FOURTH SECTION

DECISION

Application no . 22515/16 Paul MAGRI and Jane MAGRI against Malta

The European Court of Human Rights (Fourth Section), sitting on 2 M ay 2017 as a Chamber composed of:

Ganna Yudkivska, President, Vincent A. De Gaetano, Paulo Pinto de Albuquerque, Faris Vehabović , Egidijus Kūris , Iulia Motoc, Marko Bošnjak , judges, and Marialena Tsirli, Section Registrar ,

Having regard to the above application lodged on 19 April 2016,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Paul Magri and Ms Jane Magri, are Maltese nationals who were born in 1950 and 1953 respectively and live in Qormi. They were represented before the Court by Dr J. Brincat, a lawyer practising in Marsa.

A. The circumstances of the case

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

1. Background to the case

3. The applicants owned a piece of land in Qormi, Malta, consisting of a rural building and an adjoining piece of land. No building permit existed at the relevant time in regard to this land.

4. In 1994 or thereabouts works were being carried out in the valley situated below the applicants ’ land. At the same time part of the applicants ’ land was being used as a road in order to provide temporary access, for large vehicles and machinery, to the valley where the works were being carried out. At the time the applicants tolerated this situation.

5. In 2000 the road was tarmacked by the authorities. It appeared that the Qormi Local Council (hereinafter “the Local Council”) considered that this temporary access road, as well as an adjoining piece of land (also owned by the applicants, which had been used by the Local Council to build a football ground in 2001 or thereabouts, despite a lack of authorisation), were government property.

6. At the time the applicants permitted the use of their land by third parties, and raised no objections to the Local Council ’ s actions, because they had no pressing need of the property.

7. In 2007 the Local Council claimed that the land (both the road and the land used for the football ground) was public property.

2. Eviction proceedings instituted by the applicants (no. 425/2007)

8 . In 2007 the applicants instituted civil proceedings (before the Civil Court (First Hall) in its ordinary jurisdiction) for eviction, on the grounds that the Local Council was occupying the part of the land used as a football ground without title. Employees from the then Department of Land testified that the land in question had never been public property and had never been the subject of a declaration of expropriation in the public interest.

9. During those proceedings a constitutional complaint was also raised.

10 . A decision in the case appears to have been delivered on 30 September 2014. The applicants made no reference to the outcome of this case in their application.

3. Spoliation proceedings instituted by the Local Council

11. On 29 July 2008 the applicants built walls around the land owned by them, with the result that access to the road was no longer possible. On 26 September 2008 the Local Council instituted civil proceedings against the applicants, arguing that they were blocking the road, that there had been spoliation of the road, and that they were preventing the Local Council from exercising its duty to administer and maintain the road.

12. During the proceedings, although the applicants ’ legal counsel appeared at the relevant hearing and made submissions, the applicants themselves failed to participate in the proceedings.

13. By a decision of 25 October 2010 the Civil Court (First Hall), in its ordinary civil jurisdiction, found against the applicants. The court noted their absence and the lack of any evidence put forward by them, despite the repeated attempts of their legal counsel. Moreover, the case being an actio spolii – which had to limit itself to the question of possession and not to the actual ownership of the land – the court found that the plaintiffs (the Local Council) had satisfied the three conditions for the success of such an action by proving, inter alia , that they had possession of the land in question at the time the walls were built.

14. The applicants appealed that decision.

15 . On 24 June 2011 the Court of Appeal confirmed the first-instance judgment, to the effect that the Local Council had possession of the land at issue, since it was the Local Council which maintained the road and traffic regularly used it.

4. Applications before the Malta Environment and Planning Authority

(a) The applicants ’ application

16. Pending the conclusion of the above proceedings, in 2008 the applicants submitted an application (no. 05787/08) to the Malta Environment and Planning Authority (hereinafter “the MEPA”) for a permit to develop their land (including the land at issue). They wished to develop it into a single-storey gymnasium/fitness centre.

17. The Local Council objected on several grounds, including the fact that the proposed development was located on a public road used by both pedestrians and vehicles.

18. In a report drawn up by a MEPA case officer, it was proposed to reject the objections raised by the Local Council. He considered the development acceptable and suggested that the necessary building permit be issued.

19. On an unspecified date the Planning Directorate recommended that the permit be granted.

20. The MEPA board considered that the applicants ’ pending application depended on the outcome of the Local Council ’ s Planning Control (PC) application (see below) , therefore it chose to postpone its final assessment until the outcome of that application.

21. Following the outcome of the PC application (see below), on an unspecified date the Planning Directorate changed its position and recommended that the application be refused, on the grounds that the proposed development would encroach beyond the proposed official building alignment as set out by the MEPA ’ s Land Surveyor.

22 . The applicants filed an appeal with the Revision Tribunal. A decision in the appeal is still pending. The applicants allege that the Revision Tribunal is awaiting the outcome of the application before this Court.

(b) The Local Council ’ s application (9/11)

23. On 2 March 2011 the Local Council submitted a PC application to the MEPA, requesting that the existing road be formalised and thus considered a schemed road.

24 . The applicants objected, since no such road existed in any formal plans, while the MEPA argued that, since it was being used as a road, it had to be considered a road.

25. On 26 January 2012 the Local Council ’ s PC application was approved, resulting in the existing road being recognised as a schemed road, in the interest of proper planning.

26. According to the applicants, no avenue of appeal against such a decision existed, in accordance with Article 28 of the Development and Planning Act (Chapter 356 of the Laws of Malta), since Article 59 of the Environment and Development Planning Act (Chapter 504 of the Laws of Malta) had not yet come into force.

5. Constitutional redress proceedings

27 . On 20 February 2012 the applicants instituted constitutional redress proceedings, asking the Civil Court (First Hall), in its constitutional competence, to find a violation of Article 1 of Protocol No. 1 to the Convention and declare the MEPA decision in favour of the Local Council ’ s PC application unlawful, and requesting compensation for pecuniary and non-pecuniary damage.

28. On 30 September 2014 the Civil Court (First Hall), in its constitutional competence, decided not to take cognisance of the merits of the case, in so far as the applicants had not exha usted ordinary remedies which could have sufficiently addressed the infringements of their rights. Referring to the general principles of the Court ’ s case-law, it considered that the applicants had an effective remedy, namely an ordinary civil remedy, which they had not used. Indeed, the applicants had instituted ordinary civil proceedings (no. 425/2007 JZM, see paragraphs 8 to 10 above) in relation to that part of the land where a football pitch had been built, despite their also raising a constitutional complaint under Article 1 of Protocol No. 1 to the Convention in that case. Therefore, there was no reason why the applicants could not have utilised the same ordinary remedy with regard to the part of the land which had become a road, instead of instituting constitutional redress proceedings in this regard. While it was true that, in the present case, the applicants were claiming compensation in respect of pecuniary and non ‑ pecuniary damage, such claims were to be made only after a finding in favour of the applicants by the ordinary court.

29. Furthermore, the court held that, in relation to their claim against the MEPA decision, while it was true that no avenue of appeal existed against it, the applicants had failed to utilise the judicial review procedure (Article 469A of the Code of Organisation and Civil Procedure). While that procedure was limited in the form of redress it could give (Article 469 A( 5)), the applicants could nevertheless have asked the court to annul the MEPA decision in favour of the Local Council.

30. The applicants appealed, claiming that they did not have an ordinary, effective, just and adequate remedy available to them. In particular, they argued that, while it was normal to lodge an eviction action against the Local Council occupying the land used as a football ground, it could not lodge an eviction action in relation to a piece of land which was not physically occupied, but solely a projected road on paper.

31. By a judgment of 30 October 2015 the Constitutional Court rejected the applicants ’ claims and upheld the decision of the first-instance court.

32 . The Constitutional Court noted that, by a judgment of 24 June 2011, the Court of Appeal had confirmed that the Local Council had possession of the land. It followed that an ordinary civil action for eviction was possible. As to the remedy of judicial review, while it was true that such a review was not intended to deal with human rights violations, and that, according to domestic case-law, [Article 469A] sub-article 1 (a) referred to constitutional violations other than those arising from fundamental human rights and freedoms, in the present case the applicants should have used that remedy: requesting that the court annul the MEPA decision on application 9/11 on the grounds that it had been made on the basis of an allegedly unlawful premise ( namely, a false declaration made by the MEPA as to the existence of a road). Coupled with this, the applicants could have used ordinary civil proceedings for a declaration that the passage or road in question was their property and to seek the eviction of the Local Council therefrom in so far as they claimed that the Local Council was occupying the land illegally in the absence of an expropriation according to law; as well as requesting compensation for the unlawful occupation of premises. According to the Constitutional Court, these were ordinary, effective, efficient, and available remedies which should have been exhausted before the applicants instituted extraordinary constitutional redress proceedings.

B. Relevant domestic law

1. The Code of Organisation and Civil Procedure

33 . Article 469A of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, in so far as relevant, reads as follows:

“ (1) Saving as is otherwise provided by law, the courts of justice of civil jurisdiction may enquire into the validity of any administrative act or declare such act null, invalid or without effect only in the following cases:

( a ) where the administrative act is in violation of the Constitution;

( b ) when the administrative act is ultra vires on any of the following grounds:

(i) when such act emanates from a public authority that is not authorised to perform it; or

(ii) when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon; or

(iii) when the administrative act constitutes an abuse of the public authority ’ s power in that it is done for improper purposes or on the basis of irrelevant considerations; or

(iv) when the administrative act is otherwise contrary to law.

(2) In this article -

" administrative act" includes the issuing by a public authority of any order, licence, permit, warrant, decision, or a refusal to any demand of a claimant, but does not include any measure intended for internal organization or administration within the said authority

...”

2. The Environment and Development Planning Act

34. Sections 40 and 41 of the Environment and Development Planning Act, Chapter 504 of the Laws of Ma lta, in so far as relevant read as follows:

“40. (1) There shall be a Tribunal, to be known as the Environment and Planning Review Tribunal, consisting of three members, one being a person versed in environment or development planning, who shall preside, and a lawyer and an architect, each of whom shall be appointed by the President acting on the advice of the Minister.

41. (1) Subject to those articles which specifically exclude the right to appeal before the Tribunal, and to articles 81(14), 82(4) and 86, the Tribunal shall have jurisdiction to:

( a ) hear and determine all appeals made by the applicant or a person aggrieved by a notice issued under the provisions of Part VI on any decision of the Authority on any matter of development control, including the enforcement of such control, or appeals made by any person on any decision of the Authority relating to environment protection, including environment assessments, access to environmental information and the prevention and remedying of environmental damage:

...

(2) Unless otherwise provided under any provision of this Act, an appeal may be lodged before the Tribunal within thirty days from date of notification of the decision or order by the Authority.

(3) In case of a development listed in the Seventh Schedule, at the request of the appellant made concurrently with the application for the appeal, through a partial decision, the Tribunal may suspend the execution of the development, in whole or in part, as approved by the development permit subject of the appeal, under those terms, conditions and other measures it may deem fit:

Provided also that the application is not for a development which, in the opinion of the Minister is of strategic significance or of national interest, related to any obligation ensuing from a European Union Directive, affects national security or affects interests of other governments.

(4) In the cases referred to in sub-article (3), the Tribunal shall hold its first hearing be within six working days from receipt of the appeal, and shall not suspend the execution of such a permit unless it is satisfied, after hearing all the parties, that unless the execution of the permit is suspended the prejudice that would be caused would be disproportionate when compared with the actual doing of the thing so permitted or if the request is deemed as frivolous or vexatious:

Provided that the Tribunal shall justify the decision suspending the execution of the development and shall grant its final decision on the merits of the appeal within three months from the date of the first hearing of the appeal:

Provided further that the suspension of the execution of such a permit may not be more than three months from the date of the first hearing of the Appeal before the Tribunal, and the suspension order shall be deemed to have elapsed ipso iure after the lapse of such a period.

(5) In all other appeals, the first hearing of the Tribunal shall be held within three months from receipt of the appeal.”

COMPLAINTS

35. The applicants complained of the interference with their property. They invoked Article 1 of Protocol No. 1 to the Convention and Article 13 in conjunction with Article 1 of Protocol No. 1. They submitted that they had been de facto deprived of their land, and that the judicial review procedure was lengthy and had no prospects of success in the present case.

THE LAW

36. The applicants complained of the interference with their property (the part used as a passageway/road), both in respect of the Local Council ’ s squatting on their property, which had resulted in de facto expropriation, and in respect of the MEPA ’ s refusal to grant their application despite the legitimate expectation they had from the applicable schemes. This had violated their rights as provided for in Article 1 Protocol No. 1 to the Convention. The applicants also complained that they had been denied an effective remedy, as provided for in Article 13 of the Convention. The relevant provisions read as follows:

Article 13

“Everyone whose rights and freedoms as set forth in this convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 1 of Protocol No. 1 to the Convention

“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.”

37. The applicants submitted that the Local Council had interfered with their property by abusively and unlawfully acquiring possession of their land. They alleged that there was no evidence showing that the de facto expropriation had been done in the public interest, according to the regular procedural methods, or that it was proportionate. Further, they had been hindered from developing their land when their MEPA application (no. 057875/08) had been refused. They argued that the application of a government entity, such as the Local Council, requesting a change in the building scheme to their detriment was disproportionate.

38. The applicants argued that the remedies available to them were not effective. The courts dealing with the constitutional redress proceedings, at first instance and at second instance, had both failed to take cognisance of the merits of the case, proposing to the applicants the use of two other remedies: judicial review and ordinary civil proceedings. However, the applicants submitted that the scope of judicial review proceedings was limited, in that it was only possible to enquire into the validity of an administrative act or declare such an act null, invalid or without effect if it fell within one of the circumstances listed by the law. The test being one of unreasonableness, the balance tipped in favour of the authority, which always claimed some justification for their decision. Further, that procedure did not permit the applicants to raise human rights issues, and, according to the applicants, could not deal with a complaint concerning expropriation, formal or de facto , as this would be ultra vires . The applicants further submitted that the Constitutional Court had failed to explain the chances of success of such an action. In their view, if a judgment had been in their favour, the civil court would have remitted the case to the authority, which could have given the same decision once more. The applicants further submitted that judicial review proceedings over two levels of jurisdiction had taken around five years; therefore the proceedings had been excessively lengthy. They relied on a domestic case which had lasted eight years.

39. The Court begins by observing that it is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation. The rule is therefore an indispensable part of the functioning of this system of protection ( Vučković and Others v. Serbia [GC], no. 17153/11 , § 69, 25 March 2014) .

40. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many authorities, Akdivar and Others v. Turkey , 16 September 1996, § 65, Reports of Judgments and Decisions, 1996 ‑ IV, and Vučković and Others , cited above, § 70).

41. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others , cited above, § 66, and Vučković and Others , cited above, § 71). To be effective, a remedy must be capable of directly redressing the impugned state of affairs and must offer reasonable prospects of success (see Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006 ‑ II).

42. There is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others, cited above, § 67, and Vučković and Others , cited above, § 73 ). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Akdivar and Others , cited above, § 71; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 20 09, and Vučković and Others , cited above, § 74).

43. The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. Furthermore, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see Kud Å‚a v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI, and AliÅ¡ić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 131, ECHR 2014).

44. The Court observes that, in order to consider whether the applicants have exhausted domestic remedies for the purposes of their complaint under Article 1 of Protocol No. 1 to the Convention, it must first deal with their complaint under Article 13 that no effective remedies were available to them. For this purpose, the Court will assume that the applicants have an arguable claim under Article 1 of Protocol No. 1 to the Convention.

46. Further, as also held by the Constitutional Court (see paragraph 32 above), the applicants could have pursued judicial review proceedings in connection with the MEPA decision in favour of the Local Council ’ s application. The applicants argued that that decision was tainted by unlawfulness (see paragraph 27 above) and based on a falsehood (that a road already existed, see paragraph 24 above). The Court observes that an action for judicial review may be lodged, inter alia , when the administrative act in question constitutes an abuse of a public authority ’ s power, in that it is done for improper purposes or on the basis of irrelevant considerations; or when the administrative act is otherwise contrary to law (see paragraph 33 above). In the Court ’ s view, the circumstances leading to that decision thus constituted prima facie grounds on which to base an action for judicial review. Indeed, the applicants have not shown that such an action would have had no prospects of success in their case (see, by contrast, Sammut and Visa Investments Limited v. Malta (dec.) 27023/03, §§ 62-63, 16 October 2007). In such proceedings, the domestic court could have annulled the impugned decision, therefore eliminating any interference with the applicants ’ property in that respect. Moreover, in the absence of a decision favourable to the Local Council, it was likely that the development application lodged by the applicants would not have been prejudiced, thus resolving the relevant grievance raised by the applicants. Indeed, in respect of that grievance, the Court also notes that the refusal of the applicants ’ development application has also, to date, not been finalised (see paragraph 22 above), given that it is pending before another body whose effectiveness is not in dispute, namely the Revision Tribunal ( compare to Lay Lay Company Limited v. Malta , no. 30633/11, §§ 57 and 61, 23 July 2013, where the Court found that the applicant had access to the Planning Appeals Board (now the Revision Tribunal) and a further appeal to the Court of Appeal, an effective legal avenue for the purposes of Article 6 § 1).

47. With regard to the length of the judicial review proceedings, the Court notes that, while it is true that the speed of the procedure for remedial action may also be relevant to whether it is practically effective in the particular circumstances of a given case for the purposes of Article 35 § 1 of the Convention (see McFarlane v. Ireland [GC], no. 31333/06, § 123, 10 September 2010), the subject matter of this case is not one requiring particular urgency (compare and contrast Story and Others v. Malta , nos. 56854/13, et al. , 29 Oct ober 2015 concerning an Article 3 complaint ; and also Mikalauskas v. Malta , no. 4458/10, 23 July 2013 concerning an Article 5 complaint ). Furthermore, the applicants, who relied on only one case to substantiate this argument, failed to establish that judicial review proceedings would inevitably take an unreasonably long time.

48. Having examined all the material submitted to it, the Court considers that the applicants have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion concerning the available remedies other than that reached by the Constitutional Court.

51. As to the complaint under Article 1 of Protocol No. 1 to the Convention, the Court has already found (in paragraph 50 above) that the applicants had effective and available remedies; it follows that there is no reason to question the decision of the domestic courts in that respect.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 1 June 2017 .

Marialena Tsirli Ganna Yudkivska Registrar President