The case Josephine Mangion et. (the “Plaintiffs”) vs. George Grech et. (the “Defendants”) was brought before the First Hall Civil Court (Constitutional Jurisdiction) (the “Court”) on the 30 November 2023, and was presided over by Honourable Judge Dr Francesco Depasquale.

The judgement in question examines whether the pre-1995 rental laws and the amendments made thereafter could be considered as being in violation of certain fundamental human rights.

Facts of the Case

The Plaintiffs are the owners of property number 44, situated in Triq Atocia, Hamrun (the “Property”). In 1978, the Plaintiffs entered into a lease agreement with the Defendants, which was drawn up under the Reletting of Urban Property (Regulation) Ordinance (Chapter 69 of the Laws of Malta) (the “Old Rent Law”).

Through a submission filed on the 22 February 2021, the Plaintiffs held that the protections granted to the Defendants under the Old Rent Law and certain provisions of the Civil Code created a disproportion between the rights of the Plaintiff (the lessor) and those of the Defendant (the lessee), largely favouring the latter.

The Plaintiffs claimed that their right to an effective remedy (as stipulated under the European Convention of Human Rights) had been breached principally due to the fact that article 1531C of the Civil Code prohibits them from increasing the rent in a manner which is fair and just.

The Plaintiffs  therefore requested:

    1. compensation to make good for previous rental income; and
    2. eviction of the Defendants from their Property.

The Plaintiffs  claimed that the Old Rent Law violates their fundamental human rights as detailed in Article 1 of Protocol 1 of the European Convention of Human Rights (the “ECHR”) and Article 37 of Chapter 1 of the Laws of Malta (The “Constitution”).

The Defendants Claims

The State Attorney, inter alia, claimed that:

    1. through the amendments that came into force through Act X of 2009 and article 1531C of the Civil Code, the Plaintiffs right to fundamental human rights were being remedied; and
    2. also referred to article 47(9) of the Constitution which states that:

“Nothing in article 37 of this Constitution shall affect the operation of any law in force immediately before 3rd March 1962 or any law made on or after that date that amends or replaces any law in force immediately before that date (or such a law as from time to time amended or replaced in the manner described in this sub-article) and that does not –

    1. add to the kinds of property that may be taken possession of or the rights over and interests in property that may be acquired;
    2. add to the purposes for which or circumstances in which such property may be taken possession of or acquired;
    3. make the conditions governing entitlement to compensation or the amount thereof less favourable to any person owning or interested in the property; or
    4. deprive any person of any right such as is mentioned in paragraph (b) or paragraph (c) of article 37(1) of this Constitution.”

The Defendants, amongst other defences, claimed that they should not be a party to the case given that they had always acted in accordance with the relevant law and paid their rent accordingly. For this reason, they claimed that they themselves should not be made to pay any compensation.

The Defendants went on to state that this Property was their only residence and hence should not be made to be evicted.

Relevant Provisions

Article 1531C of the Civil Code states as follows:

“Without  prejudice  to  the  rights  of  the  lessor  in accordance to article 4A of the Reletting of Urban Property(Regulation) Ordinance and article 12B of the Housing (Decontrol)Ordinance, the rent of a residence which has been in force before the1st June, 1995 shall be subject to the law as in force prior to the 1st June, 1995 sohowever that unless otherwise agreed upon in writing after the 1st January, 2010, the rate of the rent as from the first payment of rent due after the 1st January, 2010, shall, when this was less than one hundred and eighty-five euro (€185) per year, increase to such amount:

Provided that where the rate of the lease was more than one hundred eighty-five euro (€185) per year, this shall remain at such higher rate as established.

(2) In any case the rate of the rent as stated in sub-article (1) shall increase every three years by a proportion equal to the increase in the index of inflation …….”

Article 1 of Protocol 1 of the ECHR states that:

“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.”

Article 37 of the Constitution states that

“No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where provision is made by a law applicable to that taking of possession or acquisition ……”

The Courts’ Considerations

The Court firstly considered the Defendants claim vis-à-vis (i) that they should not have been included as a party to the case and (ii) that they themselves should not be required to pay any compensation to the Plaintiffs.

In doing so, the Court referred to a previous judgement whereby it was stated that, whilst in agreement with that fact that the Defendants had complied with the relevant law, and that such individuals should not be the ones to make good for any unconstitutionality which may exist within the law,  given that the outcome of the judgement could potentially effect the Defendants, the Court deemed it necessary that they remain a party to the case.

Article 37 of the Constitution

The Court went on to determine whether there existed a breach to the fundamental human rights of the Plaintiffs.

In relation to Article 37 of the Constitution, the Court, inter alia, referred to a previous judgement Alexander Caruana et. vs. Doris Zarb et, in which it was concluded that although the relevant provisions within the Civil Code and the Old Rent Laws were enacted after 1962, such provisions did not create the scenarios stipulated in points (a) – (d) of Article 47(9) of the Constitution (quoted above). The Court therefore concluded that Article 37 of the Constitution had not been breached.

Article 1 of Protocol 1 of the ECHR

In relation to Article 1 of Protocol 1 of the ECHR, the Court concluded that the power of the State to use property for a social purpose must be carried out in a proportionate manner and that the interest of the private owner in the enjoyment of his property must always be kept in mind. Lack of such proportionality would result in a breach of Article 1 of Protocol 1 of the ECHR.

The Court concluded that the balance and proportionality test had not been met and that the Plaintiffs were indeed deprived of their property and possession.

The Courts’ Decision

Considering the above, the Court ruled that the State Attorney was to compensate the Plaintiffs for both pecuniary and non-pecuniary damages which they have suffered.

Disclaimer: Ganado Advocates is responsible for contributing this law report but was not in any way involved as legal advisor for the parties in the judgement being covered in this law report.

Author: Bettina Gatt

This article was first published on The Malta Independent on 27/12/2023.

 

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