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MALTATODAY 4 April 2021

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maltatoday | SUNDAY • 4 APRIL 2021 15 WHEN examining whether there was a fair trial, a consti- tutional court will not only ex- amine what took place before or during the court proceedings but also after and whether a judge- ment may be enforced. This was held by the First Hall of the Civil Court in its constitutional juris- diction presided by Mr Justice Grazio Mercieca, in a case decid- ed 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 ap- plication 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 Relet- ting of Urban Property (Regula- tion) Ordinance. In December 1998 the applicants filed an ac- tion 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 appli- cant's request and ordered that the bank club be evicted. This decision was appealed and on 23 April 2018, the Court of Ap- peal 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 re- spective statements of defence. The State Advocate claimed that the amendments were in- troduced to musical organisa- tions 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 pro- vision, 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 Ap- plicants' fundamental human rights, because the lease agree- ment 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 obliga- tions or of any criminal charge against him, everyone is enti- tled to a fair and public hearing within a reasonable time by an independent and impartial tri- bunal established by law….." Mr Justice Mercieca pointed out that this right is not theo- retical but it practical and effec- tive. 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 pro- ceedings but also before and af- ter. 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 ineffec- tive. The State Advocate and the Defendant band club admit- ted 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 impor- tance 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 contrac- tual obligations. Furthermore a legislative intervention would be acceptable and not in breach of Article 6 of the Convention when there are legal and tech- nical defects or else an abuse of a system. In this case it was the tenant that breached the lease obligations. It was not predict- able 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 judge- ment. As such this was a clear breach of Article 6. With regards to the plea that there was no breach of Arti- cle 1 of the First Protocol of the European Convention, be- cause 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 interfer- ence with the right to peaceful enjoyment of the property. In Zammit and Attard -v- Mal- ta, 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 compat- ible with Article 1 of Proto- col 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 in- terest of the community and the requirements of the protec- tion of the individual's funda- mental rigħts." The Court went through the time line of the new legislation. Five days after the Court of Appeal judgement invited the band club, the Min- ister of Justice published a dec- laration that the government would assist the band club to hold on to its club. In an arti- cle on the Times, the Minister confirmed that the government would be intervening. In the Parliamentary debates men- tions specifically that the leg- islation 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. LAW CLASSIFIEDS CLASSIFIEDS INFO @MEDIATODAY.COM.MT A fair trial includes on whether a judgement can be enforced HOLIDAY ACCOMMODATION MARSALFORN, Gozo - holiday apart- ments for short or long lets with magnif- icent sea-views. 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Kindly message owner on 99201846. NO AGENTS. 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 bedrooms and 1 single A/C bedroom, two bathrooms, lift, double glazing doors and windows. Direct from owner €350k inquire on 79402244. TARXIEN - Larger than usual first floor duplex maisonette. Three bedrooms; dou- ble glazed windows; inverter air condition- ers including solar water heater. Being sold furnished. Own airspace with possibility of further development. Contact owner on 99912005/99450639. SERVICES NEWSPAPER adverts - Book & pay on-line on - no extra charges. Call on 21322452 SITUATIONS VACANT CHETTINAD WAITER - AVM Catering Ltd require a full-time waiter to serve Chettinad speciality dishes and to explain to customers how Chettinad food plays a vital role in Indian cuisine. Minimum 1 year experience in south Indian speciality restaurant is required. Food hygiene certif- icate is also required. You will also be asked to perform general waiter duties. Salary €5 per hour. Call on 99298138 or 21572107 for further information. FACTORY OPERATIVES - Rimus Riley Ltd are recruiting full time factory oper- atives. A number of people are urgently required to work on the Biscuit and Snack production lines. Applicants must be over 20 years old and be able to read instruc- tions in English. Gross wage €795 per month. Please send your CV to: adminrrl@ GYPSUM INSTALLER - required full time to work 6 days a week on a minimum wage. Experience required, must speak fluent english. Interested? Call Danijel 77620902. KITCHEN HELPER - AVM Catering Ltd we require a kitchen helper on a full time basis. Location Bugibba. Minimum 1 year experience performing the duties of a kitchen helper, you must be able to co-ordinate with the chef and waiter dur- ing the service. Knowledge of Chettinad cuisine is an asset. Salary €5 per hour. Call on 99298138 or 21572107 for further information. 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' experi- ence in a similar post. Must be specialised in colonic irrigation. For more info please call Village Concept on 99885352. WANTED COLLECTIBLE items such panini albums and loose stickers, old postcards and post- ed envelopes, medals, militaria, coins and paper money, books, toys, stamps, badges, paintings, gold & silver items etc. Call on 21310238, 99246632. LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates

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