No violation of owner's fundamental human rights

The Constitutional Court yesterday confirmed that the implementation of certain provisions of the Housing Decontrol Ordinance were not in violation of a property owner's fundamental human rights.

This judgment was delivered in the case filed by Philip Amato Gauci against the Attorney General and against Michael and Marie Bernardette Polidano.

Mr Amato Gauci claimed that his rights to property had been violated as a result of the operation of article 12 of the Ordinance (which article had been introduced by 1979 amendments).

He told the court that he owned a house in Sliema which had been granted on emphyteusis in 1975. The house was then granted on temporary sub-emphyteusis to the Polidanos in 2000 against payment of Lm90 in yearly groundrent.

Mr and Mrs Polidano claimed that they were entitled to remain in occupation of the house under title of rent, in terms of article 12, for they were Maltese nationals and the house was their ordinary residence.

But Mr Amato Gauci told the court that if the provisions of article 12 were applied, the Polidanos would be able to remain in the house and pay him double the yearly groundrent. His architect had estimated that the rental value of the house was Lm120 per month, and not Lm180 annually to which he was entitled at law.

This was a violation of his right to property as he was not receiving fair compensation, said Mr Amato Gauci. He also added that he needed to retake possession of the house in order to give it to his daughter who was to get married. Mr Amato Gauci also told the court that he was being discriminated against.

The First Hall of the Civil Court however dismissed Mr Amato Gauci's case and he appealed to the Constitutional Court composed of Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph Filletti.

On appeal, the Constitutional Court declared that it was in full agreement with the conclusions reached by the first court.

The European Convention of Human Rights provided for deprivation of property in the public interest or in the general interest. States were entitled to control the use of property in accordance with the general interest, by enacting legislation.

But there had to be a reasonable relationship of proportionality and a fair balance between the general interest and the protection of the individual.

Article 12 of the Ordinance did not deprive an owner of a legal title to his property.

This law restricted the use of the property, for the person occupying the house could, under certain conditions, continue to occupy it under title of lease.

The Constitutional Court said that this was a restriction which the state could impose in the general interest in order to protect an occupant who held the property under temporary sub-emphyteusis from being evicted at the end of the contractual period.

Case law of the European Court of Human Rights had concluded that a restriction of use of property to provide social protection of tenants tended to promote the economic well-being of the country.

Quoting extensively from local and foreign case law, the Constitutional Court ruled that the law complained of limited use of property and did not amount to deprivation of property.

However, one had also to establish whether an excessive burden had been placed on Mr Amato Gauci.

There was no doubt that the compensation established for property owners in terms of article 12 did not reflect the market value of the property.

In this case, the Constitutional Court added that the rent of Lm180 payable by Mr and Mrs Polidano was definitely a low rent, but it provided a minimum compensation to Mr Amato Gauci, as considered suitable by the European Court.

Article 12 also provided for future revisions of the rent every 15 years.

In the light of the circumstances, the court ruled that there was no violation of the provisions of the European Convention nor of the Constitution.

The court, therefore, dismissed Mr Amato Gauci's appeal and confirmed the judgment of the first court.