ECHR judgment of 11 February 2020 in the case of Marshall and Others v. Malta (application no. 79177/16).
In 2016, the complainants were assisted in preparing their application. The application was subsequently communicated to Malta.
The case successfully examined an application about systemic shortcomings in the constitutional restoration of rights, which made this procedure ineffective in relation to the applicants' complaints about the length of the proceedings. The case violated the requirements of Article 13, paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 1 of Protocol No. 1 to the Convention.
THE CIRCUMSTANCES OF THE CASE
The applicants are the owners of real estate that has been rented out for many years under a “protected regime”. The lease was concluded in 1958 with the bank. In 1989 the applicants filed a restitution claim on the ground that the special lease regime could not apply to a commercial entity. However, the Maltese courts ruled in favor of the bank. The proceedings in the case continued until 2010.
Subsequently, the applicants lodged complaints with the Constitutional Court, which issued a final ruling in 2016, stating, in particular, in relation to:
(i) the length of the civil proceedings: the applicants were not awarded compensation as they were found responsible for most of the delays in the proceedings;
(ii) a supervised lease regime: the Constitutional Court did not find that the effect of this regime was disproportionate given the large difference between the rent received by the applicants and the actual market value of the lease.
With regard to restitution, the Constitutional Court considered that it should not have decided to evict the tenant. It is worth noting that in 2009 the Maltese Civil Code was amended to provide property owners with the opportunity to get their property back, but these provisions will only apply after a 20-year transition period that ended in 2028. At the same time, the Constitutional Court ruled that the contested rental laws could no longer constitute a basis for the use of premises in the present case.
As regards compensation, having established that the applicants had waited 23 years to apply to the Constitutional Court, and taking into account the above-mentioned judgment on the invalidity of the consequences of the contested laws between the parties to the dispute, the Constitutional Court awarded the applicants EUR 25,000, with 2/5 of the court costs due reimbursement by the Maltese authorities, and 3/5 by the applicants (which amounted to approximately EUR 4,500).
QUESTIONS OF LAW
Regarding compliance with Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention. While constitutional proceedings, the only available remedy, are considered in theory to be an effective remedy, in practice they are not so in relation to complaints regarding existing rental laws, which, while legitimate and with a legitimate aim, impose on applicants' excessive individual burden.
In the absence of compensation for the period up to 2028, the only remedy capable of providing the applicants with adequate and prompt redress in the present case was to obtain an order from the Constitutional Court to evict the tenants, which it did not issue without following its usual practice. Instead, the Constitutional Court ruled that tenants could no longer invoke the relevant provisions of the law to establish their rights to the property. The Court refrained from resolving this issue as a whole, but noted that in the present case the effectiveness of this measure was unsatisfactory.
It follows from the materials of the case that to date (i) no proceedings have been started to evict the tenants (or, if it was, it has not been completed), (ii) the tenants have not vacated the premises voluntarily. The inaction of both parties, thus, led to the preservation of the status quo, which existed at the date of the decision of the Constitutional Court more than three years ago.
In any event, there was no reason to delay the granting of redress in the present case, given that (i) unlike similar cases in which the interference was justified by the legitimate aim of providing social housing, in the present case the interference was in the interests of a commercial organization, and namely the bank, (ii) in accordance with the legislation, the bank would in any case lose the protection of the law and would be forced to vacate the premises after the expiration of the lease in 2028.
Moreover, the pecuniary compensation provided to the applicants was not proportionate. The Court has expressed concern that the Maltese courts (i), in respect of pecuniary damage, often fail to take into account that the amounts awarded should return the applicant, as far as possible, to the position he would have been in if there had been no violation , (ii) do not supplement these awards with an award of awards for non-pecuniary damage and / or an order to reimburse the related legal costs.
There was a violation of the requirements of Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention (adopted unanimously).
Compliance with Article 13 of the Convention in conjunction with paragraph 1 of Article 6 of the Convention. While constitutional proceedings are considered in theory to be an effective remedy for complaints about length of proceedings, in practice they did not appear to have been such at the relevant time, given systemic weaknesses such as lack of promptness and regular practice. awards of unreasonably small amounts of compensation. Moreover, although the applicants' claims related to the length of the proceedings were satisfied, the Constitutional Court nevertheless ordered the applicants to pay 3/5 of the court costs. Even if the size of the legal costs to be paid did not impede access to this remedy in the present case, it at least often had implications for determining the amount of compensation awarded.
There has been a violation of Article 13 of the Convention in conjunction with Article 6 § 1 of the Convention (adopted unanimously).
The Court also unanimously found violations:
- Article 1 of Protocol No. 1 to the Convention in connection with the fact that, as established by the courts of Malta, a disproportionate burden was imposed on the applicants. Moreover, although the impugned measure was generally taken in the general interest, the fact that there was also a private interest of a commercial nature could not be ignored;
- Article 6 § 1 of the Convention owing to the excessive length of the proceedings in the applicants' case.
Application of Article 41 of the Convention. The Court awarded the applicants jointly EUR 500,000 in respect of pecuniary damage, the claim for non-pecuniary damage was dismissed.