(Application no. 17647/04)
24 October 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Edwards v. Malta,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Sir Nicolas Bratza,
Mr J. Casadevall,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr S. Pavlovschi,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having deliberated in private on 3 October 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The background of the case
“I the undersigned Dr. Paul Pullicino, Notary Public, do hereby certify that in virtue of a secret will made on the 4th day of October, 1966, by Charles Edwards, and published by me on the 9th November, 1996, Major Joseph John Edwards [the applicant] was nominated and appointed by his father, the late Mr Charles Edwards as his sole universal heir and Testamentary Executor of his estate to whom he bequeathed 21/25ths undivided parts of tenements situated at numbers 96 to 100 Tonna Street, Sliema, - of which 2/25ths had been inherited by his wife from her late brother Sir Augustus Bartolo and the further 16/25ths purchased by him from her brother’s family in the mid 1950’s – all of which were owned in common with the remaining 4/25ths undivided and equal parts owned by four further members of the Bartolo family residing somewhere in South America, the administration of which had been passed on to him by their eldest brother Captain Albert Borg Falzon who had been their family administrator until he emigrated from Malta on the 4th June, 1956.”
8. The top floor of one of the tenements was allocated to Mr P. and his family, while family S. had been allotted the ground floor. The requisition of this tenement, composed of two floors, was contested on the ground that the ground floor provided the only access to a field, which belonged to the same owner and which had not been requisitioned. After these tenants had been recognised, on 16 December 1949 the premises were derequisitioned.
9. The premises were again requisitioned on 18 July 1957 from Mr Charles Edwards. They were derequisitioned on 5 March 1963.
B. The proceedings before the Civil Court
C. The proceedings before the Constitutional Court
II. RELEVANT DOMESTIC LAW
A. The definition of requisition
“ to take possession of a building or require the building to be placed at the disposal of the requisitioning authority.”
B. The grounds for issuing requisition orders
“The Secretary, if it appears to him to be necessary or expedient to do so in the public interest or for providing living accommodation to persons or for ensuring a fair distribution of living accommodation, may requisition any building, and may give such directions as appears to him to be necessary or expedient in order that the requisition may be put into effect or complied with.”
C. The recognition of the third person in occupation and compensation for the taking of possession
“(2) Within thirty days of service on him of a judicial letter under the last preceding sub-section, the requisitionee, by application to the First Hall of the Civil Court in contestation of the Director, may pray for an authorisation of non-compliance with that request ...
(3) The court shall not grant the authorisation of non-compliance mentioned in the last preceding sub-section unless the applicant shows to the satisfaction of the court that serious hardship would be caused to him by complying with that request:
Provided that the assertion that the requisitionee wishes to take possession of the building for his own use or for the use of any member of his family shall not be considered of itself as a hardship for the purposes of this sub-article.”
“(1) Subject as hereinafter provided, the compensation payable in respect of the requisition of a building shall be the aggregate of the following sums, that is to say-
(a) a sum equal to the rent which might reasonably be expected to be payable by a tenant in occupation of the building during the period for which possession of the building is retained by virtue of the provisions of this Act, under a letting granted immediately before the beginning of that period:
Provided that where the building is used by the Director or by a person accommodated therein after its requisition as a dwelling house within the meaning of the Rent Restriction (Dwelling Houses) Ordinance, the rent shall not exceed the fair rent as defined in article 2 of the aforesaid Ordinance;
(b) a sum equal to the cost of making good any damage to the building which may have occurred during the period in which possession thereof under requisition was retained (except in so far as the damage has been made good during that period by the occupant of the requisitioned premises or by a person acting on behalf of the Director), no account being taken of damage which, under the provisions of this Act, is the responsibility of the requisitionee;
(c) a sum equal to the amount of expenses reasonably incurred, otherwise than on behalf of the Director, for the purpose of compliance with any directions given by or on behalf of the Director in connection with the taking of possession of the building .”
“i) in respect of an old house, the rent which might reasonably be expected in respect of an old house, regard being had to the average rents prevalent on the 31st March, 1939, as shown on the registers of the Land Valuation Office in respect of comparable dwelling houses in the same or in comparable localities:
Provided that where, after the 31st March, 1939, structural alterations or additions in a house, whether old or new, have been carried out which, in the opinion of the Board, have enhanced the rental value of the house and in respect of which or, as the case may be, of a part of which, no compensation has been paid or is payable under the provisions of the War Damage Ordinance 1943, and no amount has been paid or is payable by way of a grant by the Government of Malta, the rent shall be increased by an amount which, in the opinion of the Board, corresponds to the enhancement of the rental value and which shall in no case exceed a return of three and one quarter per centum a year on the capital outlay on the alterations or additions (excluding any interest on loans or in respect of idle capital) or, as the case may be, on the part thereof in respect of which compensation has not been paid and is not payable under the provisions of the War Damage Ordinance 1943, and no amount has been paid or is payable by way of grant by the Government of Malta, in every case as proven by the landlord to the satisfaction of the Board or, in default, as assessed by the Board; and
ii) in respect of a new house, a sum equivalent to a return of three per centum a year on the freehold value of the site and of three and one quarter per centum on the capital outlay on construction (excluding any sum which has been paid or is payable by way of a grant by the Government of Malta and any interest on loans or in respect of idle capital) as proven by the landlord to the satisfaction of the Board or, in default, as assessed by the Board:
Provided that where a payment under the War Damage Ordinance 1943, is made by or is due from the war damage account in respect of a former building out of which or on the site of which a new house is erected in whole or in part, for the purpose of computing the fair rent of that new house the return on that part of the capital outlay thus contributed by or due from the war damage account shall in no case exceed one year’s fair rent of the former building as on 31st March,1939, or three and one quarter per centum for one year on that part of the capital outlay, whichever is the less;
iii) in respect of a scheme house, an annual sum to be determined by agreement ...”
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
“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.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
1. The Government’s objection of non-exhaustion of domestic remedies
34. The Government observed that the applicant had not instituted proceedings to challenge the 1975 requisition order in respect of the ground floor, in whole or in part. He had also recognised Mr P.’s tenancy since he had received rent from him for over 20 years. Therefore, the applicant’s constitutional claim, introduced in 1996, contradicted what was a settled state of affairs. In the Government’s opinion the applicant’s contradictory positions and his failure to pursue his claim in a timely manner was tantamount to non-exhaustion of domestic remedies.
36. The Court reiterates that according to Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of this rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). Article 35 § 1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights (Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000 XI).
2. Other grounds for declaring this complaint inadmissible
1. The parties’ submissions
(a) The Government
(b) The applicant
49. The applicant maintained that in 1975 he was a joint owner and administrator of the tenement in question, which he had just inherited. He alleged that this information was recorded both in the relevant government department and in the domestic courts.
2. The Court’s assessment
(a) Applicability of Article 1 of Protocol No. 1
(b) Applicable rules in Article 1 of Protocol No. 1
(c) Whether the Maltese authorities respected the principle of lawfulness
(d) Whether the Maltese authorities pursued a “legitimate aim in the general interest”
(e) Whether the Maltese authorities struck a fair balance between the general interest of the community and the applicant’s right to the peaceful enjoyment of his possessions
78. In the present case, having regard to the extremely low amount of rent, to the fact that the applicant’s premises have been requisitioned for more than thirty years, as well as to the above-mentioned restrictions of a landlord’s rights, the Court finds that a disproportionate and excessive burden has been imposed on the applicant. The latter had been requested to bear most of the social and financial costs of supplying housing accommodation to family P. (see, mutatis mutandis, Hutten-Czapska, cited above, § 225, and Ghigo, cited above, § 69). It follows that the Maltese State has failed to strike the requisite fair balance between the general interests of the community and the protection of the applicant’s right of property.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) reserves the said question as a whole;
(b) invites the Government and the applicant to submit, within six months from the date on which this judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be.
Done in English, and notified in writing on 24 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Section Registrar President