means of the operation of Act XXIII of 1979 is set out in Amato Gauci v. Malta , (no.   47045/06, §§ 19-25, 15   September 2009) and that concerning requisitions, is set out in Ghigo v. Malta (no.   31122/05, §§ 18-24, 26 September 2006). COMPLAINT The applicants complain that the award by the Constitutional Court which i)   reflected one fifteenth (1/15) of the real rental value of the property on the market and was based on the poor condition of the property (through no fault of the owners) at the time of the valuation; and ii)   had not taken account of the fact that the tenant was not in need of social protection; could not be considered as adequate compensation. They further complained about the dismissal of their claim for water and electricity bills, which were losses actually suffered by the applicants as a result of the fact that the premises were occupied by spouses B. They considered that this was a technical error as the Constitutional Court had misread the invoices. In view of the above they claimed that they were still victims of a violation of Article   1 of Protocol No.   1 to the Convention. QUESTIONS TO THE PARTIES 1.     Given the redress provided by the Constitutional Court, have the applicants obtained sufficient relief for the breach of Article 1 of Protocol   No.   1 of the Convention?   2.     Has there been a violation of Article 1 of Protocol No. 1 to the Convention (see Amato Gauci v. Malta , no. 47045/06, 15 September 2009 and Apap   Bologna v. Malta , no. 46931/12, 30 August 2016)?   Appendix     N o . Firstname LASTNAME Birth year Nationality Place of residence   Carmel GALEA 1948 Maltese Sliema   Marie Louise BUGEJA 1956 Maltese Pembroke   Isabella GALEA 1962 Maltese Msida   Margaret GALEA 1933 Maltese San Ġiljan   Paul GALEA 1936 Maltese Naxxar   Rose GALEA 1938 Maltese Gżira   Saviour GALEA 1940 Maltese San Ġwann   Paul MUSU’ 1960 Maltese Valletta   Wilfred MUSU’ 1958 Maltese Mosta