CASE OF ANTHONY AQUILINA v. MALTA
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property)
André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
5. The applicant was born in 1948, and at the time of lodging the application lived in Milton, Ontario, Canada. 6. Malta has gone through various legislative regimes in order to regulate its housing situation. The first regime came about in 1931 and protected tenants from the termination of their leases. This was followed by the 1944 Rent Restriction (Dwelling Houses) Ordinance which, apart from regulating termination of the lease of dwelling houses, also controlled rents and the initial conditions of contracts. The Housing Act was then enacted in 1949, with the aim of providing a solution to homelessness caused by the Second World War. In 1959 the Housing (Decontrol) Ordinance, Chapter 158 of the Laws of Malta (hereinafter “the HD Ordinance”) was enacted, which provided incentives to encourage landlords to rent their property, and created a special class of dwelling houses free from rent control. 7. The applicant owns a property in Gozo (a maisonette measuring 105 square metres) which he inherited from his parents, his mother having passed away in 1984. 8. On 12 January 1960 the property was registered as a “decontrolled dwelling house” in accordance with Article 3 of the HD Ordinance. At the time, Article 5 (1) of the HD Ordinance provided that the provisions of the “Rent Ordinances” (the Reletting of Urban Property (Regulation) Ordinance, Chapter 69 of the Laws of Malta and the Rent Restriction (Dwelling Houses) Ordinance, Chapter 116 of the Laws of Malta) were not applicable to dwelling houses decontrolled in accordance with Article 3 of the HD Ordinance. 9. In 1970 the applicant’s mother leased the premises to couple C., who are Maltese citizens (born in 1943 and 1950 respectively), for a rent of 35 Maltese Liri (MTL) (approximately 81.50 euros (EUR)) every six months, which was later decreased to the equivalent of EUR 75.70 every six months. At the time, the law permitted her to increase the rent, to refuse to renew the lease or to change its terms on renewal. 10. In 1979 the Maltese parliament enacted an amendment to the HD Ordinance, which provided that the rent restrictions set out in the Rent Ordinances would apply where tenants were Maltese citizens and occupied houses as ordinary residences. It further provided that landlords could not refuse to renew leases, raise their rent, or impose new conditions on renewal, except as provided for by law (see “Relevant domestic law” below). The applicant submitted that the contractual freedom of parties was greatly restricted as a result of the new provisions, in that his family could not charge a fair rent or recover possession of their property, despite the fact that his tenants owned substantial immovable property. 11. By a decision of the Rent Regulation Board (RRB) of 7 July 1998, the rent was further reduced to EUR 65.22 per year. The applicant did not appeal. 12. In 1995 new laws were enacted in respect of new leases which could again be free from rent control. They did not apply to the applicant’s case. 13. In 2009 and 2010 new concepts and provisions were introduced, aimed at gradually eliminating the restrictive regimes applicable to leases entered into before 1995. 14. Thus, while a rent of EUR 65.22 per year had been paid to the applicant since September 1998, a rent of EUR 185 had been paid from September 2010 onwards in view of the above-mentioned amendments. However, the applicant refused to accept any rent as from 2007 and it was duly deposited in court by the tenants by means of a schedule of deposit. 15. According to a court-appointed architect’s evaluation made in the context of constitutional proceedings instituted in 2005 (see paragraph 17 below), the property at that time had a rental value of EUR 2,912 per year. According to an architect’s report commissioned by the Government, the rental market value in 2013 was EUR 2,900 per year, and the sale value EUR 58,000. 16. To date, couple C still reside in the applicant’s property. It does not at present appear that they have any children formally residing with them. 17. In 2005 the applicant instituted constitutional redress proceedings complaining, inter alia, that the 1979 amendments (in particular Article 5 (2) and (3) of the HD Ordinance, which prohibited landlords from refusing to renew existing leases or from raising their rent) had breached his property rights under Article 1 of Protocol No. 1 to the Convention. 18. On 4 June 2008 the Civil Court (First Hall) in its constitutional jurisdiction rejected his complaint. Basing its judgment on domestic case-law relating to the same subject matter, it considered that he remained the owner of the property at issue, which was being used as a dwelling house, that he could still evict the tenants if they failed to fulfil their obligations under the lease, and that although the amount of rent was low, the law provided for an increase in rent every fifteen years, amounting to double the actual rent. The interference with his rights was therefore proportionate given the needs of society. Moreover, his mother had not been forced to lease out the property. 19. The applicant appealed on 25 June 2008. 20. On 3 November 2008 the Constitutional Court dismissed his appeal as being lodged out of time, the statutory time-limit having expired on 16 June 2008. 21. On 29 April 2009 he lodged an application with the Court, relying on Article 1 of Protocol No. 1 to the Convention. 22. By a decision of 10 November 2009 the Court, sitting as a Committee of three judges, declared the applicant’s application inadmissible. It found that he had lodged his appeal with the Constitutional Court out of time. The domestic remedies had therefore not been exhausted as required by Article 35 § 1 of the Convention. 23. In 2010 the applicant instituted constitutional redress proceedings complaining that the 1979 amendments, which prohibited landlords from refusing to renew existing leases or from raising their rent when the tenant was a Maltese citizen, had breached his property rights under Article 1 of Protocol No. 1 to the Convention. He submitted that the amendments introduced in 2009 had not improved his situation, even assuming they (in particular Article 1531C of the Civil Code) applied to the case in question, a matter which was unclear in the domestic context. With a new rent of EUR 185 per year (see Relevant domestic law below), he remained a victim of the alleged violation, not least because he was also prevented from refusing to renew the lease. He cited the then recent case of Amato Gauci v. Malta (no. 47045/06, 15 September 2009), in which the Court had found a violation in analogous circumstances. 24. By a decree of 30 April 2010 the Civil Court (First Hall) in its constitutional jurisdiction ruled that the defendant in the case should be the Attorney General of Malta, not the State of Malta as purported by the applicant. 25. On 15 October 2011 the Civil Court (First Hall) in its constitutional jurisdiction, upholding the objection raised by the third party who joined in the suit (kjamat fil-kawża), rejected the applicant’s complaint on the basis that the matter had already become res judicata by virtue of the decision of 4 June 2008 (see paragraph 18 above). It noted that such a conclusion required three elements, namely the same parties (eaedem personae), the same object (eadem res) and the same cause of action (eadem causa petendi). Moreover, where the arguments raised were different, it had to be seen whether they could have been raised at the time of the principal judgment. In the present case, it considered that there had been no doubt that the requirement of eaedem personae had been met, despite the fact that the applicant had attempted to bring the present proceedings against the State and that the other proceedings had been against the Attorney General, as it was clear that the defendant in both cases was the Maltese Government. The element of eadem res had also been satisfied in so far as the present case concerned the same lease of the same property, with the same tenants and the same circumstances that had led the applicant to institute proceedings the first time round. Similarly, the element of eadem causa petendi had also been satisfied, since the applicant’s applications to the court were to a great extent the same, if not identical, despite the fact that he had made further arguments and submitted that his situation had remained unchanged notwithstanding the 2009 amendments to the Civil Code. The court considered that the changes to the application had not changed the nature of the action, namely a claim that the restrictions on the rent imposed by the law had been disproportionate. This matter had already been dealt with by the court in the first set of proceedings (no. 49/05), where it had decided that a fair balance had been struck by the authorities; it was not therefore open to the applicant to relitigate the matter. The court further held that even though the applicant had argued that despite the 2009 amendments (if they applied at all) he had remained a victim of the alleged violation, there was already a judgment in his respect stating that the law in so far as it applied to his case had not breached his rights, and the more recent amendments had not worsened his situation. Thus, the Civil Court (First Hall) held that there could not have been a breach of his rights even under the new law. Lastly, it concluded that any new arguments put forward by him should have been incorporated into the first set of proceedings. As to the Court’s recent case-law, it considered that the judgment cited did not entitle the applicant to ask for a fresh examination of his case. 26. By a judgment of 24 June 2011 the Constitutional Court upheld the first-instance judgment, considering the appeal to be frivolous and vexatious.