Published on 26 August 2024
SECOND SECTION
Applications nos. 35797/23 and 35803/23
Lee David CAMILLERI against Malta
and Nicholas CAMILLERI against Malta
both lodged on 22 September 2023
communicated on 8 July 2024
SUBJECT MATTER OF THE CASE
The applications concern an injunction on the applicants’ property which they co-owned with others.
In September 2015 X lodged eviction proceedings against the applicants.
On X’s request, in April 2018, the Court of Magistrates (COM) issued a precautionary warrant to the effect that the applicants could not sell, transfer or dispose of two named properties (the only assets of the applicants) which they owned in conjunction with others (their share in that property being valued at around EUR 180,000) so as to safeguard the payment of the alleged damage suffered by X (EUR 60,000) without prejudice to further damage that may be claimed.
In December 2019, a promise of sale having been entered into by the joint owners, the applicants asked the COM to allow them to sell the property, in exchange for EUR 60,000 which they would deposit in court. On 22 January 2020 the COM rejected their request noting that the warrant had been issued not only considering the EUR 60,000 in alleged damage suffered but also any further damage.
In February 2020 the applicants instituted constitutional redress proceedings complaining of an interference with their property rights, since the value of their share of the property subject to the injunction was three times that invoked in damage by X.
By a judgment of 18 July 2022, the court refused to take cognisance of the case considering that the applicants had failed to exhaust ordinary remedies, namely proceedings against X for damages resulting from his request for a precautionary warrant under the Civil Code or via proceedings under Article 836 (9) of the Code of Organisation and Civil Procedure (COCP).
The applicants appealed noting that to obtain damages against X his request would have had to be frivolous and vexations and questioning the use of lodging a civil action to request the revocation of the mandate.
By a judgment of 31 May 2023, the Constitutional Court confirmed that the complaint was premature varying the reasoning, in so far as it considered that an effective remedy would be one capable of annulling the warrant and not one for damage. Indeed, in the view of the State defendant, according to domestic case-law the warrant of injunction could have been challenged by an application on oath, apart from the damage the applicants could have claimed against X. According to X, the applicants could have lodged an appeal under Article 836 (5) (sic.) of the COCP. The Constitutional Court considered that it was not for it to determine whether the warrant had to be challenged by an application or an appeal, it sufficed that a remedy existed.
Pending these proceedings, the eviction proceedings came to an end on 27 April 2021 and the applicants were ordered to evict the property.
The applicants complain under Article 1 of Protocol No. 1 to the Convention about an interference with their property rights in so far as the warrant in place covered a substantial amount of money, in excess of the damages alleged.
QUESTIONS TO THE PARTIES
1. Bearing in mind the applicants’ request of 17 December 2019 to vary the warrant and the Court of Magistrates’ assessment of that request, have the applicants exhausted domestic remedies (see, mutatis mutandis, Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009)? In their replies, the parties are invited to be specific about the provisions of law which are the basis of any remedies relied on, and to substantiate their replies by case-law examples.
2. Did the interference in the present case, namely the injunction issued by the Court of Magistrates, which remained unchanged, impose an excessive individual burden on the applicants (see for the applicable general principles Karahasanoğlu v. Turkey, nos. 21392/08 and 2 others, §§ 142-52, 16 March 2021, and, mutatis mutandis, Džinić v. Croatia, no. 38359/13, §§ 67-80, 17 May 2016)?