F OUR T H SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4251/02 by Benny SALIBA against Malta

The European Court of Human Rights ( Fourth Section), sitting on 23 November 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr G. Bonello , Mr M. Pellonpää , Mr K. Traja , Mr L. Garlicki , Mr J. Borrego Borrego , Ms L. Mijović, judges , and Mr M . O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 7 May 2001 ,

Having regard to the partial decision of 27 November 2003 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Benny Saliba, is a Maltese national, who was born in 1941 and lives in Gozo ( Malta ). He is represented before the Court by Mr I.R. Refalo and Mrs T. Cachia, lawyers practising in Malta . The respondent Government were represented by Mr S. Camilleri , Attorney General .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. The background of the case and the demolition order

In 1983 and 1985 the applicant acquired ownership of a plot of land in Gozo , on which a storage facility had been built , and the utile dominium of another plot of land. The applicant alleges that his lands are located far from inhabited areas and that it would be impossible to cultivate them without having a storage facility for the necessary agricultural equipment and machinery.

In a summons of 7 January 1985 , the p olice charg ed the applicant with having carried out construction works on his land without having obtained the necessary permits. He was therefore arraigned before the Criminal Court of Judicial Police. The prosecution requested that the punishment established by law be applied and the applicant ordered to demolish the storage facility.

In a judgment of 18 July 1988 , the Criminal Court of Judicial Police acquitted the applicant. No penalty was imposed on him, nor was he ordered to demolish the storage facility in question.

On 26 August 1988 the p olice issued another summons against the applicant for having carried out unauthorised building works.

In a judgment of 21 June 1989 , the Criminal Court of Judicial Police found the applicant guilty of the charge brought against him and ordered him to pay a fine of 50 Maltese Lire (Lm). It also gave the applicant a month within which to comply with the law, a penalty of Lm 25 being imposed for each day of default. Under this judgment, the applicant was obliged to demolish the storage facility.

The applicant appealed against this decision, pleading that he had been judged twice for the same facts and protesting his innocence.

In a judgment of 15 October 1992 , the Court of Criminal Appeal allowed the applicant ' s plea of ne bis in idem and revoked the judgment of 21 June 1989 . However, the court observed that the evidence before it demonstrated that the applicant ' s building had been constructed without the required permit. Therefore, it ordered that the building be demolished by the police at its expense. This decision was adopted on the basis of Article 17(9) of Chapter 10 of the Laws of Malta (Code of Police Laws), a provision which provides that an order to demolish may be imposed “even where the person charged is acquitted of the charge and the court is satisfied that the building to which the charge refers has been erected in contravention of this section”. The Court of Criminal Appeal observed that the aim of the said article was “to do away with the existing state of illegality even if the accused is acquitted”.

2. The applicant ' s constitutional application

Invoking Articles 7 of the Convention and 1 of Protocol No. 1, the applicant introduced a constitutional application before the Civil Court ( First Hall ) . He observed that his property had to be demolished even though he had been found not guilty of the accusations brought against him, and underlined that this became possible only after 6 June 1988, when Article 17(9) of Chapter 10 of the Laws of Malta was amended. Before that date, no order for demolition could have been imposed on an acquitted person. As the criminal offence had allegedly been committed before that date, the punishment imposed could not be considered foreseeable.

In a judgment of 9 October 1998 , the Civil Court rejected the applicant ' s claim.

It observed that the applicant had not been deprived of his property, the measure complained of being aimed rather at regulating and controlling the use of property. The applicant had not contested the right of the State to control the building development of the country and to submit building works to a system of permits and authorisations. His allegations were confined to arguing that imposing a demolition order on an owner who had been found not guilty had breached the fair balance which should exist between the general interest of the community and the protection of the rights of the individual. However, the Civil Court could not subscribe to this argument. It noted that if the State had a legitimate interest in not having any constructions on a plot of land, the demolition of an unlawful structure only restored the status quo ante and was therefore a measure proportionate to the aim sought to be achieved. The criminal liability of the owner of the land could not be considered a pre-requisite for adopting such measure.

As far as Article 7 of the Convention was concerned, the Civil Court observed that in a judgment of 6 December 1994 , given in the case of the P olice v. Mario Bezzina, the Criminal Court had examined the nature of a demolition order and concluded that it constituted a punishment. However, the Civil Court could not share this opinion. In fact, a “punishment” was not intended, as a civil remedy, to restore the status quo ante , but to place the author of the offence, by mean of a fine or a term of imprisonment, in a worse position than when he committed the criminal act. As the demolition order was intended only to prevent the author of the offence from gaining an unlawful advantage, it was not dependent on a finding of guilt and could not be considered a penalty within the meaning of Article 7 of the Convention.

The applicant appealed to the Constitutional Court .

In a judgment of 20 December 2000 , the Constitutional Court , considering that the Civil Court had correctly enunciated the principles applicable in the case at issue, rejected the applicant ' s appeal. It recalled that it was not contested that the building in question had been constructed without a permit and that it was still not covered by the required permit. It was therefore abusive and illegal and the State had clearly a right to remove it. It was also noted that the Court of Criminal Appeal had found and declared that a criminal act had been committed, even if it could not attribute that act to the applicant. Independently of who was guilty and who had breached the law, the judicial organs should have intervened in order to re-establish the rule of law. The only way to do this was to order the demolition of the unlawfully constructed building.

B. Relevant domestic law

Before the adoption of the amendments which entered into force on 6 June 1988 , Article 17 of Chapter 10 of the Laws of Malta (Code of Police Laws) re a d as follows:

“(2) Any person, who does or causes or allows to be done anything for the doing of which a permit is required ... when there is not such permit ... shall be guilty of an offence and shall be liable on conviction to a fine ( multa ) of not less than fifty liri and not more than one hundred liri.

  (3) The court, besides awarding the punishment referred to in the last preceding subsection, shall order the offender to remove the causes of the offence and to undo anything which was done without a permit ... ”.

Article 11(2) of Act X of 1988 amended this provision by adding a subsection (9), which reads as follows:

“(9) The provisions of subsections (3), (4), (5), (6) and (8) of section 321 of this code shall apply in the case of any offence under subsection (2) of this section even where the person charged is acquitted of the charge and the court is satisfied that the building to which the charge refers has been erected in contravention of this section”.

Section 321 of the Code of Police Laws concerns the domestic court ' s power to order the offender “to abate the nuisance arising from the contravention”.  

COMPLAINTS

1 . Invoking Article 7 of the Convention, the applicant alleges that a “penalty” was imposed on him which was not provided by the law in force at the time the alleged offence was committed.

2. Invoking Article 1 of Protocol No. 1, the applicant alleges that the demolition order infringed his right to the peaceful enjoyment of his possessions.

THE LAW

1 . The applicant consider ed that the order to demolish the structure was a “penalty” not provided by the law in force at the time the alleged offence was committed. He invoke d Article 7 of the Convention, which reads as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

1. The parties ' submissions

( a ) The Government

The Government argue d that Article 7 of the Convention wa s not applicable in the present case, as the order imposed on the applicant did not amount to a “penalty” within the meaning of this provision. They observe d , in the first place, that the demolition was ordered in the same judgment which acquitted the applicant, and was therefore not imposed following a conviction for a “criminal offence”. In particular, while it is a criminal offence to carry out unauthorised construction works, it is not an offence to be, like the applicant, the owner of the land on which third persons have carried out the works at issue.

Moreover, the purpose of the demolition was to remove something which was not in conformity with the law; therefore, its aim was to regulate and to put things back to the status quo ante and not to punish. The Government emphasize d that in a country like Malta , with a density of more than 3,000 persons per square mile, the question of building development regulation is very sensitive. Therefore, i t would be unreasonable to prevent the State from remov ing unauthorised constructions carried out by persons who are unknown, dead or for any other reason incapable of being brought to trial.

Finally, the demolition order wa s clearly classified as not being a penalty under Maltese law and the fact that the measure was adopted in the ambit of a criminal procedure was purely incidental. In this respect, the Government recall ed that under the Building Permit Act adopted in 1988, the taking of practically similar measures wa s totally administrative.      

( b )  The applicant

The applicant observe d that in 1985 he ha d been accused of having erected a structure without obtaining the rele vant permit ; the prosecuting authority asked the court to find him guilty and to order the removal of the structure. The competent tribunal had the power to order such removal only if the accused was found guilty. Although he has been acquitted, the applicant was again charged with the same offence three years later . However, in the meanwhile the law had been amended, and the removal of the element giving raise to the accusation could be ordered irrespective of the guilt or innocence of the accused.

In the applicant ' s view, the nexus originally required between the finding of guilt and the removal showed that the demolition order was a form of punishment. This order was in fact prescribed in the Criminal Code and was intimately tied t o the finding of guilt; moreover, it was apparent from the relevant provisions of law that the offence of constructing a structure without a permit could lead to an order for removal to be imposed on the offender. The subsequent abolition of the link between guilt and the removal could not impair the punitive character of the demolition order.

The applicant also observe d that the demolition order was imposed in criminal proceedings, by a court of criminal jurisdiction and following a criminal charge brought against him. It was intended to deter re-offending and led to punitive deprivation of possession. 

2. The Court ' s assessment

The Court must first determine whether the demolition order constituted a “penalty” within the meaning of Article 7 § 1 of the Convention. The wording of that provision indicates that the starting-point in any assessment of the existence of a penalty is whether the measure in issue is imposed following conviction for a “criminal offence” (see Welch v. the United Kingdom , judgment of 9 February 1995, Series A no. 307-A, p. 13, § 28).

In the present case , at the time the Court of Appeal ordered the applicant to demolish his storage facility, this order did not depend on any finding of guilt , and was based on Article 17(9) of Chapter 10 of the Laws of Malta (Code of Police Laws) , which applies “even where the person charged is acquitted of the charge ” . Indeed, the applicant ' s conviction had been quashed by the Court of Appeal, and the demolition order did not in any way put into question the applicant ' s criminal liability. In these circumstances, the Court is unable find any direct link between the commission, by the applicant , of a criminal act and the order to demolish the storage facility.

Moreover, as the Civil Court and the Constitutional Court rightly pointed out, the aim of the demolition order under the new regulations was not to punish the author of an illegal act, but rather to restore the status quo ante and to re-establish the rule of law . The order in question was therefore a remedy rather than a punishment.

Accordingly, it cannot be concluded that the order in issue involved a finding of guilt pursuant to a criminal charge; it therefore did not constitute a “penalty” within the meaning of Article 7 of the Convention (see, mutatis mutandis , Yildirim v. Italy (Dec.), no. 38602/02, CEDH 2003-IV ; M . v. Italy , no. 12386/86, Commission decision of 15 April 1991, Decisions and Reports (DR) 70, pp. 59 and 93-98). That provision is accordingly not applicable in the case.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3, and must be reje cted pursuant to Article 35 § 4

2 . The applicant consider ed that the order to demolish his storage building amounted to a violation of his right to the peaceful enjoyment of his possessions. He invoke d Article 1 of Protocol No. 1, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

1. The parties ' submissions

(a) The Government

The Government consider ed that the applicant ha d not been deprived of his possessions. The demolition order was in fact not aimed at interfering with the enjoyment of property, but at regulating the use of property, ensuring compliance with the current r ule s.

According to the Government, the measure complained of was taken in accordance with the conditions provided by law, as it was clear – and not contested by the applicant – that the storage building was erected without the required permits. The fact that the procedure by which the law was enforced was not available at the time of the commission of the offence, but only at the time of the trial , would not be relevant, as the Convention does not prohibit the immediate application of procedural laws.

Moreover, a fair balance ha d been struck between the demands of the general interest of the community and the requirements of the protection of the applicant ' s fundamental rights. In this respect, the Government note d that the State should have a right to regulate the physical development of the country and that the construction of buildings should be submitted to norms , procedures and building permit s . These regulations are even more necessary in a small and densely populated island like Gozo.

The Government observed that if a planning regulation wa s required, then there wa s also a requirement to reinstate things to the position they were before an infringement occurred. In particular, it would not be unreasonable to order the demolition when the owner of the construction wa s not the person who committed the alleged offence. To hold otherwise would be tantamount to accept an illegal construction each time the perpetrator of the offence was able to transfer his land to third, bona fide parties. The Government also recall ed that it wa s open to the latter to seek damages from the transferor.           

(b) The applicant

The applicant note d that he had acquired the land on which the storage facility was built and that he was using it for farming purposes. The storage facility therefore constituted a “possession” within the meaning of Article 1 of Protocol No. 1. The demolition clearly amounted to a “deprivation” , as its consequence was the taking away of the enjoyment and use of the structure.

The applicant consider ed that the deprivation in issue was not in accordance with the law applicable at the time of the commission of the offence. When he had acquired the land, it was not foreseeable that a demolition order could be issued were he to be found not guilty of erecting the storage facility. In particular, it was not foreseeable that the law would be amended, that he would be tried twice for the same offence and that in the second trial the new law would have be en applied retrospectively.

The applicant moreover consider ed that, taking into account the fact that he was acquitted of the criminal charges against him, the measure complained of breached the fair balance which should exist between the general interest of the community and his individual rights.

2. The Court ' s assessment

The Court considers, in the light of the parties ' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant ' s complaint concerning the alleged violation of Article 1 of Protocol No. 1 ;

Declares the remainder of the application inadmissible.

Michael O ' Boyle Nicolas Bratza Registrar President