FOURTH SECTION

CASE OF SALIBA v. MALTA

(Application no. 4251/02)

JUDGMENT

STRASBOURG

8 November 2005

FINAL

08/02/2006

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Saliba v. Malta ,

The European Court of Human Rights (Fourth Section), sitting 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 deliberated in private on 23 November 2004 and on 11 October 2005 ,

Delivers the following judgment, which was adopted on the last ‑ mentioned date:

PROCEDURE

1 . The case originated in an application (no. 4251/02) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Maltese national, Mr Benny Saliba (“the applicant”), on 7 May 2001 .

2 . The applicant, who had been granted legal aid, was represented by Mr I. Refalo and by Mrs T. Cachia, two lawyers practising in Malta . The Maltese Government (“the Government”) were represented by their Agent, Mr S. Camilleri , Attorney General.

3 . The applicant alleged, in particular, that his right to the peaceful enjoyment of his possessions had been violated by an order to demolish his storage building.

4 . The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

5 . On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1).

6 . By a decision of 23 November 2004 , the Court declared the application partly admissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7 . The applicant was born in 1941 and lives in Gozo ( Malta ).

A. The background of the case and the demolition order

8 . 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 alleged that his lands are located far from inhabited areas and that it would have been impossible to cultivate them without having a storage facility for the necessary agricultural equipment and machinery.

9 . In a summons of 7 January 1985 , the police charged 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.

10 . 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.

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

12 . 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 Liri (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.

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

14 . 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 according to which 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 [was] acquitted”.

B. The applicant’s constitutional application

15 . Invoking Article 7 of the Convention and Article 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 had been 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.

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

17 . 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.

18 . 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 Police 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 means of a fine or a term of imprisonment, in a worse position than the one he was in 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.

19 . The applicant appealed to the Constitutional Court .

20 . 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. The Constitutional Court also noted that the Court of Criminal Appeal had found 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.

II. RELEVANT DOMESTIC LAW AND PRACTICE

21 . Before the adoption of the amendments which entered into force on 6 June 1988 , Article 17(2) and (3) of Chapter 10 of the Laws of Malta (Code of Police Laws) read 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 ...”.

22 . 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”.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1

23 . The applicant considered that the order to demolish his storage building amounted to a violation of his right to the peaceful enjoyment of his possessions. He invoked 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.”

A. The parties’ submissions

1. The Government

24 . The Government considered that the applicant had not been deprived of his possessions. The demolition order was in fact aimed at regulating the use of property, ensuring compliance with the current rules.

25 . According to the Government, the measure complained of had been taken in accordance with the conditions provided by law, as it was clear – and not contested by the applicant – that the storage building had been 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.

26 . Moreover, a fair balance had 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 noted 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 permits. These regulations are even more necessary in a small and densely populated island like Gozo.

27 . The Government observed that if a planning regulation was required, then there was also a need 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 was 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 recalled that it was open to the latter to seek damages from the transferor.

2. The applicant

28 . The applicant noted 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.

29 . The applicant considered 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 been applied retrospectively.

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

B. The Court’s assessment

32 . It is not contested by the Government that the storage building constituted a “possession” within the meaning of Article 1 of Protocol No. 1. The Court notes that the applicant, who had acquired ownership of the plot of land on which the storage facility was built, was regarded as the owner of it.

36 . A measure aiming at controlling the use of property within the meaning of this second paragraph can only be justified if it is shown, inter alia , to be “in accordance with the general interest”. Moreover, any interference with the property must also satisfy the requirement of proportionality. As the Court has repeatedly stated, a fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights, the search for such a fair balance being inherent in the whole of the Convention. The requisite balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth cited above, pp. 26-28, §§ 69-74, and Brumărescu v. Romania [GC], no. 28342/95, § 78, ECHR 1999-VII). Furthermore, the issue of whether a fair balance has been struck “becomes relevant only once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary” (see Iatridis cited above, § 58, and Beyeler cited above, § 107).

2. Compliance with the requirement of lawfulness

37 . The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful. The rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Iatridis cited above, § 58) and entails a duty on the part of the State or other public authority to comply with judicial orders or decisions against it (see Belvedere Alberghiera v. Italy , no. 31524/96, § 56, ECHR 2000-VI). Moreover, the requirement of lawfulness means that rules of domestic law must be sufficiently accessible, precise and foreseeable (see Hentrich v. France , judgment of 22 September 1994, Series A no. 296-A, pp. 19-20, § 42, and Lithgow and Others v. the United Kingdom , judgment of 8 July 1986, Series A no. 102, p. 47, § 110).

38 . The Court observes that the demolition order was adopted on the basis of Article 17(9) of the Code of Police Laws, a provision according to which an unlawfully erected building could be destroyed “even where the person charged is acquitted of the charge” (see paragraphs 14 and 22 above). Nothing shows that this provision has been interpreted or applied by the domestic courts in an arbitrary manner.

41 . The Court therefore concludes that the measure complained of satisfied the requirement of lawfulness within the meaning of Article 1 of Protocol No. 1.

42 . It remains to be determined whether it pursued a legitimate aim and whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.

3. The aim of the interference

43 . Any interference with the enjoyment of a right or freedom recognised by the Convention must pursue a legitimate aim (see Beyeler cited above, § 111).

4. Whether the interference was justified

46 . It is not disputed that the applicant’s storage facility had been erected without a building permit and therefore in blatant violation of the domestic building regulations. In the Court’s opinion, the effect of ordering the demolition of a totally unlawful construction is to put things back in the position they would have been in, had the requirements of the law not been disregarded. In this manner, the authorities guarantee a full protection of the environment as well as deterring other potential offenders.

FOR THESE REASONS, THE COURT

Holds by five votes to two that there has been no violation of Article 1 of Protocol No. 1.

Done in English, and notified in writing on 8 November 2005 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Michael O’Boyle Nicolas Bratza Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Mr Bonello is annexed to this judgment.

N.B. M.O’B .

DISSENTING OPINION OF JUDGE BONELLO JOINED BY JUDGE BORREGO BORREGO

A. Introduction

I voted for finding a violation. I am quite perplexed how the Court deemed a deprivation of property based on, and flowing from, a legal nullity, to be in accordance with the law .

Like several other countries, Malta could have opted to regulate planning and building contraventions by purely administrative measures. Instead, Malta chose the alternative way of having them regulated by due process, in the context of, and as a consequence to, criminal proceedings. The Court has now confirmed that the prosecution need not bother whether the criminal proceedings are valid or invalid, whether in accordance with the rule of law or in defiance of it. That is immaterial. For Strasbourg , that just makes no difference at all.

B. Sequence of relevant facts

The applicant purchased some agricultural land, on which some rural rooms had previously been built, as it resulted later, without planning permit .

The police charged the applicant, under the law as it then stood, with the offence of having carried out construction works without the necessary permit, and requested the criminal court to order the demolition of the rooms.

The court acquitted the applicant and no demolition was ordered.

Meanwhile, Parliament changed the law in the sense that, notwithstanding an acquittal of the person charged, the Court could still order the demolition of a construction built without a planning permit.

The police, disregarding the ne bis in idem anathema and in bald violation of Article 1 of Protocol 7 of the Convention, charged the applicant again with the same criminal offence; the court found the applicant guilty and ordered that the rooms be demolished.

On appeal by the applicant, the Court of Criminal Appeal acknowledged the violation of the ne bis in idem precept and revoked the judgement. Nevertheless, applying the new law, it ordered the demolition of the applicant’s rooms.

C. The Convention – the principle of legality

For the purposes of Article 1 of Protocol No 1, the demolition of the applicant’s rooms could be regarded either as a dispossession, or a control of the use of his property. For either to conform to the Convention, that encroachment on the right of property would still require that it be done in accordance with the law. This is an express, or necessarily implied, condition for any limitation placed by the state on the enjoyment of fundamental rights. There is no such thing, in the vision of the Convention, as an acceptable abridgement of a fundamental right made anyway except in accordance with the law.

The amendment to the law passed by the Maltese legislature makes it possible for the criminal court to order, at the termination of criminal proceedings against an accused person, the demolition of illegally-built structures, even when the accused had been acquitted of the charges brought against him. The new amendment provided that, at the conclusion of legally instituted proceedings, the court may still order the demolition, even though it finds the accused not guilty of the charges.

In the present case, to put it in simple terms, the demolition was not ordered as a sequel to legal proceedings, but as a sequel to illegal proceedings. The very prosecution against the applicant, originating from a violation of the fundamental right not to be tried twice for the same offence (Article 1 of Protocol 7) was, in itself, a legal non- esse , incapable by its very nature of generating legitimate consequences.

For a demolition order to be valid, Maltese law (as amended) requires the concurrence of three elements: (a) the existence of a criminal prosecution against the alleged offender; (b) a determination by the court as to whether the accused was guilty or not; (c) followed by an order for demolition.

The instant case stood this sequence on its head: (a) a null and void, ergo legally non-extant, police prosecution; (b) a quashing of the very existence of the prosecution, with no real finding by the court regarding the guilt or innocence of the accused; (c) followed by an order for demolition. Very little, if anything, survives of the sequential concatenation mandated by Maltese law for the purposes of ‘legality’.

To qualify anything flowing from what the domestic court branded as a legal nullity, as being ‘in accordance with the law’ is stretching the clear letter and spirit of the Convention very far. The Court of Criminal Appeal did not, in substance, find the applicant ‘not guilty’. It declared the very proceedings against him to have been tainted by essential nullity from their very inception . I find considerable difficulty in coming to terms with how an abortion of the law, acknowledged as such by the domestic courts, in Strasbourg passed effortlessly the test of legality.

The Court of Criminal Appeal did not, in substance, rule on the guilt or otherwise of the accused. One could legitimately say that all that court did was to rule on the guilt of the prosecution in instituting proceedings. In that court’s view, those could, yes, be rightly called ‘criminal proceedings’- but only in the sense that prosecuting the applicant a second time for the same actus reus amounted to a criminal act. That court acknowledged the over-riding juridical non ‑ viability and inefficacy of those proceedings against the accused.

D. Considerations

There is no doubt that the rooms in question were in a state of objective illegality (due to the wrongdoing of a third party, not of the applicant). There is equally no doubt that the authorities were in a state of human-rights illegality by instituting the second criminal action against the applicant. When it came to choosing which of the two illegalities to penalize, a court of human rights found more heinous the guilt of the stones than the illegality of a very deliberate human rights violation by the prosecution. This Court blessed the wrongdoing of a state prosecutor whose function it was to repress the wrongdoing of others, rather than be seen to reprieve two rooms somewhere in the middle of nowhere.

For breaching with malice aforethought the fundamental law of the land and the European Convention of Human Rights, a domestic court awarded the prosecution the prize it was after. And an international human rights court endorsed it. My philosophy of values finds that something worth dissenting from.

Many will argue that the objective illegality of the rooms could not be tolerated. That it should never be approved. I, too, detest building contraventions with considerable passion. And I detest murder still more. My aversions, however, hardly lead me to reckon that the rule of law can be bent, so long as the crime does not remain unpunished. I believed that, today, human rights thinking somehow went beyond that. But I stand to be disabused. The end seems to justify the meanness.