Issue link: https://maltatoday.uberflip.com/i/1231020
11 maltatoday | SUNDAY • 5 APRIL 2020 LAW CLASSIFIEDS HOLIDAY ACCOMMODATION MARSALFORN, Gozo - holiday apart- ments for short or long lets with mag- nificent sea-views. Call 21556021, 27556021, 79426883 PROPERTY FOR SALE SAN GWANN- Open plan 190sqm, ready to move into designer finished second floor apartment in a central quiet street forming part of a block of 5 apartments. Two double A/C bed- rooms and 1 single A/C bedroom, two bathrooms, lift, double glazing doors and windows. Direct from owner €350k inquire on 79402244. TAR XIEN - Larger than usual first floor duplex maisonette. Three bed- rooms; double glazed windows; invert- er air conditioners including solar water heater. Being sold furnished. Own airspace with possibility of fur- ther development. Contact owner on 99912005/99450639 PROPERTY TO LET XLENDI - catering premises in prime site to let. Can be used for other com- mercial purposes. Phone 79493021, 79426883, 77481592 or 77484029 SERVICES NEWSPAPER adverts - Book & pay on-line on www.perfecta.com.mt - no extra charges. Call on 21322452 SITUATIONS VACANT DRIVERS - Mangion Bros (Zurrieq) Ltd of Triq il-Belt Valletta, Zurrieq, specialising in building construction is recruiting experienced and English speaking, DRIVER: BULLD OZER AND MECHANICAL SHOVEL and DRIVER: HEAVY VEHICLE to work with the company. Full Time role. Involves outdoor work. Annual Gross Salary starting Euro 9600. Apply by calling 21 649 590 or visiting us at our plant. L AB OURERS & STEELWORKERS - Thomas Azzopardi Construction is looking for full-time Labourers & Steelworkers to work on various con- struction sites. The applicants can apply by sending their CV to thomasazzo- pardiconstruction@gmail.com LIVE-IN NANNY - We are looking for a professional nanny that will take care of our childcare needs. We need someone who is mature and capable of entertaining the children, whilst pay- ing crafts and singing nursery songs. Interested candidates can forward their CV to galeagayle@gmail.com SIGNAL 8 - Signal 8 Security Malta Ltd. requires filling positions as Payroll Clerks, Security Guards, security for places of entertainment and cleaners. Applicants should be customer care orientated, smart and flexible for shift work. Email your CV to hr@signal8se- curitymalta.com.mt SPA THERAPIST Required for a bou- tique hotel. Full time hours including weekends and public holidays. Must be flexible with hours. At least 5 years experience in a similar post. Must be specialised in colonic irrigation. For more info please call Village Concept on 99885352. SUNAMGONJ LTD - has vacancies for waiters, cleaners and helpers in offices, hotels, hostels, guesthouses and other establishments and for Construction Labourers. Applicants must have min- imum of one / two years' experience. Fluently speaking English and other languages. Hourly rate from Eur4.50 / Eur5.50. Interested applicants may send email to secretary@a-plusplus.eu. WANTED COLLECTIBLE items such panini albums and loose stickers, old postcards and posted envelopes, medals, militar- ia, coins and paper money, books, toys, stamps, badges, paintings, gold & silver items etc. Call on 21310238, 99246632 Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates THE civil court should always follow its procedure, even if a constitutional law issue is raised. This was held in a judge- ment delivered by the Court of Appeal delivered by the Chief Justice Joseph Az- zopardi and Justices Gianino Caruana Demajo and Anthony Ellul delivered on 27 March 2020 in AIC Joseph Barbara et -v-Myriam Vella and the State Advocate. Both parties had lodged an appeal from a judgement delivered on 18 October 2018, wherein Vella was ordered to va- cate her residence since the Housing (Decontrol) Ordinance was in breach of the European Convention on the Protec- tion on Human Rights. The defendants were ordered to pay the plaintiffs €30,000 in damages and also €400 a month until Vella vacates the premises. Originally the action was filed against Vella only on the premise that she was occupying the property without a title. Vella filed a plea that she had a title under Article 12A of the Housing (Decontrol) Ordinance. The plaintiff asked the Attor- ney General, today the State Advocate to join the action, since she was of the opin- ion that Article 12A was in breach of her human right to enjoy her property. In its judgement the first court was in agree- ment that Article 12A was in breach of the European Convention and liquidated damages to €30,000 and order that the defendant vacate the property within three years, while the Attorney Gener- al (AG) pays €400 a month in rent. The Court in this case saw how the plaintiffs had entered into a temporary emphythe- usis with the defendant, which expired in 2002. The case was first instituted as a civil action for the defendant to be vacat- ed, but once the plea in terms of Article 12A was raised, the plaintiff asked the court to convert into its Constitutional Jurisdiction. The Court pointed out that the Maltese courts have recognised that the Housing (Decontrol) Ordinance was intended to protect tenants from being vacated from their residences, but there must be a just balance in that there must be a propor- tionality of actions. The First Court in its judgement held that it disagreed with the plaintiff that the violation took place in 2002. Before that time the defendant had a title of em- phyteusis, however, Article 12A(4) of the Housing (Decontrol) Ordinance says that if the temporary emphyteusis expires be- fore 1 July 2007, the new law applies if the tenant still lives in the property. There- fore, the breach commenced on 1 July 2007. The AG then argued that the law allowed that the rent would double, how- ever, in this case, it amounted to €52.32 a month. The Court saw previous judgements on this issue and concluded that the in- terpretation and the application of the Housing (Decontrol) Ordinance was un- just and wrong. Therefore, the plaintiff suffered a breach of her human rights. Vella argued that the European Con- vention Act, cannot change the Consti- tution. If there is a conflict between the two, then the Constitution should pre- vail. The Court can only declare that a piece of legislation is null and void or that it is not compatible with the Constitution and must stop there. According to Article 242 of the Code of Organisation and Civil when a piece of legislation is declared not compatible with the Constitution, the judgement should be sent to the Speaker, who in turn should inform Parliament. The Court disagreed on this point, since it the Court in its constitutional jurisdic- tion has wide powers to offer a remedy for the breach in the Constitution. This is found in Article 6 of the Constitution and Article 3(2) of the European Conven- tion. In this case, the Court felt that the appropriate remedy was the vacation of the Defendant from the property. Vella has a right to have a property as her resi- dence, however, this obligation is on the State and not on the Plaintiff. The Court recognised that the Defendant lives off a pension and the Court needs to find a balance between the Plaintiff's funda- mental human rights and Vella's interest. Therefore, the Court is giving enough time for the State to find an alternative accommodation for her. Until that time the AG is to pay €400 per month to the Plaintiff as rent. As to the financial compensation the first court awarded, the Court took into consideration the period in which the Plaintiff lost control of her property. The quantum of damages was established on a number of criteria, which included the market value of the property and the market value of the lease. The AG then appealed this judgement, and the first ground of appeal was that the Plaintiff was not deprived from her property as mentioned in the European Convention. The AG conceded that the Plaintiff was not receiving the commer- cial rent of the property, but one had to take into consideration a number of is- sues to arrive to the principle of propor- tionality. The Court agreed in that one must consider the principle of legality and the public interest. However, when the discrepancy is so wide, then the prin- ciple of proportionality was adhered to. The commercial rent is €4,350 a year, however the Plaintiff was paying €627.90 per annum. Therefore, Article 12A of the Housing (Decontrol) Ordinance was disproportionate and as a result was in breach of the Plaintiff's human rights. The AG complained of the compensa- tion, it was ordered to pay. The Court of Appeal held that this case was not a consti- tutional case, but a civil case which raised a constitutional issue. The first court had to decide whether Article 12A was to be applied in regard to the Plaintiff's claims. The Court should have limited itself to his. The order to vacate the property, was not a result of a breach of the Plaintiff's human rights, but because the Defendant does not have a legal title to hold on to the property. This is the only remedy that the Court was asked to give and not compensation. The Court of Appeal warned that it was impor- tant that courts follow the procedure, in that if a civil case wherein a constitution- al issue is raised, then it should follow the civil law procedure. The Plaintiff also appeals on the ground that the three-year period for the order to vacate to take effect is too long. The Court of Appeal agreed, as the first Court had to see whether the Defendant has a title or not and if she did not then the court should have ordered that she va- cate the property. The Court of Appealed applied Article 741(b) of the Code of Or- ganisation and Civil Procedure and sent the acts to the Rent Regulation Board to see whether she had a title under a dif- ferent article of the Housing (Decontrol) Ordinance. The Court of Appeal upheld that Arti- cle 12A of the Housing (Decontrol) Or- dinance was in breach of the Plaintiff's fundamental human rights. Ordered that the Rent Regulation Board deter- mine whether the Defendant has a title, then removed the compensation and the monthly rent ordered by the previous court. Court should limit itself to claims LAW