FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4251/02 by Benny SALIBA against Malta

The European Court of Human Rights (First Section), sitting on 27 November 2003 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mrs F. Tulkens , Mrs N. Vajić , Mrs E. Steiner , Mr K. Hajiyev , judges , and Mr S. Nielsen , Deputy Section Registrar ,

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

Having deliberated, decides as follows:

THE FACTS

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

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

1. The background of the case and the demolition order

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

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

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

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

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

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

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

2. The applicant’s constitutional application

Invoking Articles 3 and 7 of the Convention and 1 of Protocol No. 1, the applicant introduced a constitutional application before the First Hall of the Civil Court. He observed that his property had to be demolished even though he had been found not guilty of the accusations brought against him, and underlined that this became possible only after 6 June 1988, when Article 17(9) of Chapter 10 of the Laws of Malta was amended. Before that date, no order for demolition could have been imposed on an acquitted person. As the criminal offence had allegedly been committed before that date, the punishment imposed could not be considered foreseeable.

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

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

As far as Article 7 of the Convention was concerned, the Civil Court observed that in a judgment of 6 December 1994, given in the case of 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 mean of a fine or a term of imprisonment, in a worse position than when he committed the criminal act. As the demolition order was intended only to prevent the author of the offence from gaining an unlawful advantage, it was not dependent on a finding of guilt and could not be considered a penalty within the meaning of Article 7 of the Convention.

The Civil Court, moreover, rejected the applicant’s allegations under Article 3 of the Convention as being frivolous. It held that a demolition order could not be considered inhuman or degrading simply because the owner of an unlawfully constructed building may feel embarrassed about what other people might think about him.

The applicant appealed to the Constitutional Court.

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

COMPLAINTS

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

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

3. Invoking Article 3 of the Convention, the applicant alleges that the demolition order amounted to degrading treatment.

THE LAW

1. The applicant considers that the order to demolish his storage building amounted to a violation of his right to the peaceful enjoyment of his possessions. He invokes 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.”

The applicant observes that he had acquired the land together with the building in question and had made use of it ever since for farming purposes. Taking into account the fact that he was acquitted of the criminal charges against him, he considers that the measure complained of breached the fair balance which should exist between the general interest of the community as a whole and his individual rights.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

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

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

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

The applicant underlines that, before the entry into force of the amendments to Article 17(9) of Chapter 10 of the Laws of Malta (6 June 1988), it was not possible to impose an order for demolition on a person who had been acquitted of the charges brought against him or her.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

3. According to the applicant, the order to demolish the structure amounted to degrading treatment. He invokes Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court recalls that in order for punishment to be "degrading" and in breach of Article 3, the humiliation or debasement involved must attain a particular level of severity and must in any event be other than that usual element of humiliation inherent in any punishment. Indeed, Article 3, by expressly prohibiting "inhuman" and "degrading" punishment, implies that there is a distinction between such punishment and punishment more generally. The assessment of this minimum level of severity depends on all the circumstances of the case. Factors such as the nature and context of the punishment, the manner and method of its execution, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim must all be taken into account (see Costello-Roberts v. United Kingdom , judgment of 25 March 1993, Series A no. 247-C, p. 59, § 30).

The Court observes that the applicant alleges that, in the event of execution of the demolition order, ordinary persons and society in general may think that he has been found guilty of the charge brought against him. However, even assuming that this were the case, the Court considers that this situation would not cause the applicant suffering or humiliation of such intensity as to constitute “degrading” treatment within the meaning of Article 3.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning Articles 7 of the Convention and 1 of Protocol No. 1;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis              Deputy Registrar President