On June 25, the Civil Court, First Hall (Constitutional Jurisdiction) gave its judgment on case 75/2019 GM. This was a fundamental rights case instituted by the landlords against the State and the occupants of their property for the violation of their fundamental property rights as safeguard­ed by Malta’s Constitution and the European Con­vention on Human Rights.

What is of particular interest in this case is that it involved a każin. In Malta, this should be a social club for some form of society, in this case a football club, being Naxxar Lions Football Club. Każini are often held to be of social and cultural importance, in fact they should centre around the activities of a sports club, a philharmonic society, et cetera. This has legal and practical signifi­cance, which will be referred to further on.

In the cases of każini, it often happens that the pro­perty had been occupied for decades. These were often leased out, and at a subsequent stage made subject to special protection by specific rent legislation.

In this par­tic­u­lar case, the lease was subject to Chapter 69 of the Laws of Malta, the Reletting of Urban Property (Regulation) Ordinance, originally promulgated on June 19, 1931. As a matter of fact, the lessees, Naxxar Lions Football Club, had occupied the property since 1945.

The plaintiffs sought declarations to the effect that their fundamental rights under the Constitution and the Convention had been violated, that as a consequence thereof, the provisions of Cap. 69 and Act X of 2009 (which inter alia amended and affected the application of Cap. 69) are inapplicable in their regard, and that the court issues such orders and directives to give effect to their fundamental rights, including by declaring that the plaintiffs are not obliged to re-let their property as per Cap. 69 and that the plaintiffs are entitled to regain the full possession of their property.

The plaintiffs called upon the Civil Court, First Hall, to order the eviction of the occupants and to liquidate the damages suffered and order the defendants to pay for the violation of the fundamental rights of the plaintiff.

In essence, the Civil Court, First Hall, acceded to all of the plaintiffs’ requests, bar the request for eviction.

This was dealt with in line with recent practice adopted by our courts, albeit disputable, namely a declaration that the occupants can no longer rely on the protection of the special rent laws to occupy the property concerned. Damages were also liquidated and payment thereof was burdened on the Office of the State Advocate.

The Civil Court, First Hall, acceded to all the plaintiffs’ requests, bar the request for eviction

What is of practical interest in this case is that submissions were made to, and considered by, the court in view of the social or cultural purposes that such każini have in Maltese society.

The European Convention on Human Rights allows discretion to contracting states when controlling the use of property for such purposes. This is particularly relevant when determining the quantum of damages to be afforded to the plaintiffs, as settled Maltese and European jurisprudence allows for damages to be reduced when compared with market values.

The court considered two aspects affecting the damages awarded, the first being that the aim of the State was a legitimate one, while the second being that said aim did not have as much social significance as when dealing with social housing.

The plaintiffs had claimed damages well in excess of a million euro, and this on the basis of a technical report by an independent court-appoin­ted expert. In line with the referred jurisprudence, the Civil Court, First Hall, awarded an amount of €256,000.

The respondents pleaded a number of exceptions to the plaintiffs’ case, which were all rejected by the Civil Court, First Hall, claiming they were incompatible with its judgment. The first plea was related to the availability of so-called ordinary remedies under Cap. 69, (a constitutional one like this, being extraordinary).

The court rejected this plea on the grounds that in its constitutional jurisdiction, it has wide discretion in applying the same, and particularly so in cases such as this one in which the ordinary remedies under Cap. 69 have been found to be extremely wanting in giving an effective remedy to the plaintiffs.

The court seemed to veil its criticism towards the State Advocate for raising this plea, by referring to the notorious inefficacy of the remedies under Cap. 69, as known to legal practitioners. This plea is often raised with the same results, being a waste of time and resources to the detriment of swifter justice.

The State Advocate also pleaded the inapplicability of Article 37 of the Constitution, by virtue of a transitory constitutional provision making it inapplicable with regard to laws enacted prior to 1962. The court rejected this by reference to jurisprudence which extended its applicability to those laws when their effects protracted in time after 1962.

The court also stressed that the provisions of the European Convention Act do not have such a transitory provision or derogation, and also referred to jurisprudence by the European Court of Human Rights which make it clear that the Convention applies with respect to all the State’s alleged acts and omissions even when they are merely extensions of an already existing situation.

Likewise, the court rejected the State Advocate’s plea that in such protected leases there is no deprivation of property as contemplated under Article 37 of the Constitution. The court referred to a thread of constitutional jurisprudence whereby Article 37 was deemed applicable in cases affecting any interest in, or right on, any kind of property.

Cases are meant to be fought out when negotiations fail, but the pleas above keep on being raised by the Office of the State Advocate, not­withstanding now copious jurisprudence to the contrary. This can be held to be an overly-prudent, or worse, a vacuously combative, litigating praxis.

This case has been appealed by the Office of the State Advocate, and the said appeal shall be heard and determined by the Constitutional Court.

Edric Micallef Figallo is an associate at Azzopardi, Borg & Abela Advocates.

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