Malta has repeatedly been reprimanded for breaching the European Convention of Human Rights through its 1979 rent law, which remains unchanged despite multiple judgments in favour of property owners. However, the government does not want tenants to end up in the street. Matthew Xuereb explains the predicament.

Malta should “put an end to the systemic violation of the right of property”, the European Court of Human Rights said in no uncertain terms last week.

It encouraged the government to pursue measures aimed at remedying the situation “speedily and with due diligence under the supervision of the Committee of Ministers”.

It has become a familiar conclusion, echoed in hundreds of previous judgments finding fundamental flaws with Malta’s infamous 1979 rent law.

The latest case was about a two-storey building in Kirkop on which a requisition order was issued in 1955 and the property allocated to the locality’s St Leonard Band Club. The original owners had never accepted the tenants, nor did they accept rent from them.

The court concluded that the landlord’s rights had been violated, since the government failed to strike “the requisite fair balance between the general interests of the community and the protection of the applicant’s right of property”.

It noted that the court had already established, in the context of the Maltese cases before it, that “although Maltese domestic law provides for a remedy, for the purposes of a complaint under article 13 [the right to an effective remedy], in respect of a final judgment of the Constitutional Court, the length of the proceedings detracts from the effectiveness of that remedy”. The court awarded the landlord €150,000 in material damages, €8,000 in moral damages and €7,000 to cover costs and expenses.

OPINION: The injustice of rent laws 

Under the law, any lease of up to 30 years contracted before June 21, 1979, can be turned into a rental. This means tenants living in houses on a temporary lease have the right to stay and pay an annual rent equivalent to double the annual lease they were paying before – which would be way below rental market prices.

By 2015 there were 258 judgments declaring the rent law in breach. Hundreds more have accumulated since

The court’s decision confirmed, for the umpteenth time, that the law violates the right to enjoy property as laid down in the European Convention of Human Rights.

But while lawyers for landlords have been pushing the government to allow their clients to start charging market prices, those representing tenants argue that their clients cannot be faced with a situation where their rent suddenly shoots sky high and they are unable to afford it.

Notwithstanding the need to protect the rights of landowners, the government cannot ignore tenants, they hold. It is not simply a matter of repealing a law that breaches human rights. While coming under ever increasing pressure, the State must correct the law without bringing entire families to their knees.

Tenants in similar situations – and nobody knows how many thousands there might be – now fear they could end up being evicted from their homes as a result of these judgments.

READ: Regulating Malta's spiralling rental market

When contacted, Justice Minister Owen Bonnici would only say that the “government is closely monitoring the latest juridical developments”.

Opposition spokesman Jason Azzopardi, who says he has met several people facing eviction, agrees that the rights of both property owners and tenants need to be safeguarded.

“I concede that it is not an easy matter to address, but turning a Nelson’s eye, or institutional omertà, is definitely not the solution,” he said.

He said he was at the government’s disposal to help it arrive at “a legally and socially just solution”.

Asked what form that solution could take, Dr Azzopardi referred to a judgment handed down in 2016 by Mr Justice Mark Chetcuti, saying this could be “a basis”.

While declaring that the 1979 law breached fundamental human rights, Mr Justice Chetcuti did not order an eviction but ordered the State to pay damages to both owner and tenant.

“That judgment showed how there could be a balance struck between the rights of owners and the rights of tenants. However, it was revoked on appeal,” Dr Azzopardi said. He said that when Dr Bonnici was asked about the matter in 2015, the Attorney General was in the process of finalising a Bill and a social impact assessment was under way.

“After three years, we have a right to know whether he was lying to Parliament, whether he was pulling the wool over our eyes, whether he was taking us for a ride, whether he was buying time or whether he was being genuine.”

Dr Azzopardi insisted that “the government should act in the interests of those thousands of tenants and landlords who have their rights breached as a result of the illegal 1979 socialist law”.

He said that by 2015, there were at least 258 ECtHR judgments declaring Act 23 of 1979 in breach of the European Convention of Human Rights. Hundreds more had accumulated since then, but the government continued to promise action which was never taken.

‘Abdication’ by the Constitutional Court

Malta’s Constitutional Court has abdicated its primary function of seeing that nothing contrary to the European Convention rem-ains in the law.

This is the verdict of Giovanni Bonello, a former judge of the ECtHR. Malta’s Constitutional Court, he says, is “the only one in the whole democratic world that shies away from annulling laws that it finds in breach of the Constitution or the Convention”.

Judge Bonello was contacted for his views after Malta was yet again chastised by the European court for repeatedly breaching human rights, in this case related to property.

He explained that when the court finds a violation of human rights by a State, it does not usually go beyond establishing formally that there has been a violation and condemning the guilty State to pay damages to the victim. It does not usually order specific measures, like the repeal of laws in breach of the Convention. It only makes recommendations, like the one in the recent case.

One way in which the ECHR coerces a State to amend its laws or its practices is by increasing the amount of damages payable in cases of repeated violations.

Usually States respond when their pockets are sufficiently hit.

“It is for the national courts or parliaments to bring their laws in line with the Convention once these have been certified to violate the Constitution or the Convention. Sadly, Malta’s Constitutional Court has abdicated its primary function: that of seeing that nothing contrary to the Constitution or the Convention survives in the Maltese legal order.

“It leaves that to the goodwill of politicians.”

He continued: “Contrary to the express mandate imposed on it by the Constitution, the Constitutional Court of Malta has washed its hands of its primary duty: to annul unconstitutional laws. It has subcontracted this duty to the politicians. It left it to them to decide whether a law that violates the Constitution or the Convention should be repealed or not. Sometimes the politicians listen; most of the other times, they turn a very deaf ear.”

He said it was thanks to the Constitutional Court that Malta’s statute book was “clogged with laws” that were in breach of the Constitution or the Convention, but were still perfectly in force.