FIRST SECTION
CASE OF BARTOLO PARNIS AND OTHERS v. MALTA
(Applications nos. 49378/18 and 3 others)
 
 
 
JUDGMENT
Art 1 P1 • Art 13 (+ Art 1 P1) • Peaceful enjoyment of possessions • Effective remedy • Disproportionate burden on applicant due to inadequate rent imposed by law • Inadequate domestic redress for continuing violation
 
STRASBOURG
7 October 2021
 
 
FINAL
 
07/01/2022
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bartolo Parnis and Others v. Malta,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Ksenija Turković, President,
 Péter Paczolay,
 Alena Poláčková,
 Gilberto Felici,
 Erik Wennerström,
 Raffaele Sabato,
 Lorraine Schembri Orland, judges,
and Liv Tigestedt, Deputy Section Registrar,
Having regard to:
the applications (nos. 49378/18, 49380/18, 49496/18 and 49676/18) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Maltese nationals, Ms Greta Bartolo Parnis, Ms Patricia Anastasi, Ms Anna Maria Saddemi and Ms Josephine Azzopardi (“the applicants”), on 17 October 2018;
the Chamber’s decision to join the applications, to give notice to the Maltese Government (“the Government”) of the complaints concerning Article 1 of Protocol No. 1 and Article 13 in conjunction with Article 1 of Protocol No. 1 (in relation to the period 2007 onwards) concerning the properties which continued to be subject to the 2007 law after the Constitutional Court judgment and to declare inadmissible the remainder of the applications;
the parties’ observations;
Having deliberated in private on 7 September 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present application concerns a breach of Article 1 of Protocol No. 1 to the Convention in relation to the disproportionate amount of rent received by the applicants, and the effectiveness of the available remedies in this regard. THE FACTS
2. The applicants were born in 1965, 1963, 1960 and 1958 respectively and live in Pembroke. They were represented by Dr P.M. Magri, a lawyer practising in Valletta. 3. The Government were represented by their Agents, Dr C. Soler, State Advocate, and Dr J. Vella, Advocate at the Office of the State Advocate. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Background
5. On the demise of the applicants’ ancestors, the apartments at issue in the present applications, along with others, were inherited jointly by the applicants, who are sisters. By a deed of division of property dated 7 October 2015 the applicants divided the properties between them, as explained below. 6. In 1957 the applicants’ ancestors had given their property (utile dominium, held by title of perpetual emphyteusis) consisting of several apartments (later inherited by the applicants), in St. Julian’s Court, Triq is‑sur Fons, St. Julians, on lease to third parties for forty-five years. 7. The lease expired in 2002. However, the tenants maintained occupation of the premises despite not having any legal title to them. In 2006 the applicants requested the tenants of the apartment to vacate the premises, but the latter refused to do so. No eviction proceedings were lodged against the tenants. 8. In 2007 the Government introduced Act XVIII of 2007 (hereinafter “the 2007 law”) introducing Section 12A into the Housing De‑Control Ordinance (Chapter 158 of the Laws of Malta) (hereinafter “the Ordinance”) allowing for any such tenants who had not been evicted to remain in occupation of the premises under specific conditions (including a low rent). On the basis of that provision of law the tenants of the apartments at issue in the present case continued to reside there. Application no. 49378/18
9. By the deed of division of property dated 7 October 2015 the applicant became the sole and exclusive owner of apartments 12B, 24C, 37D, 44D and 49D. 10. In 2014 the applicant (along with the other heirs who are the applicants in the other applications) introduced constitutional redress proceedings complaining, inter alia, that the law enacted in 2007 created a forced lease relationship causing her a disproportionate burden in breach of Article 1 of Protocol No. 1 to the Convention. 11. Pending these proceedings, apartments 12B and 37D were returned to the applicant in 2015 and 2016 respectively. 12. By a series of first-instance judgments of 28 September 2017 the first‑instance constitutional jurisdiction found a violation of the claimants’ property rights, in relation to apartments 12B, 24C, 37D, 44D and 49D, given that by the enactment of the 2007 law, a forced lease had been imposed on owners, who were receiving a very low rent. It awarded 5,000 euros (EUR) in compensation and held (in connection with apartments 24C, 44D and 49D which were still occupied) that the tenants could no longer rely on Section 12A of the 2007 law to continue to occupy the premises. It rejected the complaints raised under Articles 6 and 14 of the Convention. Costs were to be paid by the defendants. 13. The applicant appealed solely against the redress awarded. 14. By a series of judgments of 24 April 2018, the Constitutional Court confirmed the first-instance judgments and increased the compensation. Bearing in mind that i) had the owners evicted the tenants in 2002 (as they could have done when the latter lost legal title) they would not have suffered the violation; ii) the duration, namely from 2007, until date of judgment (recte or release of property – i.e. eleven years in respect of the apartments still occupied, and less for the others); iii) the rental value, as well as the fact that the apartments might not have been rented out throughout the whole period; iv) the public interest involved; v) the fact that compensation had to be complete; vi) the uncertainty suffered by the owners vii) the costs they incurred to undertake judicial proceedings, as well as viii) (in connection with apartments 24C, 44D and 49D) the fact that a further remedy was being given (enabling the applicant to eventually evict the tenants), it awarded EUR 20,000 in compensation for each flat. 15. It however reversed the finding in relation to costs at first instance and considered that the claimants were to pay the entire costs of proceedings in connection with the costs of the defendants who should not have been cited to appear, and half of the remaining costs of the first‑instance proceedings since they had not been successful in all the claims. It also ordered the claimants to pay 1/6 of the costs of the appeal proceedings for the same reason. Application No. 49380/18
16. By the deed of division of property dated 7 October 2015 the applicant became the sole and exclusive owner of apartments 20B, 33C, 39D and 48D. 17. In 2014 the applicant (along with the others heirs who are the applicants in the other applications) introduced constitutional redress proceedings complaining, inter alia, that the law enacted in 2007 created a forced lease relationship causing her a disproportionate burden in breach of Article 1 of Protocol No. 1 to the Convention. 18. Pending these proceedings, apartment 39D was returned to the owners on 21 March 2015 and apartment 48D was returned to the applicant on an unspecified date in 2017. 19. By a series of first-instance judgments of 28 September 2017 the first‑instance constitutional jurisdiction found a violation of the claimants’ property rights, in relation to apartments 20B, 33C and 48D, given that by the enactment of the 2007 law, a forced lease had been imposed on owners, who were receiving a very low rent. It awarded EUR 5,000 in compensation and held (in connection with apartments 20B, 33C and 48D which were still occupied at the time) that the tenants could no longer rely on Section 12A of the 2007 law to continue to occupy the premises. It rejected the complaints raised under Articles 6 and 14 of the Convention. Costs were to be paid by the defendants. 20. By a similar first-instance judgment of 13 April 2018, the court also found a violation in respect of apartment 39D (which had by then been returned to the applicant) and awarded EUR 20,000 in compensation. It ordered that one-third of costs of the proceedings be paid by the applicant. 21. The applicant appealed solely against the redress awarded. 22. By a series of judgments of 24 April 2018, the Constitutional Court confirmed the first-instance judgments and increased the compensation in respect of apartments 20B, 33C and 48D. Bearing in mind that i) had the owners evicted the tenants in 2002 (as they could have done when the latter lost legal title), they would not have suffered the violation; ii) the duration, namely from 2007, until date of judgment (or release of property – i.e. eleven years in respect of the apartments still occupied, and less for the others); iii) the rental value, as well as the fact that the apartments might not have been rented out throughout the whole period; iv) the public interest involved; v) the fact that compensation had to be complete; vi) the uncertainty suffered by the owners and the costs they incurred to undertake judicial proceedings, as well as vii) (in connection with apartments 20B and 33C which were still occupied at the time) the fact that a further remedy was being given (enabling the applicant to eventually evict the tenants), it awarded EUR 20,000 in compensation for each flat. 23. In relation to apartments 20B, 33C and 48D, it reversed the finding in relation to costs at first instance and considered that the claimants were to pay the entire costs of proceedings in connection with the costs of the defendants who should not have been cited to appear, and half of the remaining costs of the first-instance proceedings since they had not been successful in all the claims. It also ordered the claimants to pay 1/6 of costs of the appeal proceedings for the same reason. 24. In respect of apartment 39D, (where the first-instance court had already awarded EUR 20,000) it confirmed the first-instance judgment, including the award of compensation. It, however, altered the award of costs at first instance, ordering the claimants to pay only 1/5 of costs, and ordered them to pay all the costs of the appeal. Application no. 49496/18
25. By the deed of division of property dated 7 October 2015 the applicant became the sole and exclusive owner of apartments 11B, 26C, 40D and 41D. 26. In 2014 the applicant (along with the other heirs who are the applicants in the other applications) introduced constitutional redress proceedings complaining, inter alia, that the law enacted in 2007 created a forced lease relationship causing her a disproportionate burden in breach of Article 1 of Protocol No. 1 to the Convention. 27. Pending these proceedings, apartments 26C and 40D were returned to the applicant on unspecified dates in 2017 and 2016 respectively. 28. By a series of first-instance judgments of 28 September 2017 the first‑instance constitutional jurisdiction found a violation of the claimants’ property rights, in relation to apartments 11B, 26C, 40D and 41D, given that by the enactment of the 2007 law, a forced lease had been imposed on owners, who were receiving a very low rent. It awarded EUR 5,000 in compensation and held (in connection with apartments 11B, 26C and 41D which were still occupied) that the tenants could no longer rely on Section 12A of the 2007 law to continue to occupy the premises. It rejected the complaints raised under Articles 6 and 14 of the Convention. Costs were to be paid by the defendants. 29. The applicant appealed solely against the redress awarded. 30. By a series of judgments of 24 April 2018, the Constitutional Court confirmed the first-instance judgments and increased the compensation. Bearing in mind that i) had the owners evicted the tenants in 2002 (as they could have done when the latter lost legal title) they would not have suffered the violation; ii) the duration, namely from 2007, until date of judgment (recte or release of property – i.e. eleven years in respect of the apartments still occupied, and less for the others); iii) the rental value, as well as the fact that the apartments might not have been rented out throughout the whole period; iv) the public interest involved; v) the fact that compensation had to be complete; vi) the uncertainty suffered by the owners and the costs they incurred to undertake judicial proceedings, as well as vii) (in connection with apartments 11B, 26C and 41D) the fact that a further remedy was being given (enabling the applicant to eventually evict the tenants), it awarded EUR 20,000 in compensation for each flat. 31. It however reversed the finding in relation to costs at first instance and considered that the claimants were to pay the entire costs of proceedings in connection with the costs of the defendants who should not have been cited to appear, and half of the remaining costs of the first‑instance proceedings since they had not been successful in all the claims. It also ordered the claimants to pay 1/6 of costs of the appeal proceedings for the same reason. Application no. 49676/18
32. By the deed of division of property dated 7 October 2015 the applicant became the sole and exclusive owner of apartments 30C, 32C and 46D. 33. In 2014 the applicant (along with the other heirs who are the applicants in the other applications) introduced constitutional redress proceedings complaining, inter alia, that the law enacted in 2007 created a forced lease relationship causing her a disproportionate burden in breach of Article 1 of Protocol No. 1 to the Convention. 34. Pending these proceedings, apartment 32C was returned to the applicant in 2015. 35. By a series of first-instance judgments of 28 September 2017 the first-instance constitutional jurisdiction found a violation of the claimants’ property rights, in relation to apartments 30C, 32C and 46D, given that by the enactment of the 2007 law, a forced lease had been imposed on owners, who were receiving a very low rent. It awarded EUR 5,000 in compensation and held (in connection with apartment 30C and 46D which were still occupied) that the tenants could no longer rely on Section 12A of the 2007 law to continue to occupy the premises. It rejected the complaints raised under Articles 6 and 14 of the Convention. Costs were to be paid by the defendants. 36. The applicant appealed solely against the redress meted out. 37. By a series of judgments of 24 April 2018, the Constitutional Court confirmed the first-instance judgments and increased the compensation. Bearing in mind that i) had the owners evicted the tenants in 2002 (as they could have done when the latter lost legal title) they would not have suffered the violation; ii) the duration, namely from 2007, until date of judgment (recte or release of property – i.e. eleven years in respect of the apartments still occupied, and less for the others); iii) the rental value, as well as the fact that the apartments might not have been rented out throughout the whole period; iv) the public interest involved; v) the fact that compensation had to be complete; vi) the uncertainty suffered by the owners and the costs they incurred to undertake judicial proceedings, as well as vii) (in connection with apartments 30C and 46D) the fact that a further remedy was being given (enabling the applicant to eventually evict the tenants), it awarded EUR 20,000 in compensation for each flat. 38. It however reversed the finding in relation to costs at first instance and considered that the claimants were to pay the entire costs of proceedings in connection with the costs of the defendants who should not have been cited to appear, and half of the remaining costs of the first‑instance proceedings since they had not been successful in all the claims. It also ordered the claimants to pay 1/6 of costs of the appeal proceedings for the same reason. Other relevant information
39. Section 12B of the Ordinance, introduced by Act XXVII of 2018, entered into force on 1 August 2018, stultifying the outcome of the Constitutional Court judgments in respect of the possibility of evicting the tenant. The provision introduces a further procedure to be undertaken even in cases where any emphyteusis, sub-emphyteusis or tenancy in respect of a dwelling house regulated under Sections 5, 12 or 12A of the Ordinance has lapsed due to a court judgment based on the lack of proportionality. The law provides that 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 the article. RELEVANT LEGAL FRAMEWORK
40. The relevant domestic law is set out in Bartolo Parnis and Others v. Malta ((dec.), nos. 49378/18 and 3 others, § 38, 24 March 2020) and Cauchi v. Malta (no. 14013/19, § 22, 25 March 2021). THE LAW
ALLEGED VIOLATION OF ARTICLE 1 of PROTOCOL NO.1 TO THE CONVENTION
41. The applicants complained that the violation of their property rights, in respect of the apartments that continued to be subject to the 2007 law (apartments 11B, 20B, 24C, 30C, 33C, 41D, 44D, 46D and 49D), was not brought to an end and that they were not adequately compensated for the breach by the Constitutional Court, in view of the value of the properties. Article 1 of Protocol No. 1 to the Convention reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
AdmissibilityThe parties’ submissions

42. The Government submitted that the applicants had lost their victim status as the Constitutional Court had expressly acknowledged the violation and awarded appropriate redress, namely compensation of EUR 20,000 for each apartment, which it had increased from EUR 5,000 awarded by the first‑instance court. Moreover, the Constitutional Court had ordered that the tenants could no longer rely on Section 12A of the Ordinance to maintain title to the property. 43. The applicants submitted that they were still victims of the violation upheld by the domestic courts as the compensation awarded covered only a minimal part of the rent losses they suffered over the eleven years (2007‑2018 until the new amendments), even according to the valuations of the Government’s own expert. They relied on another case lodged by the applicants where the Government had acknowledged the violation and agreed to pay a further EUR 11,500 by way of unilateral declaration, and the application was thus struck out by the Court.

Outcome for Article P1-1: violation