The damages awarded by the national courts must restore the victim to the position he was in before his right was infringed.
Portanier v. Malta 27.08.2019 (no. 55747/16)
Rental application. Restitution of the victim of a violation of rights. Appeal on domestic legal protection in case of infringement of property rights. Although the national courts acknowledged that the applicant’s right to own property as a lessor had been infringed, they were awarded minor damages and did not order the eviction of the tenants. The Court has found that the compensation imposed by a national court must aim at restoring the applicant as far as possible, if the infringement had not occurred. Violation of Article 1 of the First Additional Protocol of the ECHR and Article 13 of the ECHR.
Article of the First Additional Protocol
The applicant, Victor Portanier, is a Maltese national who was born in 1931 and lives in Swieqi
The case concerned his complaint about the redress given domestically for a violation of his property
rights, in particular in so far as the domestic court had awarded a low level of compensation and had
failed to order the eviction of tenants, opting instead to order that the tenants could no longer rely
on the relevant law to maintain title to the property.
Mr Portanier has an apartment in the town of Sliema which he rented to a couple from 1974 under a
long-term contract (a sub-emphyteusis contract), which was extended in 1991. In 2008 the couple,
relying on section 12 of Act XXIII of 1979 amending Chapter 158 of the Laws of Malta, the Housing
(Decontrol) Ordinance, converted the contract into a lease with an annual rent of 1,186.46 euros.
Mr Portanier and his wife began constitutional redress proceedings, arguing that the law which
allowed such contracts to be converted had imposed a lease on them for an indefinite period of time
at an unfair rent, in breach of Article 1 (protection of property) of Protocol No. 1 to the European
Convention on Human Rights, among other provisions.
In October 2016 the Civil Court (First Hall) in its constitutional competence rejected the claims,
stating that the Portaniers had known about the 1979 amendments when extending the contract in
1991 and could not therefore complain about legal effects which had been foreseeable at the time.
Mr Portanier appealed, relying on the Court’s judgment in Zammit and Attard Cassar v. Malta. In
April 2016 the Constitutional Court reversed the first-instance judgment and found a breach of
Article 1 of Protocol No. 1. It held in particular that in 1991 Mr Portanier had only had the choice of
extending the contract or transforming it into a lease with less favourable conditions. The
Constitutional Court awarded him EUR 2,500 for pecuniary and non-pecuniary damage. It did not
order the tenants’ eviction but said they could no longer rely on the impugned law to claim title to
the apartment. Mr Portanier used separate eviction proceedings to take possession of the
apartment in September 2017.
Mr Portanier complained that he was still a victim of the violation of Article 1 of Protocol No. 1
which had been found by the Constitutional Court owing to the low amount of compensation he had
been awarded and, relying on Article 13 (right to an effective remedy) of the Convention in
conjunction with Article 1 of Protocol No. 1, he complained that the constitutional redress
proceedings had not been an effective remedy.
THE DECISION OF THE COURT…
VIOLATION OF ARTICLE 1 OF PROTOCOL NO.1
n the present case the Court notes that there has been an acknowledgment of a violation by the domestic court. As to whether appropriate and sufficient redress was granted, the Court considers that even though the market value is not applicable and the rent valuations may be decreased due to the legitimate aim at issue, an award of EUR 2,500 ‑ from which part costs amounting to EUR 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.
It follows that the redress provided by the Constitutional Court did not offer sufficient relief to the applicant, who thus retains victim status for the purposes of this complaint.
Having regard to the findings of the domestic court relating to Article 1 of Protocol No. 1, the Court considers that it is not necessary to re‑examine in detail the merits of the complaint. It finds that, as established by the domestic court, the applicant was made to bear a disproportionate burden.
There has accordingly been a violation of 1 of Protocol No. 1 of the Convention.
VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1
a.“Preventing the alleged violation or its continuation”
The Court cannot but note that while an eventual eviction would surely cause some distress to the tenant, who is also the holder of certain rights under the Convention, it would be for the Government to relocate such a tenant if necessary. It is the role of the courts of constitutional jurisdiction to provide the available remedy for Convention violations, thereby protecting the victim (in this case the owners) from a continuing violation irrespective of any Government discomfort. This is particularly so when the Government could avoid any such situations by amending the law in such a way as to provide for a reasonable amount of rent.
In the absence of any particular detail on the matter, the Court will refrain from adjudicating on the effectiveness of this approach in general; it suffices for the purposes of the present case to find that in the instant circumstances the applicant has been successful in his eviction and thus the violation no longer persists.
(b) “Providing adequate redress for any violation that had already occurred”
The Court notes that it has repeatedly found that the sums awarded in compensation by the Constitutional Court do not constitute adequate redress. The Court makes reference to its considerations in paragraphs 24 and 25 above. The Court considers that, just like an award for pecuniary damage under Article 41 of the Convention, an award for pecuniary damage made by a domestic court must be intended to put the applicant, as far as possible, in the position he would have enjoyed had the breach not occurred. It transpires from the information and cases brought before the Court that this is often not the case. Such pecuniary awards are also often not accompanied by an adequate award of non-pecuniary damage and/or an order for the payment of the relevant costs. No domestic case‑law dispelling such conclusions has been brought to the Court’s attention in the present case.
In the light of the above considerations relating to the relevant time, the Court concludes that although constitutional redress proceedings are an effective remedy in theory, they were not so in practice, in cases such as the present one. In consequence, they cannot be considered an effective remedy for the purposes of Article 13 in conjunction with Article 1 of Protocol No. 1 concerning arguable complaints in respect of the rent laws in place, which, though lawful and pursuing legitimate objectives, impose an excessive individual burden on applicants.
No other remedies have been referred to by the Government.
Accordingly, the Court finds that there has been a violation of Article 13, in conjunction with Article 1 of Protocol No. 1 to the Convention.
Just satisfaction: EUR 8,000 for compensation and EUR 6,000 for costs and expenses. echrcaselaw.com