The Constitutional Court delivered a judgment on appeal on July 12 in the case of Louis Apap Bologna v Calcedonio Ciantar, Housing Authority and the Attorney General (47/2017/1), a case which engaged the appellate function of the Constitutional Court in relation to fundamental rights as protected by the Constitution, in accordance with article 46(4) of the same.
This case tackles the fundamental rights of immovable property owners in relation to what is imposed upon them by the legislator and the executive, an imposition which ends up limiting their enjoyment and use of their property, ostensibly justified by the general interest of the community. The relevant private property had been requisitioned by the State, and was subsequently leased out to a third party (in the instant case, one of the defendants) on social welfare grounds, with such third party paying rent to the Housing Authority.
This case is a result of a string of fundamental rights cases between the same parties, starting off from case 57/2009 heard by the First Hall of the Civil Court, itself appealed to the Constitutional Court and which at all levels had in effect found a violation of the plaintiff’s fundamental rights due to the requisitioning and occupation of the immovable property concerned. The property owner had eventually taken the case to the European Court of Human Rights which set the damages due for said violations at a higher level than the Maltese courts. However, the requisition and the occupation continued beyond such judgments.
The property owner eventually filed this constitutional case (47/2017) asking the court (1) to declare that the continued occupation as requisitioned and occupied by the occupant, without a due compensation reflecting market values, violated his fundamental rights as protected by the European Convention of Human Rights; (2) to condemn the defendants to return to him the property as free and vacant after having annulled all relevant requisition orders; (3) to liquidate any compensation due for said violations and (4) to provide any further adequate remedy to make good for said violations.
While our courts found that the continued occupation was a violation of the property rights of the plaintiff, what is of greater interest in this case is that it dealt more specifically with the remedies afforded for said violation. This is where the First Hall of the Civil Court and the Constitutional Court eventually diverged.
The appeal to the Constitutional Court was filed by the two public defendants as the Housing Authority and the Attorney General contested the violation of the plaintiff’s fundamental rights as confirmed by the First Hall of the Civil Court on first instance and the remedies afforded to him. The Constitutional Court confirmed such a violation on appeal, but reformed the remedies afforded by the first court.
The first court had annulled all requisition orders and given the Housing Authority a maximum of four years in which to provide adequate alternative accommodation to the occupant, upon which or failing which all defendants (including the occupant) had to return the property to the owner with vacant possession. The first court had also fixed the payment of €350 per month (to increase by five per cent per year, if applicable) by the Housing Authority to the property owner as compensation for the continued occupation, while the occupant had to keep paying rent to the Housing Authority at the rate which had been allowed to him by the latter. The first court also liquidated damages for the violation of the fundamental rights of the plaintiff.
The Constitution and the European Convention Act would clearly indicate that the powers are there for the courts to use, with words as clear as can be
Four years seem like quite a generous period, especially bearing in mind that the amount of compensation appears to be relatively low considering the levels of rent prices. However, the Constitutional Court reformed the judgment of the First Hall of the Civil Court by cancelling the order towards the occupant to release the property with vacant possession according to the aforesaid terms and cancelling the order towards the Housing Authority to find adequate alternative accommodation for the occupant within a maximum period of four years.
It also cancelled the order to pay compensation as fixed by the first court for each month of continued occupation. The Constitutional Court confirmed the rest of the judgment by the first court, but what are the results of this?
The end result for this application alone (47/2017) is that the property owner was declared as having his fundamental rights violated and for which compensation was to amount to a total of €7,875. He was to bear one third of the costs of the appeal, which he did not file. Did the Constitutional Court state or decide that the property owner could not eventually evict the occupant or otherwise obtain the free and vacant possession of his property?
No. In line with the consistent pronouncements of our Constitutional Court, it stated that it is not adequate for it to order such eviction but declared that the laws involving the requisition and the lease by the occupant no longer retain legal effect, and that these can no longer be relied upon by anyone, notwithstanding any initial legitimacy, as they are inconsistent with the fundamental rights provisions applicable through the European Convention Act and the Constitution. So what does it mean?
The plaintiff has to bring forward yet another case in front of an ordinary judicial body (not one having constitutional jurisdiction) in order for the eviction to be ordered, but this seems like an unnecessary procedural formality which could take years.
Does the Constitutional Court unnecessarily prolong the delivery of a proper and effective remedy for victims of fundamental rights violations by the State, besides making it more onerous? The Constitution and the European Convention Act would clearly indicate that the powers are there for the courts to use, with words as clear as can be.
Does the legal order require that one avoids using one’s judicial powers to deliver justice expeditiously and instead have it done by the ordinary judicial bodies, when it is not an ordinary matter? Should the legislator intervene?
Edric Micallef Figallo is associate at Azzopardi, Borg & Abela Advocates.