FIFTH SECTION

DECISION

Application no . 14501/12 BORG and VELLA against Malta

The European Court of Human Rights ( Fifth Section ), sitting on 3 February 2015 as a Chamber composed of:

Mark Villiger , President, Angelika Nußberger , Ganna Yudkivska , Vincent A. D e Gaetano , André Potocki , Helena Jäderblom , Aleš Pejchal , judges, and Claudia Westerdiek , S ction Registrar ,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicants , Mr Michael Borg, Mrs Olympia Borg, Mr Andrew Vella are Maltese nationals and Mrs Lorena Vella is a Canadian national. They all live in Gozo and they were born respectively in 1975, 1976, 1974, and 1973. They were represented by Dr T. Abela, a lawyer practising in Attard.

2. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General.

A. The circumstances of the case

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

1 . The background to the case

4 . Following a project launched by the Government in 1984 asking the public to identify features of the Maltese cultural and natural heritage which deserved to be included in the Conservation and Preservation Plan for the protection of the environment, a villager suggested protecting the picturesque view, across open sloping fields leading down to the sea, which was visible from north of Nadur, Gozo, in the area at issue in the present case.

5 . Some time later – the Government having accepted the proposal –procedures for the execution of the project commenced. In June 1991 the Commissioner of Land (CoL) expropriated a plot of land in the above-mentioned area – it is not clear whether this land belonged exclusively to the applicants or in part also to Nadur Parish Church – in order to widen an existing road and develop an open panoramic view, known locally as a “belvedere”. In the development phase of the belvedere, the Government demolished a rubble wall on the boundary between expropriated land and the applicants ’ property and installed iron railings to permit an unobstructed view. In due course the area became a designated belvedere, with an unobstructed view overlooking the fields sloping down to the sea. No dispute arose in relation to this (first) expropriation. The applicants ’ property abuts immediately onto and is slightly below the site of the belvedere and is, in effect, part of the view from the said belvedere and part of the sloping fields.

2 . The present case

6 . On an unspecified date the applicants sought planning permission to develop the remaining part of the land owned by them, but the Malta Environment and Planning Authority refused the application on the grounds that the site, although within a development zone, was a protected green area.

7 . Subsequently, on 1 April 2004, the applicants brought an action against the CoL, asking the court to declare that they had the right to erect a wall on the boundary between their land and the expropriated plot (see Relevant domestic law). The CoL did not submit any pleas countering the claim, although he was served with the claim on 23 April 2004.

8 . Since the applicants did not own all the land expropriated in conjunction with the belvedere, the wall in question would not have been built along the entire length of the belvedere. It would only have been built on the two plots owned by the applicants, these being 12.8 metres and 7 metres wide respectively. Although not specified, from the photos and plans provided it would appear that the entire belvedere is approximately 50 metres long.

9 . The case was set down for hearing for 25 June 2004. On that same day the Court of Magistrates (Gozo) in its superior jurisdiction gave judgment in default, upholding the applicants ’ claim, finding that they had the right to build such a “boundary” wall and authorising them to build such a wall “up to the height required by law” under the supervision of a court-appointed architect.

10 . Since no appeal was lodged, the judgment became final.

11 . In the ensuing four years, numerous applications were made to the court by both parties to the suit in respect of technical issues connected with the execution of the above-mentioned judgment, that is, the erection of the proposed wall (these included the removal of items installed on the belvedere so that the wall could be constructed, the question of distances, given the sloping terrain, and the manner in which the boundary wall should be built – over which the CoL disagreed with the interpretation of the architect). A decision in the form of a decree of 21 August 2006, given pursuant to one of the applications, held that the wall had to be built along the boundaries of the land expropriated for the purposes of the belvedere (where a retaining wall already existed) and that it had to be one and half metres high measured “from the belvedere”. A request by the CoL to have the height of the wall measured from the boundaries (the level where the properties met) and not from the surface level of the belvedere was rejected on 22 September 2006. The court therefore rejected the CoL ’ s interpretation as to how the wall had to be built.

12 . The execution of the judgment of 25 June 2004 was to take place on 5 April 2008.

13 . On 2 April 2008 the President of Malta declared that as from 3 April 2008 the Minister for Gozo was to assume the additional duties of Prime Minister during the Prime Minister ’ s absence from Malta. By virtue of a declaration made by the acting President of Malta on 3 April 2008, a piece of land (112 square metres) owned by the applicants – which included part of the strip of land on which they were to build the boundary wall – was expropriated by the CoL for the price of 23,300 euros (EUR).

14 . On 4 April 2008 the CoL asked the court to suspend execution of the judgment in the applicants ’ favour in view of the above-mentioned expropriation, which included part of the applicants ’ land adjacent to the existing retaining wall. According to the CoL there was a public interest in the expropriation for the purposes of safeguarding the environment and particularly the belvedere (and the view therefrom), built at the expense of the taxpayer, from the actions proposed by the applicants.

15 . On 23 April 2008 the court rejected the request as it could not suspend the execution of a judgment which had become final and in respect of which there had been no appeal or retrial.

16 . On 25 April 2008 the CoL lodged a further application asking the court to prohibit the applicants from undertaking any works on the aforementioned plot by reason of the expropriation of 3 April 2008. Given the circumstances, the applicants agreed not to proceed with the building of the wall until the competent court had decided on the validity of the second expropriation. That being so, the court did not consider it necessary to issue the relevant prohibitory injunction.

17 . On 26 April 2008 the applicants lodged a judicial protest noting that they were not accepting the compensation offered and declaring their intention to institute constitutional redress proceedings in relation to the expropriation.

18 . On 7 May 2008 the CoL instituted fresh ordinary civil proceedings, asking the court to declare that the land where the wall was to be built was Government land, to declare the decision of 23 April 2008 null and void – given that the land on which the wall was to be built had now been expropriated for a public purpose – and to revoke any other court decision issued after the 25 June 2004 intended to establish the boundaries between the property of the Government and that of the applicants.

19 . The hearing of the case was suspended in view of the constitutional redress proceedings lodged by the applicants (see below). It does not transpire that they have been resumed.

3 . Constitutional redress proceedings

20 . On 23 July 2008 the applicants instituted constitutional redress proceedings claiming a violation of Article 6 of the Convention – in so far as they had been denied execution of a judgment in their favour – and Article 1 of Protocol No. 1 to the Convention in that the expropriation of 3 April 2008 had not been in the public interest. They further invoked Article 14 of the Convention.

21 . By a judgment of 23 April 2010 the Civil Court (First Hall) in its constitutional competence rejected the applicants ’ claims. It considered that under domestic law an owner had no right to be exempted from an expropriation of property which was carried out in the public interest and in exchange for adequate compensation. That being so, no fair-trial rights arose in relation to the expropriation itself, the right of the individual being limited to contesting the public interest and the compensation at issue in any given expropriation. It held that in the present case the expropriation in 2008 had been made in the public interest to ensure the effectiveness of the 1991 expropriation, the public interest of which (the creation of a belvedere) was not disputed. The fact that certain third parties (people living in the area of Nadur) had more to gain than others did not deprive the expropriation of its public interest, given that the entire Maltese and Gozitan population would benefit from the view. There was nothing wrong in the State ensuring that a plan it had embarked on years before was not frustrated. The court considered that, while the Government ’ s negligence in the proceedings before the Court of Magistrates in Gozo was grave, they had been entitled to take action to correct their mistakes. It further considered that there had not been any discriminatory treatment. The project in 1984 had been started by a socialist Government and then continued by a nationalist Government, and neither the initiation nor the continuation thereof appeared to have been politically motivated. Both administrations were taking action solely for the preservation of the environment. Moreover, while it was true that the 2008 expropriation had been made at a time when the Minister for Gozo was acting Prime Minister and that such an action probably brought most benefit to the residents of Nadur – who were, in the main, of the same political persuasion as the Minister for Gozo – it did not appear that the expropriation (which had been decided on 14 March 2008, that is to say prior to the Minister ’ s being assigned the duties of acting Prime Minister) was a result of any intervention on her part. Neither had it been proved that the applicants were treated differently from others in their position or that the expropriation had been politically motivated.

22 . By a judgment of 30 September 2011 the Constitutional Court rejected an appeal lodged by the applicants. It confirmed in full the first-instance judgment in respect of the claim under Article 1 of Protocol No. 1, as the expropriation was indeed necessary to protect the view which was in the general interest and which would have been frustrated by the building of a wall. It further considered that the applicants had not been denied access to a court as they could still contest the merits of the expropriation in relation to the public interest and the amount of compensation. The fact that the applicants had a judicially recognised right over that land (in the instant case, the right to build a dividing wall when two properties belong to different owners) did not mean that that land could not be expropriated in accordance with the existing legal procedures, subject always to the judicial review of the administrative act of expropriation. Lastly, in relation to the complaint under Article 14 it considered that – even if the Minister had been involved in the expropriation – it had already been found that the expropriation was legitimate, and it was self-evident that a minister had to act, even if it happened that the beneficiaries shared the same political opinion. In the court ’ s view, the argument that – unlike the applicants – the neighbours had direct access to the Minister, enabling them to influence decision-making, did not mean that there had been discriminatory treatment. Similarly, the fact that other people ’ s property had not been expropriated did not mean that the expropriation was discriminatory, as not everyone ’ s property was relevant for the purpose sought to be achieved by the expropriation. Moreover, the applicants were entitled to compensation for the taking of their property.

4. Subsequent occurrences

23 . Pending the proceedings before this Court and after the parties had submitted their observations, by means of a publication in the Government Gazette of 21 August 2014, the President of Malta revoked the President ’ s Declaration of 3 April 2008 which had expropriated the applicant s ’ land.

24 . According to information submitted by the parties, the applicants became aware of the revocation on an unspecified day, weeks after it happened. Subsequently, the applicants informed the Government Agent, who according to the applicants was unaware that the measure had been lifted. The parties met and agreed that the Government agent would inform the Court about the matter.

25 . The Court was eventually informed of the matter on 4 November 2014, both parties having claimed that the delay in informing the Court was due to an oversight and a lack of co-ordination, for which they apologised to the Court.

B. Relevant domestic law

26 . Article 434 of the Civil Code, Chapter 16 of the Laws of Malta reads:

“Every person may construct any wall or building on the boundary-line of his tenement, saving the right of the neighbour to acquire co-ownership of the wall (...)”

Article 408 of the Civil Code, in so far as relevant reads:

“A party-wall between two courtyards, gardens or fields, may be built of loose stones, but must be -

(c) one and one-half metres high, if it is between two fields.”

COMPLAINTS

27. The applicants complain ed under Article 6 of the Convention that the expropriation of 3 April 2008 had been made solely to avoid the execution of the judgment in their favour dated 25 June 2004. They further invoked Article 1 of Protocol No. 1 complaining that the said expropriation had not been made in the public interest but only in the interest of a few persons ( with links to the Minister for Gozo ) who lived in the same road and who wanted to retain an unobstructed view with the ensuing added (financial) value to their property. Moreover, other third parties whose land was in a position like that of the applicants did not have their land expropriated but, on the contrary, were granted building permits. Thus, the applicants were the only ones who had to carry the burden in favour of a few people ’ s private interests. In this light, the applicants also invoked Article 14 complaining further that they received such a treatment only because they did not share the same political opinion as the party in Government at the time, and their own political views differed from those of the persons who would benefit from the applicants ’ impossibility to b uild the wall .

THE LAW

A. The complaints under Article 6 and Article 1 of Protocol No.1.

28 . The Court considers that the complaints of the applicants under Article 6 and Article 1 of Protocol No. 1, that an illicit expropriation had been made solely to avoid the execution of the judgment in the applicants favour, are intrinsically linked and should be examined together.

1. The parties ’ observations

(a) T he applicants

29 . The applicants complained that – after delaying the execution of the judgment allowing them to build a dividing wall for a number of years – the Government, using their dominant position and contrary to the equality of arms principle and that of nemo judex in causa propria , had expropriated the land on which the wall was to be built, rendering unenforceable the judgment in their favour. Moreover, the Government had had every opportunity to contest their claims during the proceedings which led to the 2004 judgment but they had failed to take any action whatsoever, an omission which was later censured even by the constitutional jurisdictions.

30 . The applicants also complained about the manner in which the expropriation had been carried out – coincidently when the Minister for Gozo was acting Prime Minister and just two days before the court-appointed architect had been due to supervise the execution of the judgment in their favour. They also considered that the expropriation had not been made in the public interest but rather in the sole interest of a few persons (closely connected with the Minister) who lived in the same road and who had wanted to retain an unobstructed view, with the ensuing added financial value to their property.

31 . Following the developments of August 2014, the applicants ’ legal representative, specifying that he was writing on behalf of the third and fourth applicants (spouses Vella) , submitted that the decision to release the land was just and that it was the minimum the Government could do to redress partially the prejudice they had suffered. They, however, wished to maintain their complaints despite the revocation, given the years of litigation at a financial cost to them, costs which they wished to have compensated.

( b ) The Government

32 . The Government considered that the expropriation had not been done in contempt of the Gozo court decision. That judgment remained valid – although unenforceable – given that its execution had been superseded by events which developed subsequently as a result of the compelling need to protect the public interest. Moreover, the decision of the Gozo court had not established that the applicants ’ property could never be expropriated, and that decision could not be understood as an obstacle to any legitimate Government action in the future.

33 . The Government stated that the applicants ’ only reason for wanting to build the wall in question was to ruin the belvedere by creating an eyesore and not to gain any advantage for themselves, which was a typical situation of abuse of right. Their aim in building the wall had been to put pressure upon the authorities into granting them building permits, as by building the wall they would have in any case managed to ruin the view from the belvedere .

34 . The Government submitted that the Parliamentary Secretariat for Gozo (predecessor to the Ministry for Gozo) had long desired to create a belvedere in Nadur to exploit the scenic panorama, it being situated on Gozo ’ s most easterly hillside, overlooking picturesque valleys, and in some places enjoying views of the distant islands of Comino and Malta. This is why the Government had originally carried out the first expropriation in 1991. The public interest cited back then remained the same in respect of the 2008 expropriation, namely the beautification and enhancement of Nadur and its surroundings and the enjoyment thereof by the community at large.

35 . The Government pointed out that the expropriation had been lawfully executed in accordance with the relevant provision of Chapter 88 of the Laws of Malta. It had had a legitimate aim, namely to protect the belvedere against irreparable damage which would be caused by the building of the boundary wall. It had also been proportionate. Indeed, the applicants had been offered adequate com pensation in return, namely EUR 23,300 for 112 square metres of land, which could also be contested.

36. Following the developments of August 2014, the Government submitted that the revocation of the expropriation was done with a view to settling the case before the Court, since any alleged violation stemmed from the taking of the property. In consequence they considered that the applicants could no longer be considered victims in terms of Article 34 and that the case should be struck out in terms of Article 37 (1) (b) and (c). They noted that the circumstances complained of no longer existed. The Government submitted that the complaints were remedied pending proceedings before this Court and that in the Court ’ s earlier case-law this sufficed for the Court to consider that victim status ceased, without an express recognition of a violation. However, the Government noted that in the present case “given that there was restituto in integrum of the property to the applicants there is no doubt that in substance Government recognized that there was a violation and provided necessary redress by releasing the property”. They considered therefore that the Court should strike the case out of its list, even if the applicants objected, because the demands of the applicants had been satisfied.

2. The Court ’ s assessment

37 . The Court must determine whether the complaint s are admissible under Article 35 of the Convention, as amended by Protocol No. 14 which entered into force on 1 June 2010. The Protocol added a new admissibility requirement to Article 35 which, in so far as relevant, provides as follows:

“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

...

(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”

39 . The main element contained in the new admissibility criterion is the question of whether the applicant has suffered a “significant disadvantage”. It is common ground that these terms are open to interpretation and that they give the Court some degree of flexibility, in addition to that already provided by the existing admissibility criteria. In the Court ’ s view, these terms are not susceptible to exhaustive definition, like many other terms used in the Convention. The High Contracting Parties thus expected the Court to establish objective criteria for the application of the new rule through the gradual development of the case-law (see Korolev v. Russia (dec.), no. 25551/05 , ECHR 2010).

40 . Inspired by the above-mentioned general principle de minimis non curat praetor , the new criterion hinges on the idea that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on al l the circumstances of the case. The severity of a violation should be assessed, taking account of both the applicant ’ s subjective perceptions and what is objectively at stake in a particular case (see Korolev (dec.), cited above ). Thus, the absence of any such disadvantage can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Adrian Mihai Ionescu v. Romania (dec .) no. 36659/04, § 34, 1 June 2010, Rinck v. France (dec.) no. 18774/09, 19 October 2010; and Kiousi v. Greece (dec.) no. 52036/09, 20 September 2011). Moreover, a violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting pecuniary interests (see Korolev (dec.), cited above) .

41 . The Court notes that by means of an expropriation which was in place for over six years, the applicants had been impeded from executing a judgment allowing them to build a boundary wall measuring 1.5m in height, over part of their land (consisting of a field) over which no building permission (except for the wall) was allowed. The Court, has regard to the specific circumstances of the case at issue, firstly, that the applicants have reacquired ownership of their land and that in consequence there is nothing impeding the execution of the judgment in their favour – although in their submissions following the development of August 2014 both parties were silent as to whether the wall will be actually built. Secondly, as to any delay caused by the Government ’ s interference, the applicants have not in any way explained what use, if any, this wall would have had, and that there was an objective purpose for the building of such a wall. Thus, the Court considers that the delay in enforcing the judgment in their favour and in erecting the mentioned wall was of minimal significance to the applicants (see, mutatis mutandis , Korolev (dec.), Rinck (dec.), and Kiousi (dec.), all cited above) . Similarly, the fact that the applicant ’ s relatively small piece of land had been expropriated for a period of time does not appear to have had any particular consequences on the applicants. Indeed the applicants were in any event limited as to what could be done with the land on which no building permission was allowed, and they did not claim that they had been unable to make any specific use of the land during that time. Moreover, that land had now been returned to them, and the applicants had not shown that they had incurred any pecuniary losses in that respect. Indeed, nothing in the case file suggests that this situation could have had any significant consequences for the applicants.

42 . In view of the foregoing, the Court concludes that the applicants have not suffered a significant disadvantage as a result of the alleged violation of the Convention.

43 . As to the second element for the purpose of the application of this criterion, the Court observes that a complaint of non-enforcement of a final domestic decision, already the subject of the Court ’ s well-established case-law, does not concern an important question of principle, which might justify examining it any further (see, inter alia , Bjelajac v. Serbia , no. 6282/06 , § 60, 18 September 2012 and Burov v. Moldova (dec. ), no . 38875/03, § 33, 14 June 2011). The same applies to the complaint concerning the expropriation which in the present case is intrinsically linked to the non-enforcement complaint under Article 6.

44 . Lastly, as regards the third condition of the new inadmissibility criterion, namely that the case must have been “duly considered” by a domestic tribunal, the Court notes that the applicants ’ action was examined on the merits by the constitutional jurisdictions. The applicants were therefore able to submit their arguments in adversarial proceedings before two degrees of jurisdiction.

45 . The three conditions of the new inadmissibility criterion having therefore been satisfied, the Court finds that this complaint must be declared inadmissible under Article 35 §§ 3 (b) and 4 of the Convention.

B. Article 14

46 . The applicants further complained of the fact that they had been treated differently from their neighbours. They allege d that, unlike them, owners of other properties in the surrounding area had been granted building permits. Moreover, they considered that the expropriation in their case had been carried out owing to political pressure from individuals with political leanings that were different from their own and who were well connected with the Minister for Gozo. The applicants contended that such treatment had been discriminatory, being based on the fact that they held political opinions different from the rest of the neighbourhood. They relied on Article 14 of the Convention.

47 . The Court notes that the facts at issue f all within the ambit of Article 1 of Protocol No. 1 and Article 14 is therefore applicable in the instant case.

48 . The Court reiterates that in order for an issue to arise under Article 14, there must be a difference in the treatment of persons in analogous or relevantly similar situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00 , § 175, ECHR 2007, and Burden v. the United Kingdom [GC], no. 13378/05 , § 60, ECHR 2008). Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Carson and Others v. the United Kingdom [GC], no. 42184/05 , § 61, ECHR 2010). The Court also points out that the grounds on which those differences of treatment are based are relevant in the context of Article 14 (see O ’ Donoghue and Others v. the United Kingdom , no. 34848/07 , § 101, ECHR 2010 (extracts).

49 . The Court notes that the applicants have not submitted detailed information in relation to any other individuals in a situation analogous to theirs. Nor have they presented any evidence capable of raising any doubts in respect of any different or preferential treatment enjoyed by others. In these circumstances the Court considers that the complaint of discriminatory treatment is unsubstantiated. Moreover, the matter of the alleged discriminatory treatment was fully examined by the constitutional jurisdictions, and there is nothing to suggest that that examination and the subsequent findings thereon were manifestly unfounded in law or fact.

50 . It follows that the complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 26 February 2015 .

             Claudia Westerdiek Mark Villiger Registrar President