CASE OF APAP BOLOGNA v. MALTA
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 of Protocol No. 1 - Protection of property)
András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1944 and lives in Sliema. 6. The applicant is the owner of a property named “London” at 1 Moroni Street, Gzira, Malta (a two-storey house, with stairs allowing access to the second floor, each floor having two main rooms and a smaller room, as well as a terrace; and with further rooms on the roof (hereinafter “the property”)). Following the death of the applicant’s uncle on 16 July 1975, the applicant and another five heirs inherited his uncle’s estate, including the property. By a deed of partition of 30 April 1980 the property was assigned to the applicant as sole owner. 7. In 1976 the property was requisitioned and allocated to P.S. In 1987 the applicant became aware that on an unspecified date P.S. had left the property and given the keys back to the authorities, and that the property had then become occupied by a certain C.C., who had no title to it (since it had not been allocated to him by the authorities). 8. The applicant complained to the Housing Authority, which, instead of condemning the illegal occupation, on 23 May 1988 issued a new requisition order, assigning the property to C.C. Subsequently, C.C. obtained a development permit to carry out alteration work to the property. The work was carried out without the consent of the applicant, as owner. 9. Throughout the years while the requisition order was in force, the applicant was meant to receive an annual rent of 40 Maltese Liras (MTL) (approximately 93 euros (EUR)) from the Housing Authority. That amount was increased to MTL 80 (approximately EUR 185) in 2010 or thereabouts. However, the Housing Authority has not been paying the applicant since 2003, nor does it transpire that the rent has been deposited in court. According to the Government, the applicant has never requested such payment from the authorities. 10. The applicant considered that those amounts were far below the rental value of the property. 11. After having written to the Housing Authority several times to no avail, on 20 October 2009 the applicant instituted constitutional redress proceedings against the Housing Authority and the Attorney General. He requested the court to find that the requisition orders had breached his rights under Article 1 of Protocol No. 1 to the Convention. Consequently, he sought to annul the order, and requested the release of the property in his favour with free and vacant possession. He also sought an award of compensation for the occupation of the premises, as well as any other relevant redress. In so far as relevant, paragraph three of his application concerning the facts of the case reads as follows: “In 1987, after the applicant had inherited the property, he discovered that a certain PS had left the property ...”. It then specified in paragraph four that “on 23 May 1988 the same authority again requisitioned the same property by means of requisition order no. 16830”. In paragraph ten the applicant noted that his rights were being breached as a result of “the requisition order mentioned above”. Lastly, his first request to the court was to the effect that the court should “declare the abovementioned requisition ... as being in breach ...” and his second request read “to annul all requisition order issued against the applicants” (tannulla l-ordni ta’ rekwizzjoni kollha rilevanti maħrugin kontra tagħhom). 12. According to the Government, when giving evidence in court on 30 November 2009, the applicant mentioned the deed of partition of 30 April 1980. At the same time he acknowledged that he did not contest the requisition order issued in 1976 (no record of this has been provided). 13. Pending the outcome of the proceedings, the court appointed an expert to make a valuation of the property. According to a report of 21 January 2010 the expert considered that the annual rental value of the property on the market in 1987 was MTL 249 (approximately EUR 580), and that in 2010 it was MTL 1,223.50 (approximately EUR 2,850). Its sale market value was estimated at EUR 95,000. 14. By a judgment of 14 July 2011 the Civil Court (First Hall), in its constitutional jurisdiction, found in favour of the applicant. It held that although the measure was lawful and pursued a legitimate aim, the applicant had suffered a breach of his property rights on account of the lack of proportionality of the measure, in so far as it made the applicant bear a disproportionate burden, given the low amount of rent applicable compared to the market rental value of the property. It held, however, that the measure was not abusive in so far as C.C. suffered from a physical disability and lived on social benefits. He thus required lodging compatible with his needs to avoid hardship and the property at issue was adequate for such purpose. 15. The court further held that the Attorney General should not have been summoned as a defendant in the case (m’huwiex leġittimu kontradittur). The applicant was therefore ordered to pay his own costs of the proceedings as well as those of the Attorney General (in total approximately EUR 2,950). 16. The court held that given that the violation had arisen solely from a lack of fair balance, it was not necessary to annul the requisition order and release the property. Referring to domestic case-law, it held: “... while this [constitutional] court has a wide latitude in giving any order it may consider relevant in order for it to safeguard Articles 33 to 45 of the Constitution and human rights and fundamental freedoms as defined in the Convention, such latitude was not unlimited and was circumscribed by the judicial system of the country, which did not allow this court [of constitutional jurisdiction] to amend national laws, nor could it make mandatory an action which according to domestic law was discretionary, nor could it order the Housing Authority to pay rent or compensation of a higher value than that provided for by the relevant law. Compensation, if any, which may be paid by this court [of constitutional jurisdiction] is that for the violation found.” 17. The court awarded the applicant EUR 21,000. sic.); for a number of years C.C. had paid the Housing Authority MTL 40 per year and it was only recently (sic.) that the rent had been increased to MTL 80; that the applicant had only received payment up until 2003; that the rental value of the property on the market in 1987 was MTL 249 (approximately EUR 580), and in 2010 it was MTL 1,223.50 (approximately EUR 2,850); and lastly, that the requisition order had been issued in the public interest to procure accommodation for those in need, and thus the compensation payable could be less than the full market value. 18. The applicant appealed, complaining that the court had failed to annul the requisition order and return the property to him despite finding in his favour. He had thus remained a victim of the situation as the court had not given him an appropriate remedy for the violation. He also complained that the compensation was far too low and had not been determined in accordance with the applicable market value. He further argued that the Attorney General had been the correct defendant given that the amount of rent depended on the law, which in consequence was also an issue in the case. It does not transpire from the written pleadings that the applicant explicitly raised the issue of compensation in relation to the years before 1988, during which he had already been an owner of the property. 19. The Housing Authority and the Attorney General also appealed. They agreed with the merits of the first-instance decision, but requested the court to reduce the award of compensation which had been awarded arbitrio boni viri and not on proper calculations, and this especially since the applicant had waited twenty years before instituting proceedings. 20. A hearing was held on 14 November 2011. 21. By a judgment of 24 February 2012 the Constitutional Court reduced the amount of compensation to EUR 16,000. It, too, considered that the applicant should be penalised for the delay (of twenty years since coming into possession of the property) in instituting proceedings, as had been done in other domestic cases. It noted that, according to European Court of Human Rights case-law, State control over levels of rent may often cause significant reductions in the amount of rent chargeable; in the circumstances of the present case it was therefore not appropriate to make awards in accordance with market values. It considered that the firstinstance court had been free to make an award equitably, and correct to make no award for the time prior to 1988, the date when the applicant had become the owner of the property (sic.) and before which he had had no ties with it. The Constitutional Court also refused to annul the order, given that it had been issued lawfully and had pursued a legitimate aim. It considered that in such circumstances it was not appropriate (mhux indikat) to release the property and to evict the tenant (as also held in previous cases, namely Carmen Cassar vs Director of Social Accommodation, Constitutional Court judgment of 12 July 2011 and Gatt vs Attorney General, Constitutional Court judgment of 5 July 2011), nor could it impose a higher rent for the future, when such rent was not provided for by law (as also held in Cassar, cited above). It reiterated that its role was limited to awarding compensation for the violation found. The same had also been held by the European Court of Human Rights. Compensation in cases of a constitutional nature was not equivalent to civil damage, which could be pursued before the courts of ordinary jurisdiction. 22. The Constitutional Court further confirmed that the proper defendant was solely the Housing Authority, and not the Attorney General, as the applicant was not contesting the constitutional validity of the law itself, but solely the requisition order issued in respect of his property. The Constitutional Court upheld the first-instance court’s order for the payment of costs and ordered the applicant to pay the costs of all the parties related to the appeal. 23. As a result of this judgment, the applicant had to pay his share of the costs of the proceedings as well as those of the Attorney General at first instance, and those of all the parties on appeal.