SECOND SECTION
DECISION
Application no. 20064/21
Henry DEGUARA CARUANA GATTO and Madeleine GERA
against Malta
The European Court of Human Rights (Second Section), sitting on 22 May 2023 as a Chamber composed of:
Arnfinn Bårdsen, President,
Jovan Ilievski,
Egidijus Kūris,
Pauliine Koskelo,
Lorraine Schembri Orland,
Diana Sârcu,
Davor Derenčinović, judges,
and Hasan Bakırcı, Section Registrar,
Having regard to the above application lodged on 15 April 2021,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Henry Deguara Caruana Gatto and Ms Madeleine Gera, are Maltese nationals, who were both born in 1960 and live in Valletta. They were represented before the Court by Dr M. Attard Montalto and Dr D. Aquilina, lawyers practising in Valletta.
The circumstances of the case
1. The facts of the case, as submitted by the applicants, may be summarised as follows.
Background to the case2. The first applicant became the full owner of an eighteenth-century palazzo situated at 59, East Street, Valletta (‘the property’), following a contract of partition of 3 November 2016 (dividing the inheritance left to the first applicant and his siblings in 2014). The second applicant is his wife.
3. The case concerns a unilaterally imposed lease under Act XXIII of 1979 amending the Housing (Decontrol) Ordinance, Chapter 158 of the Laws of Malta (hereinafter ‘the Ordinance’) affecting the property as of end of February 2000, when the temporary emphyteusis contract (the first applicant’s ancestors had had with the tenants since 1962) came to an end and was transformed into an indefinite lease by operation of law (Act XXIII of 1979).
4. In 2000 the rent payable by the tenants was 699 euros (EUR) annually which, according to the law, was only subject to further increases every three years according to the cost-of-living index. It increased to EUR 767 annually in 2018.
5. One of the tenants passed away in 2015 and his wife continued the tenancy, at the time their multiple jointly held properties were worth in excess of EUR 5 million. According to the applicants these properties had already been held by the tenants in 2000, they therefore were not in need of social accommodation.
Constitutional redress proceedings6. On 5 April 2018 the applicants lodged constitutional redress proceedings complaining that Article 12 (2) of the Ordinance, imposing on them a forced lease for an indefinite time, at an extremely low rent, in the absence of any procedural safeguards, was in breach of their property rights as held in Amato Gauci v. Malta (no. 47045/06, 15 September 2009). They asked the court to award compensation from 1 January 2007 (sic.) until the date of their request, as well as the eviction of the tenant. Upon being granted permission by the court, they later complained about Article 12B of the Ordinance introduced via the 2018 amendments (see paragraph 20 below).
7. The property’s market value according to the court-appointed expert was EUR 2.9 million in 2018, and its annual market rental value in that same year was EUR 72,000. The annual market rental value in 2014 was EUR 61,200, that in 2010 EUR 55,200, in 2005 EUR 44,400 and in 2000 EUR 30,000.
(a) The first-instance judgment
8. By a judgment of 5 June 2020 the Civil Court (First Hall), in its constitutional competence, found that the second applicant had no standing in the proceedings as she was only the wife of the first applicant, but not the owner of the property.
9. It further found a violation of Article 1 of Protocol No. 1, in respect of the first applicant, in relation to the application of Article 12 (2) of the Ordinance as of 2000 which had made him suffer a disproportionate burden. It considered that the law had a legitimate aim, even though certain people had benefitted of this regime despite them not being in need. In the present case it had clearly been shown that the tenant was a millionaire, but it was not clear when this came to be. Thus, as to compensation, it awarded the first applicant EUR 60,433 in pecuniary damage and EUR 9,000 in non-pecuniary damage, for the year 2017, noting that the first applicant who became a full owner in 2016 had waited a further two years to institute proceedings, and that his siblings or mother, earlier, had undertaken no proceedings. Moreover, following the 2018 amendments he had had the possibility to institute proceedings before the Rent Regulation Board (‘RRB’) to obtain a higher rent as of the date of lodging that request, and it was not for the State to pay sums related to that period if the applicant chose not to undertake those proceedings, thus the year 2018 and subsequent years were to be excluded from the compensation award.
10. It rejected the complaint in relation to the newly introduced Article 12B (of 2018) of the Ordinance which it considered did not breach the applicant’s property rights, quite the contrary since it was aimed at providing a system with relevant safeguards to replace the one which had been found to be in breach of the Convention. It also considered that the request for eviction had been premature as an ordinary remedy under the new Article 12B (of 2018) existed for that purpose. Moreover, eviction was a matter falling within the competence of the ordinary courts not the constitutional ones.
11. The plaintiffs were to pay part of the costs in relation to their failed claims, in particular in so far as they had requested damage from the tenants.
(b) The appeal judgment
12. The first applicant appealed in relation to the compensation which was awarded, arguing that it should have been not less than EUR 450,000 (approximately half the estimated losses), as well as the order of costs and in relation to the lack of an order for the eviction. He considered that he should not be obliged to suffer the effects of the new Article 12B (11), being applied retroactively, before evicting the tenants.
13. By a judgment of 23 November 2020, the Constitutional Court confirmed the judgment at first instance, rejecting the applicant’s appeal save in the part relating to compensation. It increased the pecuniary damage to EUR 300,000 while it confirmed the award of EUR 9,000 in non-pecuniary damage.
14. In awarding compensation, the Constitutional Court considered that in view of the estimates of the court-appointed expert in relation to the rent which the owner could have received from the year 2000 to 2018 the award of the first-instance court had certainly been too low. Moreover, while legitimate aims such as the social protection of tenants were of relevance, and the impugned law had certainly pursued those aims, in the present case the tenants were wealthy individuals, who obtained such protection only due to the faults in the law which had failed to provide that only needy individuals obtained such protection. This fact further impinged on the disproportionality in the present case. Bearing in mind this heightened disproportionality; the difference between the rent received by the owners and what could have been received on the open market; the duration of the violation in respect of the applicant and his ancestors resulting from this disproportionality; the inertia of the State to remedy the situation despite numerous judgments of the domestic courts and the European Court of Human Rights (ECtHR); the rent which was paid over the relevant period and which was to be deduced from the compensation award; and also the repairs undertaken at the expense of the tenants which had increased the value of the property to the benefit of the applicant, the sum of EUR 300,000 was more appropriate.
15. The Constitutional Court rejected the other grounds of appeal and refused to evict the tenant. It considered that the new Article 12B (of 2018) of the Ordinance provided a new procedure which constituted an adequate remedy for the period following 2018, in so far as it could evict the tenant (if not worthy of protection as claimed in the present case) and/or increase the rent, and that the criteria applicable to that procedure could not be considered in violation of the owners’ rights. In particular, it considered that the rent which could be awarded by the RRB under the new amendments, namely 2 % of the sale value (which was similar to that applied by the court-appointed expert of 2.5%), was adequate bearing in mind that rent values, based on a percentage rent, were dependent on supply and demand. Moreover, the 2 % capping was adequate given that such measures had remained in place only for people deserving social protection. It followed that the new Article 12B (of 2018) had introduced an adequate mechanism which created a fair balance between the competing interests, namely those of the owners and those of persons in need of social accommodation. It further noted that the provision introduced in 2018 had been introduced pending proceedings only to address repetitive breaches of human rights found at the domestic level and before the ECtHR in respect of persons in the applicant’s position. It was also intended to regulate the future situation and had no impact on the past violation. Therefore, it had had no retroactive consequences.
Subsequent proceedings16. In the meantime, on 8 July 2020, the first applicant had instituted proceedings before the RRB to bring the lease to an end and to evict the tenants who were not in need of social accommodation and thus did not require State protection (Article 12 (8) as applicable after the 2018 amendments and prior to the 2021 amendments). He further asked the RRB to order the relevant means test, and to order the tenant to pay him damage, in the form of loss of rent, as of 21 February 2018. During the proceedings the first applicant insisted that the tenant had various other properties, while the tenant, an 80‑year-old woman, rebutted that none of them had been vacant and available for her to move into (many of them also being affected by imposed leases and the relevant rent laws).
17. Proceedings were still pending when the 2021 amendments were introduced (see paragraph 21 below), the latter were therefore applicable.
18. In line with the new Article 12B (10) of the Ordinance as amended in 2021, the tenant having admitted to exceeding the income required to fulfil the means test, by a judgment of 29 July 2021 the RRB ordered her to vacate the property within two years. During these proceedings the property was valued by the technical members of the RRB as having a sale value of EUR 2.1 million in 2020, and bearing in mind that the law - as amended in 2021 - provided no capping as to the rent to be applied in cases where the tenant had not fulfilled the means test, the RRB considered that the annual rent due to the owner should be of EUR 52,500 a year, that is 2.5 % of its market value. It thus ordered the tenant to pay a rent of EUR 2,000 monthly for the first three months (as of that date until 30 October 2021), and EUR 4,375 for the remaining twenty-one months. It rejected the remainder of the requests.
19. On appeal by the tenant, the judgment was confirmed by the Court of Appeal on 20 April 2022.
RELEVANT LEGAL FRAMEWORK
20. The relevant domestic law is set out in Amato Gauci v. Malta (no. 47045/06, §§ 19-22, 15 September 2009) and Article 12B of the Ordinance, which was introduced by Act No. XXVII of 2018 published on 10 July 2018 and entered into force on 1 August 2018 is set out in Cauchi v. Malta (no. 14013/19, § 22, 25 March 2021).
21. Article 12B of the Ordinance was again amended by Act No. XXIV of 2021, published on 28 May 2021, and reads as follows:
“1) When a person is in occupation of a dwelling-house on the basis of a title of lease, which may have also been established on the basis of a preceding title of emphytheusis or sub-emphyteusis, which commenced before 1st June 1995 through the application of the provisions of this Ordinance, the following conditions shall, provided they are inconsistent with the provisions of the said articles of this Ordinance, apply in respect of such lease from 1st June 2021 notwithstanding the provisions of the said articles of this Ordinance or of any other law.
(2) The lessor shall be entitled to file an application before the Board requesting that the rent be reviewed to an amount not exceeding two percent (2%) per annum of the free and open market value of the dwelling-house on 1st January of the year in which the application is filed and in order to establish new conditions regarding the lease.
(3) (a) When the request is made by the lessor in accordance with sub-article (2) and the leased tenement is a dwelling-house, the Housing Authority shall be notified with the application and shall have the right to participate fully as intervenor in the proceedings;
(b) the tenant shall in any case be entitled to the benefit of legal aid provided by the Housing Authority in proceedings filed in terms of this article:
Provided that this shall not prejudice the rights of the lessor who shall be entitled to the benefit of legal aid provided by the Legal Aid Agency in proceedings filed in terms of this article if he is not in full-time gainful employment;
(c) at the initial stages of the proceedings the Board shall conduct a means test of the tenant, which shall be based on the means test provided for in the Continuation of Tenancies (Means Testing Criteria) Regulations issued under article1622A of the Civil Code and any regulations that may from time to time replace them. The means test shall be based on the income of the tenant between the 1st January and the 31st December of the year preceding the year in which the proceedings are commenced and the capital of the tenant on the 31st December of the said year. The means test shall be conducted with particular reference, inter alia, to regulations 4 to 8 of the Continuation of Tenancies (Means Testing Criteria) Regulations which shall apply mutatis mutandis:
Provided that when the lessor has the suspicion that the tenant may have transferred his property, both movable or immovable, with the intention of hiding these assets, he shall have the right to request that the means test on the capital assets shall go back to the 1st January 2021 and when it is established that the tenant has disposed of these assets for malicious purposes, the Board shall nonetheless take them into consideration in its means test.
(4) Where the tenant does not meet the income and capital criteria of the means test the Board shall, after hearing any evidence and submissions produced by the parties, give judgement allowing the tenant a period of two (2) years to vacate the dwelling-house. The compensation for occupation of the dwelling-house payable to the lessor during the said period shall be determined by the Board as the case maybe.
(5) Where the tenant meets the income and capital criteria of the means test the Board shall proceed according to the following sub-articles.
(6) The Board, in any case, after summarily hearing the parties and examining any evidence which it considers relevant, may also order that an increased amount of rent be paid during the hearing of a pending application filed in terms of sub-article (1).
(7) When the rent amount is established in accordance with sub-article (2), that rent may increase according to the regulations published by the Minister responsible for housing from time to time:
Provided that the demand for this increase shall be without prejudice to the lessor’s right to request the revision of the rent in accordance with sub-article (2), after a period of six (6) years from when the new rent would have been fixed in accordance with the same sub-article (2), unless an agreement is reached between the parties.
(8) The lessor may, whenever it transpires that the economic circumstances of the tenant have changed, file a new application before the Board wherein he requests that a new means test of the tenant is conducted according to paragraph (c) of sub-article (3) and if the tenant does not satisfy the income and capital assets criteria of the means test, the Board shall decide the case in terms of sub-article (4).
(9) The provisions of this article shall also apply to cases wherein a community of property on the dwelling-house exists and the tenant is a co-owner of the same dwelling-house. When this is the case the Board shall consider the tenant’s share in the leased dwelling-house and subtract any part of the new rental amount payable by him to the other co-owners proportionally.
(10) The provisions of this article shall also apply in every case when the lessor has commenced proceedings with the aim of requesting an increase in the rent under this law, as was applicable before the 1st June 2021.”
COMPLAINTS
22. The applicants complained under Article 1 of Protocol No. 1 to the Convention, alone and in conjunction with Article 13, that they were still victims of the violation upheld by the domestic courts. They further complained that the new Article 12B of the Ordinance under the 2018 and 2021 amendments did not constitute an adequate remedy to the persistent situation.
THE LAW
The second applicant23. In so far as the application to the Court was also lodged by the second applicant, the Court observes that the Civil Court (First Hall) dismissed her application on the basis that she had no standing in those proceedings (see paragraph 8 above). Neither she nor her husband appealed against that part of the decision (see paragraph 12 above). It follows that the complaint under Article 1 of Protocol No.1 alone in respect of the second applicant is inadmissible for non‑exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention. That decision being dated 5 June 2020 and the application having been lodged on 15 April 2021, her complaint under Article 13, even if not inadmissible for any other reason, is inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 and must be rejected pursuant to Article 35 § 4 of the Convention.
The first applicant24. The first applicant complained under Article 1 of Protocol No. 1 to the Convention, alone and in conjunction with Article 13, that he was still a victim of the violation upheld by the domestic courts until 2018, as he should have been awarded full compensation (as of 2000), given that there was no legitimate aim behind the measure. He considered that according to the court‑appointed expert report the rent he could have been paid, on an open market, between February 2000 to April 2018 amounted to EUR 843,704, while that until 23 November 2020 (date of the judgment of the Constitutional Court) would have amounted to EUR 1,037, 927, while the Constitutional Court had only awarded EUR 300,000 in pecuniary damage. The non‑pecuniary award had also been low. He further noted that the Constitutional Court had not prevented the continuation of the violation. He considered that the violation could not be considered to have come to an end given that Article 12B introduced in 2018 could not be considered as an adequate remedy as noted by the Court in Cauchi (cited above).
25. The Court reiterates that the adoption of a measure favorable to the applicant by the domestic authorities will deprive the applicant of victim status only if the violation is acknowledged expressly, or at least in substance, and is subsequently redressed (see Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999‑VII, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178 et seq. and § 193, ECHR 2006‑V, and Kurić and Others v. Slovenia [GC], no. 26828/06, § 259, ECHR 2012 (extracts)). Whether the redress given is effective will depend, among other things, on the nature of the right alleged to have been breached, the reasons given for the decision and the persistence of the unfavourable consequences for the person concerned after that decision. The redress afforded must be appropriate and sufficient. Whether an individual has victim status may also depend on the amount of compensation awarded by the domestic courts and the effectiveness (including the promptness) of the remedy affording the award (see Apap Bologna v. Malta, no. 46931/12, § 41, 30 August 2016 and the case-law cited therein). Appropriate redress in Article 1 of Protocol No. 1 cases requires an award in respect of both pecuniary damage as well as non‑pecuniary damage, which would generally be required when an individual was deprived of, or suffered an interference with, his or her possessions contrary to the Convention (ibid. § 43).
26. The Court observes that the first criterion, namely the acknowledgment of a violation, has been met, as the Constitutional Court confirmed the first-instance court judgment finding a violation of Article 1 of Protocol No. 1 to the Convention (see paragraph 13 above).
27. As to the compensation awarded, the Court makes the following observations.
28. Firstly, it considers that the award of non-pecuniary damage is adequate and in line with this Court’s awards (see, for example, Bradshaw and Others v. Malta, no. 37121/15, § 96, 23 October 2018).
29. Secondly, as to the pecuniary compensation, the Court observes that in their application at the domestic level the applicants asked the constitutional jurisdictions to award compensation as from 1 January 2007 (sic.) until the date of their request, that is, 5 April 2018. The Court considers that it is for the domestic courts to verify the limits of an applicant’s requests thereby avoiding acting ultra petita. In this connection, the Court observes that in the judgment, the Constitutional Court reiterated the applicant’s claim as being from “28 February 2000” and that it held that the violation persisted as of 2000. However, it remains unclear whether it took as a starting date 2007 for the award of compensation, despite having found that the violation existed already prior to that date. There is, however, no doubt that the claim referred exclusively to the period until 5 April 2018 and had been considered as such by the Constitutional Court. It is therefore compensation until that date which is relevant to the present case.
30. The Court observes that the award of the Constitutional Court increased the compensation granted by the first-instance court five-fold, having taken into account various relevant factors (see paragraph 14 above), in particular: - the several years over which the violation had persisted (contrary to that considered by the first-instance court) and that, while the law in itself pursued legitimate objectives, in the present case the tenants had been wealthy individuals who were not in need of such State protection. While accepting the court-appointed expert’s valuation, the Constitutional Court nevertheless bore in mind the repairs undertaken by the tenants which increased the value of the property. In this connection the Court notes that ordinary maintenance is an obligation in terms of law, thus it is only in limited circumstances, where, for example, substantial works and ameliorations have been undertaken by the tenants which clearly increased the value of the property, that this factor should be of some relevance. In the present case it is unclear what were the “repairs” referred to by the Constitutional Court and how these had in actual fact had an impact on the expert’s valuation. However, the Court also notes that the RRB architects estimated the sale value of the same property at 2.1 million, nearly a third less than what had been estimated by the court-appointed architect before the courts of constitutional competence.
31. The Court has previously held that applicants suffering the consequences of the Maltese rent laws which were found to be in breach of the Convention should be awarded just satisfaction based on a reasonable amount of rent which would have provided them with more than a minimal profit (see Fleri Soler and Camilleri v. Malta (just satisfaction), no. 35349/05, § 18, 17 July 2008, and Zammit and Attard Cassar v. Malta, no. 1046/12, § 75, 30 July 2015). In brief, when the Court awards pecuniary damage in these types of cases, it takes into account the estimates provided, where these are reasonable and realistic (contrast Bradshaw and Others, cited above, § 91, and Grech and Others v. Malta, no. 69287/14, § 76, 15 January 2019), and has regard to the information available to it on rental values in the Maltese property market during the relevant period. It then takes into account various factors, such as, the legitimate aim at play, the rent received during the relevant period, and includes interest, in order to put the applicants, as far as possible, in the position they would have enjoyed if the breach was not there (see for example, Amato Gauci, cited above, §§ 77-78, and Portanier v. Malta, no. 55747/16, §§ 63-64, 27 August 2019, concerning imposed leases under the Ordinance at issue in the present case; Apap Bologna, cited above, §§ 99-101, and Montanaro Gauci and Others v. Malta (just satisfaction), no. 31454/12, §§ 14-17, 10 October 2017, concerning requisitions; Bradshaw and Others, cited above, §§ 91-94, and Marshall and Others v. Malta, no. 79177/16, §§ 95-97, 11 February 2020, concerning leases of commercial property under Chapter 69 of the Laws of Malta).
32. In the more recent Cauchi judgment (cited above), the Court explained that, since the law at issue pursues a legitimate social policy aim, namely the social protection of tenants, such rental estimates may be reduced by around 30% on the grounds of that legitimate aim, while other public interest grounds may not justify such a reduction; Furthermore, if the property had not been subject to the impugned regime it would not necessarily have been rented out throughout the entire period. Therefore, in respect of regular residential properties, it considered that the actual losses were less than those claimed by at least 20% (see Cauchi, cited above, §§ 102-104, and the case‑law cited therein). This percentage was higher when the property was of a relevantly high standing (see Galea v. Malta, no. 28712/19, § 77, 7 October 2021), as in the present case. While the rent received by the applicants, or that applicable by law and not requested by the applicants, must be deducted, a one‑off payment of 5% interest should be added (see Cauchi, cited above, §§ 105 and 107).
33. In so far as the first applicant considered that no reduction was due in the present case given that no legitimate aim existed, the Court observes that, while no legitimate aim can be said to have existed in the present case following the failure of the tenant to fulfil the means test in the RRB proceedings (compare Cauchi, cited above, §§ 31 and 82), it cannot be said, in respect of the period examined by the Constitutional Court (2000-2018), that the law leading to the impugned measure had not pursued a legitimate aim (see Cassar v. Malta, no. 50570/13, § 53, 30 January 2018). As noted by the Constitutional Court the unfortunate situation in the present case was due to the faults in the law and its lack of procedural safeguards. These issues have been identified by this Court already in 2009 in its judgment in Amato Gauci (cited above, § 61). The question is thus mainly linked to the proportionality of the measure but may also have an impact on the compensation to be awarded (see Cassar, cited above, § 53 and 87).
34. The Court observes however that, contrary to that argued by the applicant, the Constitutional Court took this factor into account (see paragraph 14 above). In this connection, the Court considers that various factors can contribute to assessing the extent of the deductions in relation to the legitimate aim in a specific case. In particular, unlike the case of Cassar, where in 2008 the lease had been inherited by the daughter of the original tenant whose financial means showed that she had no apparent need for it and thus no reduction had applied from that year onwards, the tenant in the present case was the wife of the original tenant, who had always lived in the property and, as stated by the first-instance court, it was unclear as from when the tenants had accumulated such wealth. Thus, while the present case is a clear example of the inadequacy of the law, as stood particularly prior to the recent amendments, it would not be unreasonable to nevertheless apply some form of deduction over the relevant period in view of the legitimate aim pursued by the law.
35. Bearing in mind all the above, the Court considers that the award made by the Constitutional Court in the present case was sufficiently similar to that which it would have awarded and therefore that an adequate amount of compensation was awarded to the first applicant (compare Bartolo Parnis and Others v. Malta (dec.), nos. 49378/18 and 3 others, § 48, 24 March 2020) for the violation until 5 April 2018.
36. In so far as the applicant complained of the failure to make an order to the effect that the tenant could no longer rely on the impugned law, or to evict the tenant, the Court reiterates that in the event that a higher future rent is put in place eviction would not always be necessary. Indeed, when the measure did pursue a legitimate aim, such as the social protection of needy tenants, the adaptation of the future rent to present circumstances might be sufficient to repair the existing disproportionality and thus bring the violation to an end (see Portanier, cited above, § 48). Thus, in the absence of eviction, in order to bring the violation – already acknowledged by the domestic court – to an end, the applicant should be paid an appropriate rent for the period subsequent to the domestic judgment (see Cauchi, cited above, § 83). This is even more so if the measure no longer pursues a legitimate aim.
37. In the present case, in its decision of 23 November 2020, the Constitutional Court considered that the procedures under Article 12B introduced by the 2018 amendments were an adequate remedy to be pursued which would have allowed both the eviction of the tenant as well as a higher future rent (see paragraph 15 above). The Court observes that, some months later, in Cauchi (cited above, §§ 82-85), on the basis of a limited number of considerations and the material it had before it on that date, and without prejudice to any future findings, the Court had found that Article 12B, introduced in 2018, was not designed to deal effectively and meaningfully with the issue of the disproportionate interference arising from the applicable rent laws, which had already been recognised by the domestic courts, and – as the situation stood on that date – it could not be considered an effective remedy following the finding of a violation of Article 1 of Protocol No. 1 by the constitutional jurisdictions.
38. Since then, as evidenced by a number of applications before the Court, various cases have been decided by the RRB which could give a better picture of the situation. Moreover, the law was amended again in May 2021 – the new provisions having immediate effect – with a view to tackling some of the Court’s concerns raised in Cauchi. For example, of relevance to the present case, the Court had taken issue with the fact that, under the 2018 amendments, an unmeritorious tenant, namely one who is not in need of social protection because he or she has not fulfilled the relevant means test, would continue occupying the premises for five years, or more in practice, during which time the rent would amount to only double the – often miserly – rent which would have been payable under the Ordinance (ibid., §§ 31 and 82). The Court notes that, by way of the 2021 amendments this period was reduced to two years during which the rent to be fixed by the RRB was not subject to any capping (see Article 12B (4) as amended in 2021 at paragraph 21 above). Indeed, in the present case, according to the RRB decision of 29 July 2021, delivered within around a year of the applicant’s request (contrast, Cauchi, cited above, § 83), confirmed on appeal, the tenant must vacate the premises within two years (starting from the RRB decision), during which she was to pay EUR 2,000 monthly for the first three months, and EUR 4,375 for the remaining twenty-one months. The first applicant has not appealed that decision nor challenged, at the domestic level, the fact that he received no compensation from the State, or adequate rent from the tenant, for the period April 2018 until 29 July 2021. Thus, and until the Court is called on to examine in detail that procedure – once it has been fully undertaken by an applicant and thereafter the relevant remedies pursued in that respect – it suffices for the Court to hold, for the time being, that a new potentially effective procedure capable of evicting the tenant or putting in place a higher future rent was open to the applicant following a finding by the Constitutional Court (see also, by implication, Testa and Others v. Malta, (dec.), no. 58910/19, 7 September 2021). Moreover, it is not irrelevant that in the present case the financial claims before the constitutional jurisdictions were limited to 2018, and it was therefore that period which the Constitutional Court would have been bound to examine (see paragraph 29 above). Indeed, in the application before the Court the applicant asked the Court to be precise about the time period it was considering, indicating his intention to institute further proceedings in relation to any period still uncovered.
39. In such circumstances, the Court considers that the first applicant has lost his victim status in respect of the complaint under Article 1 of Protocol No. 1 to the Convention brought before the constitutional jurisdictions and subsequently before this Court concerning the period until 5 April 2018.
40. The complaint under Article 1 of Protocol No. 1 is therefore incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be declared inadmissible in accordance with Article 35 § 4 of the Convention.
41. The applicant also complained separately about the 2018 amendments (in the application form) and the 2021 amendments (in subsequent correspondence updating the Court about the RRB proceedings) He argued that the latter did not envisage a remedy in relation to past losses. The Court understands this argument to refer to the losses incurred in the period after the Constitutional Court judgment, until the decision of the RRB. However, as noted above, the applicant has not appealed the RRB decision, nor challenged its outcome before the constitutional jurisdictions. The Court is mindful that in this situation the applicants have to suffer the piecemeal approach by the State who has been reluctant to resolve issues which the Court found to be in breach of the Convention more than a decade ago (see, mutatis mutandis, Cauchi, cited above, § 96). However, it reiterates that when there is an effective remedy, the Court should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level (ibid., and the case-law cited therein).
42. It follows that this complaint is inadmissible for non‑exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
43. The Court reiterates that Article 13 does not apply in the absence of an arguable claim (see Maurice v. France [GC], no. 11810/03, § 106, ECHR 2005‑IX, and N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, § 240, 13 February 2020). Bearing in mind the considerations made above, it concludes that in the specific circumstances of this case, the complaint under Article 13 is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 15 June 2023.
Hasan Bakırcı Arnfinn Bårdsen
Registrar President