SECOND SECTION
CASE OF ABELA v. MALTA
(Application no. 825/21)
JUDGMENT
STRASBOURG
14 November 2023
This judgment is final but it may be subject to editorial revision.
In the case of Abela v. Malta,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Jovan Ilievski, President,
Lorraine Schembri Orland,
Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 825/21) 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 22 December 2020 by a Maltese national, Mr Anthony Abela, born in 1955 and living in Birgu (“the applicant”), who was represented by Dr M. Camilleri, 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 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 application concerns a unilaterally imposed lease under Act XXIII of 1979 amending Chapter 158 of the Laws of Malta (the Ordinance), on the applicant’s property, no. 1 Cordina Lane, St. Paul’s area, Cospicua, which he acquired following inheritance and a contract of division dated 14 June 2010. The rent being paid in 2018 was 188 euros (EUR) annually.
2. In 2018 the applicant instituted constitutional redress proceedings complaining about a violation of his property rights and requesting compensation as of 14 June 2010 as well as the eviction of the tenant.
3. According to the applicant’s expert, having considered its development potential, the property was valued in 2018 at EUR 350,000 and had a rental value of EUR 14,000 annually (based on a rental yield of 4 %). According to the State’s expert, in the same year, the property had a sale value of EUR 241,000 and a rental value of EUR 6,600 annually, based on a yield of 2.75% (given that improvements and furniture had been provided by the tenants).
4. By a judgment of 30 June 2020, the Civil Court (First Hall), in its constitutional competence, found a violation of the applicant’s property rights. Having regard to the mean between both expert reports, that is, an annual market rent of EUR 10,300, and the EUR 188 annual rent he was actually perceiving, it found that the applicant had been suffering a disproportionate burden. It awarded EUR 10,000 in compensation for both pecuniary and non-pecuniary damage (running as of 2010) but refused to evict the tenant in view of the procedure available, following the 2018 amendments, under the new Article 12 B of the Ordinance. In view of the rejection of the latter request as well as of the applicant’s plea that the law made it impossible to regain possession of the property (on the basis that in the court’s view the law only made it “difficult” to recover the property – a situation which was “rather uncertain”, but not impossible) ¼ of the costs of the proceedings were to be paid by the applicant.
5. The applicant took no action following the 2018 amendments which provided for an increase in rent or the eviction of the tenant.
6. The applicant complained under Article 1 of Protocol No. 1 to the Convention alone and in conjunction with Article 13 of the Convention that he was still the victim of the violation found by the constitutional jurisdiction, which failed to award appropriate redress and evict the tenants.
THE COURT’S ASSESSMENTALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1 tO THE CONVENTION
7. 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.
8. 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).
9. The Court notes at the outset that the parties are in dispute, on the basis of legal considerations (concerning the applicant’s ownership rights following the inheritance until the division of the property and the rights of his predecessors), about the date as from when the applicant should have received compensation. However, the Court observes that, beyond any civil law considerations which are in dispute, the applicant explicitly submitted that he suffered the interference and requested the domestic court to award compensation as of 14 June 2010. Therefore, it is only the period from that date onwards which is relevant for the present case.
10. The Court observes that the domestic court has acknowledged the violation and awarded EUR 10,000 in compensation. The Court takes note of the domestic court’s reflections concerning the two ex parte expert reports and makes them its own, despite some minor discrepancies in the State’s expert report. However, even in view of those considerations it finds that the sum awarded for a property having a mean rental value of, for example, around EUR 10,300 annually in 2018, for a violation persisting for over seven years was not adequate. This is even more so when the same sum was also meant to cover non-pecuniary damage. 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.
11. 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).
12. 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.
13. 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 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 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 on the day of the expiry of the applicant’s time‑limit to appeal (twenty running days from the first-instance judgment of 30 June 2020). 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 applicant could not have been expected to lodge an appeal to the Constitutional Court.
14. 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.
15. 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).
16. 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 paragraphs 9-10 above), the redress provided by the domestic court did not offer sufficient relief to the applicant.
17. 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
18. 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
19. The applicant claimed 89,440 euros (EUR) in respect of pecuniary damage (i.e. rental losses from 1979 to 2020 amounting to EUR 181,200 on the basis of his own ex parte expert report, to which were applied the relevant deductions based on Cauchi, cited above), EUR 10,000 in non‑pecuniary damage and EUR 950.58 in domestic court costs plus tax according to the taxed bill of costs amounting to EUR 1,384,90.
20. The Government considered that the relevant period concerned 2010‑2018 as thereafter it was only due to the applicant’s inaction that the rent remained unchanged and that it would be unjustified to rely on the values estimated by the applicant’s ex parte architect while ignoring the State’s own report. They thus considered the applicant’s claim to be excessive, nor were any costs due given the rejection of his claim at the domestic level.
21. The Court has taken note of the considerations in relation to the two expert reports and 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, and that the only relevant period in the present case is that of 2010-2018, the Court awards the applicant EUR 10,000 in pecuniary damage and rejects the claim for non‑pecuniary damage which can be considered covered by the domestic award. Bearing in mind all the circumstances of the case, the Court finds no reason to reject in its entirety the claim for costs incurred at the domestic level. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,000 covering domestic court costs in toto.
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, the following amounts:
(i) EUR 10,000 (ten thousand euros), in respect of pecuniary damage;
(ii) EUR 1,000 (one thousand euros), 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 applicant’s 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 Jovan Ilievski
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).
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