On human rights day, ‘band club protection’ law held to be in breach of human rights

In a judgement handed down by the Civil Court (First Hall) in its constitutional jurisdiction, the recent band club protection laws were held to be unconstitutional and in breach of the owners’ human rights. The case relates to a long battle over years for the eviction of the Stella Maris Band Club in Sliema after the club built a new storey without its landlords’ permission.

Handing down judgement on Thursday, Human Rights Day, Chief Justice Mark Chetcuti ruled that a retrospective amendment to the Civil Code introduced by the government breached the owners’ fundamental human right to property. The amendment introduced in 2018 sought to prevent a court, even if eviction court proceedings were already underway, from ordering the eviction of a band club if it breached its lease contract by making structural changes.

The judgement noted that the government’s interference in pending court cases was neither proportionate nor predictable and accordingly impinged on the owners’ basic human rights laid down in the European Convention on Human Rights. Further, the Court noted that interference by the government in contractual terms between parties, in this case the Band Club as the tenant was contractually prohibited from making structural changes, gave rise to rule of law concerns.

As a result, the Court ruled that the band club cannot invoke or benefit from the ‘protection’ granted in the said civil law amendment. The Court accordingly instructed the Court of Appeal to disregard this law in hearing the remainder of the case.

The Stella Maris Band Club’s premises are an imposing townhouse in Annunciation Square, Sliema, that the Band Club rents for just €174 per year under a protected lease dating back to 1959.

In 2008, the owners took the band club to court, stating that these had carried out structural changes to their Sliema property without their permission or that of the Planning Authority.

The band club, whose president is Minister Michael Falzon and represented by lawyer and MP Stefan Zrinzo Azzopardi, replied saying that all the works were done with the authorisation of the owners and the Planning Authority and that any work carried out was just maintenance.

In 2015, then newly made Magistrate Monica Vella took over the case from Giovanni Grixti. Two years later she ruled in favour of the band club concluding that the new storey was not a structural change and that in any event the owners’ consent could be tacitly implied.

The owners appealed the judgement.

In 2018, 10 years after the case was originally filed, the Court of Appeal held that the Rent Regulation Board presided over by Vella was wrong its appreciation of the law and the facts of the case. The Court noted that, legally, consent from owners could not be tacit or presumed and that factually the Rent Regulation Board had ignored its own Court Appointed Architect’s report showing the new storey and other structural changes.

Judge Anthony Ellul had noted that the changes made to the building, which included replacing temporary structures with corrugated iron roofing on the roof with one much larger permanent room with a concrete ceiling, building two new toilets also on the roof, and removing part of the spiral staircase (garigor) were in fact structural changes prohibited by the lease agreement.

That same year, however, the government introduced a new sub-article to the Civil Code which prevented the Court of Appeal from ordering eviction notwithstanding the finding that the tenants had breached their contract.

Article 1531J (5) of the Civil Code states that when the property is the main headquarters of a band club, the Rent Regulations Board or the court should not order the eviction of tenants from a property when structural alterations made without the consent of the owner are related to activities for the band club.

The Court of Appeal issued a partial judgement concluding that there were grounds to support the eviction of the Stella Maris Band Club from its rented premises but that, in view of the recent changes to the law, which the judgement specifically notes could impinge on the landlords’ fundamental human rights, the court had to refrain from ordering eviction or otherwise at this stage.

The Court of Appeal then referred the case to the Civil Court (First Hall) in its constitutional jurisdiction (the “Constitutional Court”)  to give its ruling on the matter and, since the amendment applies retrospectively to pending cases or even cases which have been concluded, the court granted the landlords time to contest the law.

This most recent sentence handed by the Constitutional Court on Thursday answers that question. The Constitutional Court noted that there is no sufficient “compelling public interest” to justify the introduction of the new article in retrospective to overrule the right for a fair hearing.

“The state does not have unlimited power to legislate in favour of the band clubs to the detriment of private citizens,” Chief Justice Chetcuti stated.

The protection of the band club is of public interest, the ruling notes, but it is also in the public’s interest to protect legal certainty and for parties involved in the case to have the ability to seek legal remedy, “a pillar in a country’s rule of law”.

Historically, a number of band clubs benefit from ‘old’ leases which, under laws passed in the 1970s, became automatically renewable in perpetuity, typically for unreasonably low annual rents.

Under that law, which has been repeatedly found by the European Court of Human Rights to be in breach of owners’ human rights, one of the few grounds for eviction of a tenant under a protected lease was breach of contract including a structural alterations clause.

The Chief Justice, therefore, ruled that the introduction of the new article in the civil law as the trial was already ongoing went against the owner’s human rights and that the band club does not benefit from the protection laid out in the article.

The case was thrown back to the Court of Appeal which will, unless the Government appeals, now finally decide on the eviction case.