By Dr Carlos Bugeja - Partner, and Martina Francica - Paralegal
The European Court of Human Rights, in a judgment delivered on the 7th of October 2021, in the names of Bartolo Parnis and Others vs Malta (App. Num. 49378/18, 49380/18, 49496/18 and 49676/18), once again chastised Maltese Law for failing to provide burdened landlords with an effective remedy and moreover, for introducing retrospective interventions in the applicable law, to further deprive the owners from regaining possession of their property. Furthermore, the ECtHR delivered comments that could have major implications on the recent amendments to the law of lease.
The case is the latest in what seems to be a saga of judgments decided by the European Court of Human Rights, decided upon applications filed against the Maltese State, where landlords alleged a breach in their fundamental human rights (namely their right to the enjoyment of property – Article 1 Protocol 1 of the Convention) as enshrined in the European Convention of Human Rights, which Convention has long been ratified (over thirty years ago!).
The facts of this particular case were not of particular interest, given that many a judgment have been decided on the same point in Strasbourg (most recently Cauchi vs Malta decided 25th March 2021). What was particular in this case was that the European Court of Human Rights Court did not focus on compensation (as it held that the applicants had been adequately compensated) but rather on the legislative amendments made by the Maltese Parliament, and what it deemed to be the Constitutional Courts' failure to afford an adequate remedy.
The law in dispute in the present case was Chapter 158 of the Laws of Malta (the Housing De-Control Ordinance) – which law relates to expired emphytheutical concessions (‘ċens’) turned into perpetual leases. The ECtHR considered the 2018 amendments (Act XXVII of 2018), and expressed the view that the fact that these applied retrospectively further stultified the possibility of obtaining an eviction judgment from the local courts.
The ECtHR did not look kindly at the famous means test. It described it as yet another way how the law tries to impede the Constitutional Court from granting the aggrieved owners the possibility to evict tenants, given that the threshold of the test is so low that even wealthy individuals would be protected.
The ECtHR emphasised that the Constitutional Court does have the power to evict tenants or even to provide alternate solutions to prejudiced owners (such as awarding a higher future rent which truly reflects the current market); and yet it noted that none of these actions are normally taken. In a way this was also a reflection on the current situation following the 2021 amendments, which law introduced the ‘means test’ system to leases regulated by Chapter 69 of the Laws of Malta (Reletting of Urban Property Ordinance).
The Court once again demonstrated its unwillingness to deem acceptable a situation where one has to file two cases to obtain the eviction of the tenant under a protected lease. Addressing the Government's arguments, it noted that:
"The Government argued that the outcome of such proceedings would not be automatic, as the tenant may have another title to the property. However, the Government’s argument misses the wood for the trees. In the context of these cases, the eviction proceedings are expected to take place after the domestic court has found a violation of an applicant’s property rights due to the effects of the impugned law. It is thus already established that it was the impugned law which gave the tenant title to the property and which interfered with an individual applicant’s property rights. Had the tenant had another title to the property, then that should have been a defence in the constitutional proceedings, which if valid would have avoided the violation in the first place."
The European Court further comments on the previous point and holds that constitutional redress proceedings in cases alleging a breach in the right to protection of property of the sort are not an effective remedy – put simply, compensation just isn’t enough. In the Bartolo Parnis case, the court found that the applicants had been adequately compensated by the Maltese Constitutional Court but nevertheless retained a victim status. It highlighted how the Constitutional Court (and all those yet to come) is vested with the power to evict the tenants yet actively chooses not to.
In its conclusions the court held that despite there being the legitimate issue of social housing, “the only remedy capable of giving adequate and speedy redress to the applicants in the situation of the present case was for the Constitutional Court to order eviction – a course of action it failed to undertake, as its normal practice”.
In addition to the above, in light of article 41 of the Convention which allows the ECtHR to afford just satisfaction to the injured party, the court ordered a further €4,000 as non-pecuniary damages, in addition to the €20,000 they were each awarded by the Maltese Constitutional Court.
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 firstname.lastname@example.org.