THIRD SECTION
DECISION
Application no. 43586/16
Carmelo GRECH and others
against Malta
The European Court of Human Rights (Third Section), sitting on 2 April 2019 as a Committee composed of:
Branko Lubarda, President,
Vincent A. De Gaetano,
Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 21 July 2016,
Having regard to the declaration submitted by the respondent Government on 1 November 2018 requesting the Court to strike the application out of the list of cases and the applicants’ reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
A list of the applicants is set out in the appendix. They were represented before the Court by Dr A. Sciberras.
The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General.
The applicants complained that they were still victims of the violation of Article 1 of Protocol No. 1 upheld by the Constitutional Court for various reasons: i) 5,000 euros (EUR) (from which costs had to be deducted) was too low; ii) the rent following the 2009 amendments was also insufficient ‑ according to law the applicants were entitled to EUR 949 in total for rent from 2010‑2015, and they were due EUR 862 in total for the thirty‑two previous years; iii) there was no legitimate aim as from 2011 onwards since the tenant had failed his means test; iv) the Constitutional Court did not evict the tenant and thus the applicants have nearly no possibility of ever recovering their property.
The application had been communicated to the Government.
THE LAW
The applicants complained that they were still victims of the violation of Article 1 of Protocol No. 1 upheld by the Constitutional Court given, inter alia, the low amount of compensation awarded.
After the failure of attempts to reach a friendly settlement, by a letter of 1 November 2018 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“In the circumstances, [the] Government hereby wishes to express – by way of a unilateral declaration – its acknowledgement of the violation of Article 1 of Protocol No.1 to the Convention.
Consequently the Government is prepared to pay the applicants, jointly, the sum of EUR 22,000 as just satisfaction which it considers to be reasonable in the light of the Court’s case law, as in Amato Gauci v. Malta, no. 47045/06, 15 September 2009 and Apap Bologna v. Malta, no. 46931/12, 30 August 2016.
The Government would suggest that the above information might be accepted by the Court as any other reason justifying the striking out of the case from the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.
The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be payable within the three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the said three month period, the Government undertakes to pay simple interest on it from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
This payment will constitute the final resolution of the case.”
By a letter of 28 November 2018, the applicants indicated that they were not satisfied with the terms of the unilateral declaration as they considered that the compensation was still too low and that they continued to suffer the consequences of the applicable legal regime.
The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the case to be continued.
To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
The Court has established in a number of cases, including those brought against Malta, its practice concerning complaints about the violation of Article 1 of Protocol No. 1 arising from the applicable rent laws (see, for example, Amato Gauci, cited above, § 63, Apap Bologna, cited above, § 57, and Montanaro Gauci and Others v. Malta, no. 31454/12, § 56, 30 August 2016).
The Court notes that the sum awarded by the last‑instance court in a final judgment at the domestic level, in the present case the Constitutional Court, remains payable to the applicants (see, for example, mutatis mutandis, Gera de Petri Testaferrata Bonici Ghaxaq v. Malta (just satisfaction), no. 26771/07, § 26, 3 September 2013) as well as the sums which were deposited by the tenants with the domestic court. The Court further reiterates that it is not empowered under the Convention to direct the Maltese State to annul or revoke the requisition order (see Ghigo v. Malta, no. 31122/05, § 77, 26 September 2006) and that, in the context of a judgment, when examining Article 41 the Court would not award future losses, without prejudice to any future claims the applicants may have (see, for example, Amato Gauci, cited above, § 80).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed ‑ which is consistent with the amounts awarded in similar cases ‑ the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case‑law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 1 of Protocol No. 1 to the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 25 April 2019.
Fatoş AracıBranko Lubarda
Deputy RegistrarPresident
Appendix
Carmelo GRECH was born in 1950 and lives in Żejtun Mary Grace BROWN was born in 1949 and lives in Marsascala Margaret BUTTIGIEG was born in 1960 and lives in Marsascala George GRECH was born in 1953 and lives in Marsascala Raymond GRECH was born in 1958 and lives in Żejtun Salvatore GRECH was born in 1955 and lives in Żejtun
Full & Egal Universal Law Academy