Posted Friday, November 8, 2019
Article 12 of Housing (DeControl) Ordinance in violation of human rights

The Housing (DeControl) Ordinance states that where a dwelling house has been granted on temporary emphyteusis according to a contract preceding 2lst June 1979, the emphyteuta shall be entitled to continue to occupy the house under a title of lease after the contract expires.

This has been found to be in direct violation of Article 1 of the First Protocol to the European Convention on Human Rights both by the European Court of Human Rights (ECHR) as well as the Maltese Constitutional Court in the case of Grima et. Vs. Avukat Generali u Kaptan Ronald Paul Abela on the 21st October 2019 presided by Hon. Judge Toni Abela.

The Court heard the pleas by the plaintiffs who are the owners of a tenement in Sliema that was given to the defendant on title of emphyteusis in 1960. After the expiration of this period, the property was rented out to the same defendant and has been occupied by him to this date. Since their tenement was subject to the provisions of the Housing (DeControl) Ordinance, the plaintiffs held that they are now in a situation where their property cannot be enjoyed by them and that the defendant will perpetually occupy the tenement indefinitely, violating their right to peaceful enjoyment of their property as guaranteed by both the Convention as well as the Constitution.

The Court reiterated what has been established by the ECHR in a number of judgements, that Government control of leases as well as restrictions on the termination of such lease contracts violates the rights of private individuals. The Attorney General, however, put forward the argument that the Convention allows for such regulation in the public interest.

It was explained that this law came into place to provide for social housing at a time when it was necessary for the government to establish control over rent prices. Nonetheless, the Court held that in such cases where Government interference is necessary, measures must be taken in accordance with the principle of a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.

The Court held that as stated by the ECHR in Buttigieg and Others v. Malta (app. No. 22456/15), the lack of procedural safeguards in the application of the law and the rise in the standard of living in Malta over the past decades produced a disproportionate and excessive burden on the applicants who were made to bear most of the social and financial costs of supplying housing accommodation. Thus, Article 12 of the Housing (DeControl) Ordinance is in violation of both European human rights law as well as Article 37(1) of the Constitution.

The Court then went on to consider the applicants’ plea for remedial action. The Court first held that defendant Abela should not pay any compensation to the applicants as it is only the State that is responsible for the violation due to the implementation of the law promulgated by Act XXIII of 1979. The Court also held that defendant Abela neither should nor can be forced to vacate the property.

The Court stated that contrary to what has been advised by the ECHR, the ejectment of lessees in such cases would be both unfair and unreasonable. It held that it is also not within the remit of the Constitutional Court to determine the civil aspects of the case, and there are other legal bodies which have jurisdiction to determine such issues. It was held, however, that the occupant Abela cannot remain occupying the tenement on the basis of the law found to be in violation of human rights and another legal relationship must be established.

The Court also held that it could not declare the law to be without effect in its totality. Since the action is not one which is actio popularis, therefore challenging the validity of the law, the Court can only declare that the law is unconstitutional and without effect with regards to the parties in this case.

In determining the necessary compensatory amount to be paid by the Attorney General, the Court first held that it can only give compensation for the violation of the fundamental right and not civil damages. It was also established that in line with judgements such as Azzopardi vs Avukat Generali (2019) a constitutional remedy does not necessarily mean a reimbursement of the whole amount of the rental market price to the applicants. It was stated that the calculations of the applicants do not take into account the social aspect of the law and maintenance and repair costs which the applicants would have had to incur over the property through the years. It also cannot be taken for granted that the property would have been rented perpetually by lessees.

Taking all of the above into consideration, the Court awarded the applicants a sum of €20,000 to be paid by the Attorney General as a representative of the Government along with all legal expenses for both defendant Abela and the applicants.


Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates 
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