Published on 6 October 2025
FOURTH SECTION
Application no. 24092/25
Gabriella FUSCO
against Malta
lodged on 1 August 2025
communicated on 18 September 2025
SUBJECT MATTER OF THE CASE
The application concerns the Maltese rent laws in respect of which a violation was upheld by the Constitutional Court, but no pecuniary compensation was awarded.
The applicant owns a commercial (industrial) property which she inherited in 1997 as universal heir (subject to a reserved portion of a 1/6th undivided share which the applicant acquired later from her nephew), and which has been subject to the rent laws (Chapter 69 of the Laws of Malta) as of the 1960s. At the time the annual rent payable according to law was 496.93 euros (EUR) and in 2021 EUR 1,397.68 for a property estimated by a court‑appointed expert as having, in 2021, a sale value of EUR four million (in its current state but on the basis of its development potential, as well as its potential had it to be divided and subject to separate leases). Based on that estimation, the annual rental value for 1987 and 2021 was estimated at EUR 14,460 and EUR 128,000 respectively (the expert noting that substantial works would be required prior to it being in a rentable state).
The applicant instituted constitutional redress proceedings complaining that the law, particularly the low rent perceivable and the fact that the tenants were entitled to remain in the property until 2028 breached her property rights. She requested compensation and the eviction of the tenants.
By a judgment of 2 June 2023, the Civil Court First Hall found a violation of Article 1 of Protocol No. 1 to the Convention for the period 1987 until 2021 and awarded EUR 1,059,948 in pecuniary damage and EUR 10,000 in non-pecuniary damage. The former award was calculated on the basis of the principles established in Cauchi v. Malta (no. 14013/19, §§ 102-07, 25 March 2021) to which, in the specific circumstances of this case, was added a further reduction of 20% given the state of the property (which according to the architect was very bad to the extent that it was dangerous given the lack of maintenance over various decades) and the applicant’s inaction in undertaking extraordinary maintenance as required by law and seeking action against the tenants who were failing their duties of ordinary maintenance.
The applicant did not appeal, and the State appealed solely the award of pecuniary damage, raising multiple arguments.
By a judgment of 7 April 2025, the Constitutional Court upheld the appeal and awarded no pecuniary compensation. It noted that, even though the State had not presented an ex parte report, it was not bound to follow the architect’s report which it deemed totally unrealistic. The expert himself observed that “the property is in a very bad state of maintenance and the structure is generally in a dangerous state”, and in parts of it “in imminent danger of collapse” with areas to which no access can be said to exist, all due to “lack of maintenance and rainwater which has been entering for decades”. Thus, the property was not in a state to be rented out (at any rate), and the losses incurred by the applicant were not due to the law but to the state of the property. The applicant undertook no works to make it rentable, nor did she institute proceedings to evict the tenants given their failings. Thus, while she did suffer a breach of her rights, she had suffered no financial losses as a result of the law.
The applicant complains that she is still a victim of the violation upheld by the domestic court as she received no pecuniary compensation.
QUESTIONS TO THE PARTIES
1. Is the applicant still a victim of the violation of Article 1 of Protocol No. 1 to the Convention upheld by the domestic court? In particular, bearing in mind the reasons put forward by the Constitutional Court for not awarding any pecuniary compensation whatsoever for a violation which persisted over decades, has it been established that: i) the tenants had caused considerable damage to the premises, or otherwise failed to comply with the conditions of the lease, or had used the premises for any purpose other than that for which the premises were leased, so to trigger the protection afforded by Section 8 and 9 of Chapter 69, already in 1987?; ii) the premises were in such a bad state and dangerous already in 1987? In the latter case, have the tenants taken any action against the applicant to ensure the fulfilment of her duties for extraordinary maintenance as required by law or have the authorities undertaken any action within their powers in view of the dangerousness of the premises?
2. Has there been a violation of Article 1 of Protocol No. 1 to the Convention in the present case (see, inter alia, Zammit and Attard Cassar v. Malta, no. 1046/12, § 53-66, 30 July 2015)?
3. Bearing in mind the arguments raised on appeal, what is the practice at the domestic level regarding the payment of income tax on sums perceived in pecuniary damage as a result of an award made by the constitutional jurisdictions?