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  • Dr Carlos Bugeja

A breach of fundamental human rights: the rights of the heirs

By Dr Carlos Bugeja - Partner

In the past years, our courtrooms were filled with dozens of cases filed by owners of property leased under a protected title of lease, lamenting that these legally-protected leases breached their fundamental human right to property, guaranteed by the European Convention on Human Rights (Article 1, Protocol 1). Our courts have generally agreed that these old laws are in breach of the owners' fundamental human rights, but gave different interpretations as to the amount of compensation to be awarded when finding for the owner.

The judgment of Cauchi vs Malta, delivered by the European Court of Human Rights on 25 March 2021, largely settled the questions surrounding the actual losses to be compensated. It stated that these laws, although in breach of the owners' rights did have a legitimate aim, that is a social housing purpose, so the actual losses of rent suffered by the landlord because of these laws have to be reduced by around 30%. The ECtHR also stated that that if the property had not been subject to the impugned regime it would not necessarily have been rented out throughout the entire period. Therefore, it is acceptable to consider that the actual losses were less than those claimed, by at least 20%. So today, it is generally accepted, even by Maltese courts, that the compensation to be awarded in these cases shall be all the rent lost by the owner, minus 30%, and then minus another 20%. Some of our courts also opt to award an additional sum in non-pecuniary damages; some have decided to award a token amount (say, €2,000), and some opted to go for the sum of €500 for each year of infraction.

However in time, another question came up: if the original owner died, could the heir recover compensation for the losses incurred by the testator? So to speak, is a human rights compensation transferrable causa mortis?

We had conflicted decisions on this; some courts have adopted the view that an heir can only claim compensation for the period during which he was the owner of the property, and cannot claim compensation on behalf of the previous owner from which he inherited the property.

A judgment by the ECtHR of 14 January 2022 indicated (albeit not clearly) that compensation rights may be inherited, stating that: "There is therefore no reason to exclude the years during which the applicant only part-owned the property, or those where it was held by the applicant’s ascendant – bearing in mind, however, that the disproportionality must not have arisen immediately."

In a judgment delivered by the Constitutional Court on 4 May 2022 (209/2020/1), this quandary was finally laid to rest. In this case, plaintiffs' father had owned the property occupied by a protected tenant since year 1988; when he passed away in 2019, he was inherited by his sons and daughters. The first court decided that compensation was only due for the period starting 2019, when the sons and daughters acquired the property through inheritance. Thus, it did not award any pecuniary damages, and limited itself to order the State Advocate to pay the sum of €2,000 as non-pecuniary damages.

Plaintiffs appealed, and in a judgment delivered on 4 May 2022, the Constitutional stated that:

Jirriżulta li l-atturi akkwistaw il-proprjeta` in kwistjoni bħala eredi universali ta’ missierhom u għaldaqstant huma daħlu fiż-żarbun legali ta’ missierhom u komplew il-personalita` ġuridika tiegħu kemm f’dak li jirrigwarda l-obbligazzjonijiet tiegħu u kif ukoll id-drittijiet tiegħu. Huwa minnu li skont il-ġurisprudenza tal-Qorti Ewropea, leżjonijiet ta’ drittijiet fondamentali li huma ta’ natura intrinsikament personali għall-mejjet ma jistgħux jifformaw il-bazi ta’ lment ta’ ksur mill-eredi tiegħu, sakemm l-allegazzjoni ma tkunx titratta l-Artikolu 2 tal-Konvenzjoni, jew sakemm ma jkunx jirriżulta illi l-istess persuni huma vittmi indiretti tal-leżjoni allegata.

Pero`, kif rikonoxxut fil-ġurisprudenza tal-Qorti Ewropea stess, il-kunċett ta’ “vittma” fil-ġurisprudenza ta’ dik il-Qorti huwa wieħed awtonomu u indipendenti mill-kunċetti domestiċi li jirrigwardaw l-interess ġuridiku quddiem il-qrati domestiċi. Inoltre, skont il-ġurisprudenza tal-Qorti Ewropea, il-Qorti tirrikonoxxi lill-eredi bħala vittmi meta jkollhom interess leġittimu li jressqu l-azzjoni a bażi tal-fatt li l-leżjoni allegata jkollha effett fuq id-drittijiet patrimonjali ta’ dawk l-eredi. Il-Qorti tosserva illi l-leżjoni konstatata mill-Ewwel Qorti naqqset il-patrimonju ta’ missier l-atturi, patrimonju li huwa issa proprjeta` tal-atturi u li huwa anqas milli seta’ jkun b’effett dirett tal-leżjoni in kwistjoni.

Għalhekk il-Qorti hija tal-fehma li fiċ-ċirkostanzi ta’ dan il-każ huwa legalment possibbli għall-atturi, qua eredi universali ta’ missierhom, illi jressqu lment ibbażat fuq l-Artikolu 1 tal-Ewwel Protokoll tal-Konvenzjoni Ewropea li jinkludi wkoll dak il-perjodu ta’ żmien fejn is-sid tal-proprjeta` kien missierhom."

For this reason the Constitutional Court calculated the compensation from the year 1988, and ordered the State Advocate to pay plaintiffs the sum of €64,313, as well as the sum of €2,000 originally awarded by the first court.

Dr Carlos Bugeja is Partner at PROLEGAL Advocates.


Disclaimer: This article is not to be construed as being legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Carlos Bugeja at

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