CASE OF VELLA 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+P1-1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Carlo Ranzoni
5. The applicant was born in 1932 and lives in Siġġiewi. 6. The applicant is the owner of 14 Kirkop Square, Kirkop, a twostorey tenement with a surface area of around 175 sq.m. (hereinafter “the property”). In 1975, 1979, and 1987, following the death of their father, mother and uncle respectively, the applicant and her three brothers inherited an estate which included the property. By a deed of partition of 11 November 1998 the property was assigned to the applicant and she became its sole owner. 7. The property was requisitioned in 1955 by means of a requisition order. The premises were then allocated to the San Leonard Band Club in Kirkop (hereinafter “the band club”). The owners of the property never recognised the tenant or accepted any rent from the club. According to a judgment of 1 February 1958 of the Civil Court (First Hall) in its ordinary jurisdiction, the owners were entitled to do so because the tenement had not been leased as a dwelling, and thus greater risks were involved. 8. In the years that followed rent was paid to the owners by the competent authority (then the Director of Social Housing, today the Housing Authority). The annual rent payable amounted to 30 Maltese Lira (MTL – approximately 70 euros (EUR)), less than EUR 6 per month. According to an architect’s valuation from 2007 submitted by the applicant, the rental value of the tenement at the time was MTL 750 (approximately EUR 1,747) per month. The Government challenged this estimate, as the valuation had contained no explanation as to the basis for the calculations, or whether the property was considered residential or commercial, or vacant or occupied. They relied on a valuation in an architect’s report concerning a property (3 Kirkop Square) requisitioned in 1955 for the purposes of the band club – which stated that the rental value in 2015 was EUR 12,250 per year, which meant EUR 1,021 per month. The Government did not refer to the different address, arguing as though the valuation referred to the property at issue in the present case. 9. Over the years the band club carried out extensive structural alterations, without obtaining the consent of the owners or the relevant permits from the competent authorities. According to an architect’s report, there had been a total change and the alteration effected had effaced what had once been the traditional layout of important buildings in old Maltese towns. According to the applicant, this deprived her of the valuable quality and historical and architectural importance of the property, thus devaluing it. The Government argued that the applicant had not availed herself of any ordinary remedy in this regard and had thus failed to substantiate the loss in value. Moreover, in their view the property was in a good state of repair and the alterations had increased its value. 10. According to the applicant, the band club also repeatedly breached the tenancy agreement which it had signed, by manufacturing fireworks on the premises and conducting commercial activities (such as running a bar and letting the premises out as a wedding venue despite not having the requisite authorisation). The Government submitted that these were unsubstantiated allegations, which had not been proved before the domestic courts. 11. As from 2008, in the light of constitutional proceedings (see below), the band club started depositing the annual rent in court. 12. The applicant and her brothers also owned a property (18 St. John’s Alley, Kirkop) adjacent to the tenement above, which was requisitioned in 1986 and also assigned to the band club. 13. In 1987 the owners of the tenement instituted civil proceedings before the Civil Court (First Hall) in its ordinary jurisdiction against the Housing Secretary and the band club. They requested that the requisition order of 30 December 1986 be declared null and void as being contrary to the 1949 Housing Act, and sought to regain possession of the tenement. They also requested compensation for the damage allegedly sustained. 14. In a judgment of 9 October 1991 the Civil Court (First Hall) in its ordinary jurisdiction rejected the plaintiffs’ claim. The owners appealed against that decision. 15. In a judgment of 30 December 1993 the Court of Appeal declared the requisition order null and void and ordered that the appellants be given possession of the premises within six months. It held that the requisition for the purposes of assigning the property to the band club could not be considered to be in the public interest. It sent the case back to the Civil Court (First Hall) in its ordinary jurisdiction for it to award the appellants compensation. 16. In a judgment of 31 May 2005 the Court of Appeal rejected a request for a new trial submitted by the band club. 17. In a judgment of 16 October 2006 the Civil Court (First Hall) in its ordinary jurisdiction found the Housing Secretary and the band club liable for the damage suffered by the owners in connection with the structural alterations to the property. This judgment was upheld by the Court of Appeal on 27 February 2009. 18. By a judgment of 6 May 2009 the Civil Court (First Hall) in its ordinary jurisdiction awarded the owners EUR 72,000 in damages, covering EUR 16,000 for missing objects, EUR 40,000 to rectify the structural changes made and EUR 16,000 for the loss of use of the property for twenty years. This judgment was upheld by the Court of Appeal on 2 October 2012. 19. In 2007 the applicant instituted constitutional redress proceedings in relation to the property requisitioned in 1955, asking the court to declare that, as a result of the requisition order and the continued occupation of the premises, she had suffered a breach of her rights under Article 14 of the Convention and Article 1 of Protocol No. 1 to the Convention. She asked the court to award her compensation for the taking of possession of the property and for the violations suffered, and to order any other measure capable of preventing the continuation of the violation, including the release of the property. 20. The defendants, the Director of Social Accommodation, the Attorney General and the band club, argued that no such violations had occurred. 21. By a judgment of 11 October 2011 the Civil Court (First Hall) in its constitutional jurisdiction upheld the applicant’s claims. It considered that the requisition order had been issued for the property to be enjoyed by a private entity and therefore the measure had not been in the public interest. In this connection, it referred to a judgment of 30 December 1993 by the Court of Appeal concerning what it considered to be the same property (see above). Moreover, the measure had not been proportionate. The rent had been derisory, causing the applicant to suffer a disproportionate and excessive burden. She had therefore suffered a violation of Article 1 of Protocol No. 1. According to the court, the applicant had also suffered a violation of Article 14, as only her property had been requisitioned for the use of the band club. In determining the amount of compensation, the court did not take into account the fact that the applicant or her ancestors had received rent, given that the amount was derisory. Bearing in mind the values established by the applicant’s expert as to the rental value and sale value of the property, which was MTL 180,000 (approximately EUR 420,000) (pg.12 of the judgment), as well as the length of time the requisition was and remained in place, the court awarded the applicant EUR 60,000 in compensation (kumpens) for the requisition of the premises and the violations found, noting it was not awarding civil damages (danni ċivili) in this context. Three quarters of the amount was to be paid by the Director of Social Housing and one quarter by the band club. It further ordered the band club to vacate the premises within three months of the date of judgment and to return the premises to the applicant. 22. The band club appealed, arguing that it could not be held responsible for breaches of human rights and that, in any event, the measure had been in the public interest. It further contested the order to vacate the property. The Attorney General and the Director of Social Accommodation also appealed, in particular in relation to the findings of a lack of public interest, a violation of Article 14 and the redress awarded. The applicant crossappealed, arguing that the compensation awarded was too low and did not reflect the losses she had incurred over the years. 23. By a judgment of 25 May 2012 the Constitutional Court upheld the first-instance judgment in part. It reiterated the finding of a violation of the applicant’s rights under Article 1 of Protocol No. 1 only in so far as the requisition had been disproportionate. It found, however, that it had been in the public interest – the court considered that jurisprudence had shifted since the time of the judgment of 30 December 1993 of the Court of Appeal on which the first-instance court had based its assessment. In the present case the requisition had served a social and cultural purpose for the generality of citizens and could not be said to have served solely private interests. 24. It further found that there had been no violation of Article 14. 25. As to the redress, the Constitutional Court revoked the order for the club to vacate the premises. Considering that the violation of Article 1 of Protocol No. 1 was a consequence of the lack of a fair balance between the interests of the landlord and those of the tenant, and given that the validity of the lease was not at issue in the present case, it did not seem appropriate for it to evict the tenant; it sufficed that that unfair balance be redressed. 26. The Constitutional Court confirmed the amount of compensation awarded by the first-instance court, including the way in which it had to be shared. It considered that the band club had benefited from the situation and had never attempted to fix it, despite the fact that it had not been recognised as a tenant. In relation to the amount of compensation, it considered that the disproportionality of the measure had not persisted since the start of the requisition in 1955, but had started to be so only after the 1980s. Furthermore, the applicant had received the rent paid by the department and had only instituted constitutional proceedings in 2007 (while never contesting the validity of the requisition), thus it was legitimate and in line with local case-law to reduce her compensation. It also held that the property had been taken in the public interest and therefore the compensation needed not reflect market values. It followed that the compensation had to be reduced, however, given that the property was not to be vacated, it was appropriate to retain the amount awarded by the firstinstance court. Lastly, the court held that the claim for damages for the depreciation of the property as a result of structural works did not fall within the ambit of a constitutional complaint, and it was thus not its place to award such damages. 27. The Constitutional Court ordered the applicant to pay the costs of the cross-appeal and half the judicial costs of the proceedings before the two levels of jurisdiction.