The Maltese Constitutional Court abdicated responsibility assigned to it by the Constitution of Malta when it did not order the eviction of a tenant from a Sliema apartment despite finding that the landlord’s rights had been breached, the European Court of Human Rights has said. 

The ruling came at the end of a nine-year legal battle first instituted in the Maltese courts by Victor Portanier, now 88, the owner of an apartment in Depiro Street, Sliema.

In 1974, Mr Portanier and his now late wife, had granted their apartment under sub-emphyteusis to a couple for 17 years at a rent of Lm140 (€326) annually, extending it for another 17 years in 1991.
In 2008, the tenants claimed that in terms of the applicable rent laws, they had the right to retain the apartment under title of lease, against an annual rent of €1,186.46.

Mr Portanier filed proceedings claiming that the lease, “for an indeterminate time without reflecting a fair and adequate rent”, breached his fundamental rights.

His claims were rejected by the court of first instance in 2015. However, the judgment was reversed in 2016 by the Constitutional Court which set the rental value of the apartment at €5,600 per annum and considered that fair rent would be between €3,000 and €4,000 annually. 

The court awarded Mr Portanier €2,500 in pecuniary and non-pecuniary damages but considered it unnecessary to evict the tenants, whilst declaring that they could no longer rely on applicable laws to claim title to the property. 

The court also ordered Mr Portanier to foot one-sixth of the total costs, namely €1,291.15. 

Following that judgment, Mr Portanier filed fresh eviction proceedings, effectively regaining possession of his property in September 2017. The apartment was found to be in such a terrible state, that it could not rented out immediately.

Meanwhile, Mr Portanier filed an application before the European Court, arguing that  his efforts before the courts since 2010 had not yet served to provide him with an effective remedy in terms of Article 13 of the European Convention.

He said that the low amount of compensation and the added burden of having to institute eviction proceedings to regain his rightful possession amounted to a breach of rights.

His lawyers argued that although the Maltese courts had “unlimited powers”, there was a pattern of local caselaw which showed that the Constitutional Court systematically reduced the compensation awarded by the court of first instance.

This was made worse by the fact that often no “weighty reasons” or “adequate reasoning” were given by the Constitutional Court, which “persistently shot down” eviction orders by the courts of first instance.

The European Court in its decision said that an effective remedy was one which prevented an alleged violation or its continuation, or provided “adequate redress for any violation that had already occurred”.

It pointed out that the Constitutional Court had repeatedly failed to bring such a violation to an end.

Rather than provide for a higher future rent which would possibly do away with the need for eviction, the Maltese courts were adopting an alternative approach, warning tenants that they could no longer rely on the relevant laws, declared unconstitutional, to retain their hold on the property.

However, this was cold comfort for the landlord who would still have to embark upon fresh proceedings to evict the tenants.

The Strasbourg Court said that this approach by the Constitutional Court was an abdication of the responsibility, assigned to it by the Constitution of Malta. 

Why pile on months or years of additional suffering and costs upon the landlord once the alleged breach of his rights has been acknowledged by the courts, the European Court asked.

 “The speed of remedial action is also relevant to the effectiveness of a remedy,” it said.

The court noted that there was one exception where the Maltese courts had provided “an impeccably comprehensive remedial action” in the case John Mattei et vs Housing Authority.

In that case, the first-instance court had ordered the eviction of the tenants and the Housing Authority was told to find alternative accommodation for them, besides ordering the said Authority to pay €800 monthly in rent to the applicants until the eviction took place. 

“That judgment must be praised by this Court, as it takes an approach which provides a solution to all the concerns raised…….and conforms to the principles of adequate redress,” said the European Court, pointing out that that judgment was revoked by the Constitutional Court last year and a similar course of action did not appear to have been attempted since.

The seven European Court judges including Chief Justice Emeritus Vincent de Gaetano rejected the Malta government’s arguments and declared that “an award of €2,500 from which part costs amounting to €1,291.15 must be deducted can hardly be considered sufficient for a violation which persisted for more than eight years during which the applicant was being paid a disproportionately low amount of rent.”

In the light of all evidence put forward and bearing in mind the award granted by the Constitutional Court, the European Court unanimously upheld Mr Portanier’s claim, declaring his rights had been breached and awarding him €8,000 in pecuniary damages and a further €6,000 in costs and expenses, payable by the state within three months. 
Professor Ian Refalo, Dr Mark Refalo and Dr S. Grech assisted Mr Portanier. 

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