FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50867/09 by Angelo XUEREB (No. 2) against Malta

The European Court of Human Rights (Fourth Section), sitting on 20 September 2011 as a Chamber composed of:

Nicolas Bratza , President, Päivi Hirvelä , George Nicolaou , Ledi Bianku , Zdravka Kalaydjieva , Nebojša Vučinić , judges,

Geoffrey Valenzia , ad hoc judge and Lawrence Early , Section Registrar ,

Having regard to the above application lodged on 22 September 2009,

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 appli cant, Mr Angelo Xuereb, is a Maltese national who was born in 1952 and lives in Lija. He was r epresented before the Court by D r P.J. Galea, a lawyer practising in Valletta . The Maltese Government (“the Government”) were represented by their Agent, Dr Peter Grech , Attorney General .

A. The circumstances of the case

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

1. Background of the case

The applicant is the owner of a property in Sliema.

On 20 December 1985 the applicant applied for a permit for the purposes of developing his property. On 24 July 1986 the Planning Area Permits Board (“PAPB”) issued a permit “to erect shops, dwellings and garages for private cars, subject to [the] conditions on form TH and as per [the] plans submitted and amended”. Thus, the applicant was authorised to build “four floors from [the] highest street level”. The permit was valid for one calendar year.

On 29 March 1987 the applicant applied for another building permit in relation to the same property.

On 15 September 1988, the Building Inspector and the Sanitary Engineering Officer requested the applicant to put a stop to the construction, since it was being carried out without the necessary permit.

On 16 November 1988 the PAPB issued a permit under certain conditions, namely “to carry out extension of garages, shops and apartments, as per [the] plans submitted with [the] original application and [the] fresh plans submitted, subject to [the] conditions on form TH, in accordance with departmental alignment, corner site with splay. [The] height of the building should not exceed five floors (19.25m) from [the] highest street level”. This permit, valid for two years, was issued on the basis of the plans and elevations submitted. However, along with the plans, the applicant submitted a “section drawing” which was not in conformity with the elevations. In consequence, the maximum height of five floors approved in the permit (in conformity with the elevations submitted with the permit) was illustrated differently in the section drawing, namely in a way which included an additional floor.

The applicant claims that he had started work on the proposed project.

Two weeks later, by a letter dated 30 November 1988, having noted the discrepancy, the authorities decided to withdraw the said permit. The latter was replaced by another permit which ordered that the maximum height of the structure could not exceed five floors from the level of the adjacent roads. Since the adjacent roads had different levels, according to the applicant, this alteration of the permit had the effect of reducing the proposed construction by one storey (allowing four instead of five storeys), as well as making the building of another block impossible.

According to the Government, the applicant constructed two floors in excess of what was permitted.

On 11 October 1989 the applicant instituted ordinary civil proceedings, arguing that the replacement of the permit of 16 November 1988 was abusive, unlawful and ultra vires . These proceedings are still pending.

On 7 November 1989 criminal proceedings were instituted against the applicant for illegal construction carried out before 16 November 1988, following the issuance of the permit of 24 July 1986. These proceedings were suspended sine die for a number of years pending the outcome of civil proceedings (mentioned above) but were eventually resumed. The proceedings are still pending.

2. Constitutional redress proceedings

In February 2006 the applicant instituted constitutional redress proceedings. He alleged a violation of Article 1 of Protocol No.1 to the Convention and Article 14, in that, unlike in his case, permits for extensive construction and the addition of a fifth floor had been issued in respect of the buildings adjacent to his own property.

On 21 December 2007 the Civil Court in its constitutional jurisdiction rejected the applicant ’ s claim in respect of an alleged interference with his right of property on the grounds of the non-exhaustion of ordinary remedies. It held that the civil proceedings instituted by the applicant could result in the revocation of the decision to withdraw the original permit and therefore sufficed as a remedy. Moreover, the aim of constitutional proceedings was not to suspend criminal proceedings which were not related to human rights issues.

On 27 March 2009 the Constitutional Court upheld this judgment. It further held that although the Article 14 issue was not open to examination in ordinary proceedings, a favourable outcome in such proceedings would remedy any such violation.

B. Relevant domestic law

1. Regulations on building permits

Until 1 January 1993 building development permits were regulated by Part I of the Code of Police Laws. Section 16(1) of that Code provided:

“The Minister responsible for public works may, prior to the preparation, publication or approval of a scheme, order by notice in the Government Gazette the whole or any part of Malta to be a planning area; and from the date of any such order no person shall lay out, construct or close any street, or erect any building or increase the height of or otherwise modify any existing building, or change the use of any land or building in any part of such area (whether or not an approved scheme exists in respect thereof) without a permit from the Minister responsible for public works who may, in his discretion, refuse the grant of a permit or, in granting it, impose such conditions as in his discretion he may deem proper.”

The Minister responsible for public works could delegate all or any of his powers to a body known as the Planning Area Permits Board (“the PAPB”).

2. The remedies available against decisions on building permits

Section 37 §§ (1) and (3) of the Development Planning Act provide:

“(1) If an applicant considers that conditions imposed upon a development permission, or a refusal of such a permission, is unreasonable he may, without prejudice to his right of appeal, either request the Authority or the Commission, as the case may be, to reconsider its decision or he may lodge an appeal with the Appeals Board ... A request for reconsideration shall not be made currently with an appeal. A request for reconsideration and an appeal under this sub-section, as the case may be, shall be made within thirty days of receipt of the decision of the Authority or of the Commission, as the case may be. Where a request for reconsideration has been made, an appeal may be made to the Appeals Board within thirty days of receipt of the decision taken in the reconsideration.

...

(3) During the reconsideration stage, the Authority or the Commission, as the case may be, may request the applicant to file fresh plans, in which case the Authority or the Commission, as the case may be, shall give reasons for such a request provided that the substance of the development shall not change and any person who has made written objections to the development in terms of Article 32(5) shall be informed that such fresh plans have been so filed and shall also be invited to be present at the Authority ’ s or the Commission ’ s sitting, as the case may be, when such application shall be discussed. Both the applicant and the objectors, if any, shall be informed of the date and time of the meeting and, if present, may address the Authority or the Commission, as the case may be, with regard to the planning matters concerning the said application.”

3. Liability for tort and quasi-tort

The relevant sections of the Maltese Civil Code read as follows:

Section 1030

“Any person who makes use, within the proper limits, of a right exercisable by him, shall not be liable for any damage which may result therefrom.

Section 1031

Any person, however, shall be liable for damage which occurs through his fault.

Section 1032

(1) A person shall be deemed to be in fault if, in his own acts, he does not use the prudence, diligence, and attention of a bonus paterfamilias.

(2) No person shall, in the absence of an express provision of the law, be liable for any damage caused by want of prudence, diligence, or attention in a higher degree.

Section 1033

Any person who, with or without intent to injure, voluntarily or through negligence, imprudence, or want of attention, is guilty of any act or omission constituting a breach of the duty imposed by law, shall be liable for any damage resulting therefrom.”

COMPLAINTS

The applicant complained that the withdrawal of the initial permit violated his rights under Article 14 in conjunction with Article 1 of Protocol No. 1 to the Convention and that the rejection by the constitutional courts of his claims deprived him of effective access to a court under Article 6 and of an effective remedy under Article 13.

THE LAW

I. THE COMPLAINT UNDER ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO.1 TO THE CONVENTION

The applicant alleged that the interference with his property rights had been discriminatory. He submitted that building permits had been granted in respect of similar or adjacent buildings and the owners thereof had not suffered the same treatment by the authorities. In effect, by having his permit withdrawn he had lost the right to build an entire storey. The applicant acknowledged that he had not put forward proof of this discrimination, namely that constructors of other buildings in the vicinity had been granted permission to build five stories. However, this was because he had not been allowed to do so by the constitutional jurisdictions, which had decided the case on the basis of preliminary pleas. The applicant submitted that there was abundant evidence in this respect and that the discrimination suffered had impinged on his property right.

As for exhaustion of remedies in respect of this complaint, the applicant did not dispute that the Government could be held liable for their actions and that the ordinary proceedings he had instituted could still result in the permit of 30 November 1988 being declared null and void. Nevertheless, he contended that the fact that he had been discriminated against in relation to his right of property was a violation in itself which could not be remedied at a later stage even if damages were awarded. In his view it was for the Government to establish that the existing remedies, namely the ordinary civil proceedings, could serve as an effective remedy or render null the discriminatory treatment. Moreover, the pending criminal action, in relation to which a civil remedy could have had little effect, if any, could not be ignored. It followed, according to the applicant, that the constitutional proceedings could not be contingent or dependent on the exercise of the ordinary action. In the present case the Constitutional Court should have dealt with the discrimination complaint on the merits, instead of dismissing the case on the preliminary pleas.

The Government submitted that the applicant had not exhausted available remedies. The applicant had had two effective remedies available, namely an action in tort and an application for judicial review followed by an action for the assessment and award of damages. The Government submitted that the ordinary remedy provided was effective, the more so since an aggregate of remedies existed, as held by the Court in Sammut and Visa Investments v. Malta ((dec.), no. 27023/03, 28 June 2005). Moreover, it was clearly established that public authorities were subject to the ordinary law of the land when it came to responsibility for damages in tort, according to the Civil Code, and had on numerous occasions been found liable. One such example was the case of John Lowell and M aurice Portelli noe.et v. Onor. Dottor Carmelo Caruana noe. et , a case similar to that of the applicant ’ s, where the domestic court had found that the cancellation of the permit in the circumstances of that case had been ultra vires , the PAPB having acted in excess of its executive powers. The measure was therefore illegal and the Government had, thus, been ordered to pay damages.

In the instant case the applicant had instituted ordinary proceedings (an application for judicial review and an action for damages in tort) in 1989 in relation to, inter alia , his discrimination complaint. In assessing this claim the ordinary court would have been obliged to take into consideration the height of the buildings in the area and would therefore take cognisance of a claim regarding discrimination. These proceedings were currently still pending due to the applicant ’ s lack of diligence in pursuing them. This was the reason why his constitutional application had been rejected for non-exhaustion of ordinary remedies. Determining otherwise would have amounted to a duplication of the same claim, and such an action, in their view, verged on abuse of process. It was clear, in fact, that the constitutional proceedings had been instituted simply to adjourn the criminal proceedings against the applicant.

As to the merits of the complaint under Article 14, the Government submitted that no evidence had been adduced by the applicant to show that any other person had been allowed to build beyond the height limitations imposed by law, either before the domestic courts or this Court. In consequence, there had been no violation of the relevant provision.

The Court does not deem it necessary to determine whether the applicant has exhausted domestic remedies, since the complaint submitted to the Court is in any case inadmissible for the following reasons.

The Court reiterates that Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see Mintoff v Malta , (dec.), no. 4566/07, 26 June 2007).

On 16 November 1988 the PAPB issued a building permit to the applicant. The permit constituted a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention (see Mullai and Others v. Albania , no. 9074/07 , § 99 , 23 March 2010 ) . It follows that the facts at issue fall within the ambit of Article 1 of Protocol No. 1 and Article 14 is therefore applicable in the instant case.

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 ( D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007; Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008-). Such a difference of 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. Only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see O ’ Donoghue and Others v. the United Kingdom , no. 34848/07 , § 101 , ECHR 2010 ‑ ... (extracts) .

Although the applicant had the possibility to do so, both when he lodged his application with the Court and following communication of the complaint to the respondent Government, he has not submitted any concrete information in relation to any other persons in an analogous situation to his. Nor has he presented any evidence in respect of any different or preferential treatment enjoyed by others or pointed to any grounds on which any alleged differences of treatment were based. In these circumstances the Court considers that the complaint of discriminatory treatment is unsubstantiated.

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 and 4 of the Convention.

II. THE COMPLAINT UNDER ARTICLES 6 AND 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

The applicant alleged that he had not had an effective remedy/ or affective access to a tribunal in relation to the discriminatory treatment he had suffered.

The Government noted that the applicant had failed to institute a new set of constitutional proceedings on the basis of Article 13, complaining that the Constitutional Court proceedings cu lminating in the decision of 27 March 2009 had not been effective. Arguing that such a remedy would be effective, the Government made reference to domestic case-law, namely, Lawrence Cuschieri v the Honourable Prime Minister (6 April 1995), Perit Joseph Mallia v the Honourable Prime Minister (15 March 1996), and The Honourable Judge D r. Anton Depasquale v the Attorney General (19 September 2001), where the constitutional jurisdictions had taken cognisance of complaints against the Constitutional Court in relation to the fairness of proceedings under Article 6 of the Convention. In the first of these cases, the Constitutional Court held that it could not a priori exclude a review of questionable behaviour or actions by the constitutional jurisdictions. In the Perit Joseph Mallia case, both the first-instance court exercising its constitutional jurisdiction and the Constitutional Court on appeal had upheld the applicant ’ s claims and had found a violation of Article 6. Such proceedings would have been dealt with by a differently composed court than the original Constitutional Court .

The Court notes, once again, that it is not necessary to examine whether the applicant has exhausted domestic remedies, since in the light of the conclusions above, namely the absence of an arguable claim under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No.1, Article 13 does not come into play (see Boyle and Rice v. the United Kingdom , 27 April 1988, Series A no. 131, § 52).

Consequently, the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

In so far as the complaint can be examined under Article 6, the Court reiterates that the right of access to a court is an inherent aspect of the safeguards enshrined in Article 6. Thus, Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court (see Markovic and Others v. Italy [GC], no. 1398/03, § 92 , ECHR 2006 ‑ XIV ). At the same time, the “right to a court” is not absolute; it is subject to limitations permitted by implication, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations must not restrict or reduce a person ’ s access in such a way or to such an extent that the very essence of the right is impaired (see Edificaciones March Gallego S.A. v. Spain , 19 February 1998, § 34, Reports of Judgments and Decisions 1998-I).

For the purposes of Article 6 the Court considers that the discrimination claim cannot be dissociated from the applicant ’ s complaint under Article 1 of Protocol No. 1. Thus, even supposing that Article 6 is applicable to the present case, the Court notes that there were no apparent restrictions on the applicant ’ s right of access to a court. The applicant instituted proceedings before the ordinary domestic courts and these proceedings are currently still pending. As conceded by the applicant, the ordinary court, examining the merits of his claim in relation to the revocation of the initial permit and any discriminatory implications, could have revoked the contested permit. Furthermore, an action in tort could have compensated the damage suffered (see Sammut and Visa Investments , (dec.), cited above). In consequence, it cannot be said that the applicant was denied access to a court or that this right was restricted in a way which impaired the essence of that right.

It follows that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Nicolas Bratza Registrar President