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When examining whether there was a fair trial, a constitutional court will not only examine what took place before or during the court proceedings but also after and whether a judgement may be enforced. This was held by the First Hall of the Civil Court in its constitutional jurisdiction presided by Mr Justice Grazio Mercieca, in a case decided on 26 March 2021 Peter Paul Lanzon et -v- L-Avukat ta’  l-Istat u Socjeta Filarmonika GM Fra Antoine de Paule.

The Applicants in their application explained that they are the owners of a property in Paola, which is occupied by the defendant band club. The Club paid Lm450 in rent per year and the lease was regulated by Reletting of Urban Property (Regulation) Ordinance. In December 1998 the applicants filed an action before the Rent Regulation Board asking the Board to be given back the possession of the property and on 15 July 2016 delivered a decision in Carmen Mary Lanzon -v- Joseph Boffa et.

The Board upheld the applicant’s request and ordered that the bank club be evicted. This decision was appealed and on 23 April 2018, the Court of Appeal confirmed the decision and the band club had to move out by September 2018. On 10 July 2018, Parliament passed a new Act XXVII of 2018. It amended Article 1531J of the Civil Court, which allowed band clubs to continue to enjoy their leases under the pre-1995 rent laws. The Applicants asked the Court to declare Act XXVII of 2018 as in breach of the fundamental human rights and to allow them to enforce the eviction.

Both defendants filed their respective statements of defence. The State Advocate claimed that the amendments were introduced to musical organisations and the Government has a duty to try to strike a balance between fundamental human rights and the use of property for general interest.  The new law does not give a blanket provision, but lists a number of conditions , as that there has to be an increase in rent with a minimum threshold of €5,000.

The band club argued that there is no breach of the Applicants’ fundamental human rights, because the lease agreement was entered into in 1984 and therefore they knew exactly what they getting into.

The Court quoted Article 6(1) of the European Convention:

“(1)  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…..”

Mr Justice Mercieca pointed out that this right is not theoretical but it practical and effective. The term ”hearing” does not establish any stage of the proceedings. Article 6(1) of the Convention guarantees a fair trial not only during the proceedings but also before and after. After as the Convention has to assure oneself that judicial decision can in fact take place. The execution of a judgement is an integral part of the hearing as mentioned in Article 6.

The interference of the execution of a judgment can be done by the Executive and the Legislative branches of a democracy. A law can make a judgment ineffective. The State Advocate and the Defendant band club admitted that legislative interference can be problematic, however, this had been accepted by the European Court if it is in the general interest. However, the State Advocates failed to quote the European Court judgement that held this position.

The Court also pointed out that although the legislation was clearly intended to protect band clubs which had their importance in our society and culture, this was not compelling to allow that it is in the public interest to protect a category of tenants and allow a breach in contractual obligations. Furthermore a legislative intervention would be acceptable and not in breach of Article 6 of the Convention when there are legal and technical defects or else an abuse of a system.

In this case it was the tenant that breached the lease obligations. It was not predictable that the law would allow the clubs to make structural alterations without the consent of the owners and neither was it predictable that the legislation would give in effect immunity for contractual obligations. The aim of the law was to put spokes in the wheel of the court judgement. As such this was a clear breach of Article 6.

With regards to the plea that there was no breach of Article 1 of the First Protocol of the European Convention, because the lease agreement was signed on 15 June 1984 when the Reletting of Urban Property (Regulation) Ordinance was in force and therefore, the parties knew what they were entering into. Act XXVII of 2018 which amended the Civil Code on rent constituted an undue interference with the right to peaceful enjoyment of the property.

In Zammit and Attard -v- Malta, decided by the European Court of Human Rights on 30 July 2015, the Court held that it “reiterates that in order for an interference to be compatible with Article 1 of Protocol No. 1 it must be lawful, be in the general interest and be proportionate, that is, it must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.” The Court went through the time line of the new legislation.

Five days after the Court of Appeal judgement invited the band club, the Minister of Justice published a declaration that the government would assist the band club to hold on to its club. In an article on the Times, the Minister confirmed that the government would be intervening. In the Parliamentary debates mentions specifically that the legislation  was the government’s attempt to help out the band club. The law allowed the band club to remain in the property without any limitations.

The Court found a breach in the Applicants’ human rights and awarded them €74,000 after making the calculations on the rental value and the time the club continued to hold on the property.

Av. Malcolm Mifsud


Mifsud & Mifsud Advocates

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