CEDH · CASELAW;COMMUNICATEDCASES;ENG — 11 décembre 2019

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .sDAD2B73A { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s76334B44 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s1F60D4D { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; text-indent:-15pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sB853CD26 { font-family:Arial; font-size:8pt } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } Communicated on 11 December 2019   THIRD SECTION Application no. 14013/19 Catherine CAUCHI against Malta lodged on 11 March 2019 STATEMENT OF FACTS The applicant, Ms Catherine Cauchi, is a Maltese national, who was born in 1941 and lives in Valletta. She is represented before the Court by Dr   M.   Camilleri and Dr E. Debono, lawyers practising in Valletta. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. Background to the case The applicant owns a property, no. 19 in Dar il-Bebbux Street, Ħal   Għaxaq. On 24 February 1967, the applicant rented (under title of temporary emphyteusis) the property to a third party, for seventeen years, at 25   Maltese liras (MTL) (approximately 58 euros (EUR)) per year. The third party rented the property under title of sub ‑ emphyteusis to another third party who did the same. The sub ‑ empyhteutae on the date of the termination of the emphyteusis, i.e. 26 February 1984, were a certain couple A. who used it as their sole ordinary residence and for this purposes undertook substantial works to make the place habitable. On an unspecified date, couple A. relied on Act XXIII of 1979 amending Chapter   158 of the Laws of Malta, the Housing (Decontrol) Ordinance (hereinafter “the Ordinance”), to retain the property under title of lease, at the rent increased according to the index of inflation but never exceeding double the previous rent, until 26 February 1999. As of 27 February 1999, according to law the rent was to increase to MTL 100 per year, however couple A. continued to pay MTL 50 per year, as the applicant did not seek to increase the rent. With the introduction of Act X of 2009 couple A. started paying EUR   185 per year, as of 1 January 2010. According to law, on 1   January 2013 they started paying EUR 197.31 until 31 December 2016, and as of 1   January 2017 the rent was increased to EUR 200. During the tenancy the couple did not own any other property. Mr A. was on a low wage and was, for some time, unemployed. He is today retired, and receives a pension of EUR 515 a month. Constitutional redress proceedings In 2017 the applicant instituted constitutional redress proceedings claiming that the provisions of the Ordinance as amended by Act XXIII of 1979 ‑ which granted tenants the right to retain possession of the premises under a lease ‑ imposed on her as owner a unilateral lease relationship for an indeterminate time without reflecting a fair and adequate rent, in breach of, inter alia , Article 1 of Protocol No. 1 to the Convention. She requested the court to award compensation for the damage suffered as from 1984 and to order the eviction of the tenants. The applicant argued that prior to 1979 she had had no other option than to rent the property under title of temporary emphyteusis, in order to avoid it being requisitioned as was common at the time. According to the Government’s expert, at the time of the drawing up of the report (2017), the property as refurbished (in relation to water electricity and drainage system) was valued at EUR 174,000 and had a rental value of EUR   398.75 monthly (EUR 4,785 annually). According to the court-appointed expert the sale value in 2017 was EUR   165,000 and the annual rental value was estimated as being in 1984 EUR   701, in 1989 EUR 965, in 1994 EUR 1,328, in 1999 EUR 1,828, in 2004 EUR   2,516, in 2009 EUR 3,463, in 2014 EUR 4,767 and in 2017 EUR   5,775. By a judgment of 31 October 2018 the Civil Court (First Hall) in its constitutional competence found a violation of the applicant’s property rights, awarded EUR   20,000 in compensation and declared that the tenants (or their descendants) could no longer rely on the impugned law to maintain title to the property. In particular, the court was satisfied that the applicant had proved her title to the property and that Article 12 of the Ordinance applied in the present case. It also considered that the fact that the applicant did not raise the rent during a certain period did not prejudice her right to bring her claims before the court. On the merits, the court disagreed with the applicant’s argument that it would be impossible to ever recover her property. However, it considered that the tenants had been occupying the property for thirty ‑ four years; that the lease had not been entered into voluntarily but was imposed by Article   12 of the Ordinance, and that the difference between the market rental value and the rent received by the applicant, despite the various increases, remained “enormous if not shocking”. It was clear that the rent applicable by law was not compatible with the reality of Maltese society today or the applicable rents on the free open market. It followed that the applicant was not receiving fair and adequate compensation in exchange for the burden imposed by law. While the legislator had a right to address social issues and protect a category of citizens such as the tenants, it could not disproportionally prejudice another group of citizens (the owners). It was thus for the State to carry the responsibility for the imbalance created between the two interests at stake. Moreover, the law at issue did not provide any procedural safeguards. The court refused to order the eviction of the tenant, considering that it was not the appropriate court to take such action. In particular, it considered that, given that the interference had been lawful and that there had been a legitimate aim, to order eviction without taking into consideration other factors would shift the balance in favour of the applicant. It therefor sufficed to order that the tenants be prohibited from relying on the relevant law in any future eviction proceedings to be instituted. For the purposes of compensation, the court considered the huge discrepancy in the rent received and the market value, despite the fact that market value might not be payable in view of the legitimate aim at issue namely social housing; the uncertainty as to when the applicant would recover her property; the thirty ‑ four years during which such disproportionality persisted; and the inertia of the State in amending its legislation in order to avoid such a disproportionate burden on owners. It therefore awarded EUR 20,000 in pecuniary and non ‑ pecuniary damage. One third of the costs were to be paid by the applicant given that not all her claims had been upheld. 3.     Other information The applicant states that she did not appeal because, as had been confirmed by the European Court of Human Rights, the Constitutional Court was not an effective remedy since it systematically reduced the awards given by the first ‑ instance courts of constitutional competence. Despite the order of the first-instance court to the effect that the tenant could no longer rely on the relevant law, the applicant was unable to institute eviction proceedings due to the introduction of Act No. XXVII of 2018 which provided that despite a judgment in their favour, it shall not be lawful for the owner to proceed to request the eviction of the occupier without first availing himself of the new procedure provided by that law. Relevant domestic law The relevant domestic law is set out in Amato Gauci v.   Malta (no.   47045/06, § 19-22, 15 September 2009). Section 12B of the Ordinance introduced by Act No. XXVII of 2018 published on 10 July 2018 and which entered into force on 1 August 2018 reads as follows: “(1) Where a person is in occupation of a dwelling house under title of lease created by virtue of a previous title of emphyteusis or sub-emphyteusis which commenced before the 1st June 1995 through the application of article 5, 12, or 12A the following conditions shall, insofar as they are inconsistent with the provisions of the said articles of this Ordinance apply in respect of such lease as from the 10th April 2018 notwithstanding the provisions of the said articles of the Ordinance or of any other law. (2) The owner shall be entitled to file an application before the Rent Regulation Board demanding that the rent be revised to an amount not exceeding two percent per annum of the open market freehold value of the dwelling house on the 1st January of the year during which the application is filed and that new conditions be established in respect of the lease. (3) The procedure applicable to the hearing of applications before the Rent Regulation Board shall apply to the hearing of an application made under sub ‑ article   (1): Provided that: (i) the Housing Authority shall be notified with the application and shall have a right to fully participate as amicus curiae in the proceedings; and (ii) the tenant and the landlord shall always be entitled to the benefit of legal aid in proceedings filed in terms of this article if they are not in full ‑ time gainful employment; and (iii) at the initial stage 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 articles 1531F and 1622A of the Civil Code or any regulations from time to time replacing 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 when 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 said regulations which shall apply mutatis mutandis. (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 five years to vacate the premises. The compensation for occupation of the premises payable to the owner during the said period shall amount to double the rent which would have been payable in terms of articles 5, 12 or 12A. (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) In establishing the amount of rent payable in accordance with sub-article (1) the Board shall give due account to the means and age of the tenant and to any disproportionate burden particular to the landlord and it may determine that any increase in rent shall be gradual. The Board, after briefly hearing the parties and examining any evidence which it considers relevant, may also order that an increased amount of rent be paid whilst the hearing of an application filed in terms of sub ‑ article   (1) is pending. (7) Where an amount of rent is established in terms of sub article (1) that rent shall apply in respect of the lease of the dwelling house, unless the lease is previously terminated, for a period of six years, after which it shall be subject to being revised in accordance with sub-article (1) unless an agreement is reached between the parties. (8) (a) Upon the happening of a material change in circumstances during the continuance of a lease established in accordance with article 5, 12 or 12A the owner shall be entitled to file an application before the Board demanding that the conditions of the lease be revised on account of their causing a disproportionate burden upon him. (b) The owner may also demand the dissolution of the lease if he can prove through unequivocal evidence that the tenant is not a person in need of the social protection provided by articles 5, 12 or 12A and by this article: Provided that: (i) the provisions of paragraph (a) of this sub ‑ article shall not apply where the hearing of an application under sub ‑ article (1) is pending or has been determined for less than three years; (ii) the tenant shall always be deemed to be a person not in need of the social protection provided by articles 5, 12, 12A and by this article if the Housing Authority or the landlord offer alternative accommodation suitable to the tenant and guarantees the availability of such accommodation to the tenant for at least ten years for a rent which is not in excess of that which would have been payable by the tenant had the tenant continued the lease under articles 5, 12 or 12A. (9) (a) Any person who has a right to be recognised as a tenant in terms of the proviso to the definition "tenant" in article 2 shall, unless the said is a person referred to in paragraph (a) of the said definition, only acquire a right to occupy the dwelling house for a period of five years upon the expiration of which he shall vacate the said dwelling house. The compensation for occupation of the dwelling house payable to the owner during the said period shall, unless the occupier meets the income and capital criteria of the means test referred to in paragraph (iii) of sub ‑ article   (3), amount to double the rent which would have been payable in terms of articles 5, 12 or 12A. (b) Any dispute as to whether the occupier meets the criteria of the means test may be referred by either party to the Board by application and the provisions of sub ‑ article (3) shall apply. (10) The provisions of article 1555A of the Civil Code shall apply in respect of any lease which came into effect by virtue of articles 5, 12, 12A or this article. (11) The provisions of this article shall also apply in all cases where any emphyteusis, sub ‑ emphyteusis or tenancy in respect of a dwelling house regulated under articles 5, 12, or 12A has lapsed due to a court judgment based on the lack of proportionality between the value of the property and the amount receivable by the landlord and the person who was the emphyteuta or the sub ‑ emphyteuta or the tenant still occupies the house as his ordinary residence on the 10th April 2018. In such cases it shall not be lawful for the owner to proceed to request the eviction of the occupier without first availing himself of the provisions of this article.” COMPLAINTS The applicant complains under Article 1 of Protocol No. 1 alone and in conjunction with Article 13 of the Convention that she was still a victim of the violation of Article 1 of Protocol No. 1 upheld by the domestic court given the low amount of compensation awarded as well as the fact that there had been no order to evict the tenants. She also considered that constitutional redress proceedings were not an effective remedy for the purposes of Article 13. This was even more so given the introduction of Act   No. XXVII of 2018 which impeded the execution of the judgment in her favour, as a result of which the applicant considered that she was also suffering a breach of Article 6 § 1 of the Convention.     QUESTIONS TO THE PARTIES 1.     Has there been a violation of Article 1 of Protocol No. 1 to the Convention (see Amato Gauci v. Malta , no. 47045/06, 15   September 2009)?   2.     Did the action of the national authorities, namely the introduction of Act No. XXVII of 2018, and in particular its Section 12B (11), interfere with the enforcement of a judicial decision in favour of the applicant, unduly delaying and possibly preventing its execution, in breach of Article   6 § 1 of the Convention (see Immobiliare Saffi v. Italy [GC], no.   22774/93, ECHR 1999 ‑ V)?   3.     Did the applicant have at her disposal an effective domestic remedy for her complaints under Article 1 of Protocol No. 1, as required by Article   13 of the Convention (see Apap Bologna v. Malta , no.   46931/12, 30   August 2016)?