FOURTH SECTION

DECISION

Application no . 433/12 Carmelo Sive Charles BUSUTTIL and Maria Ella Sive Mariella BUSUTTIL against Malta

The European Court of Human Rights (Fourth Section), sitting on 17 September 2013 as a Committee composed of:

David Thór Björgvinsson , President, Vincent A. De Gaetano , Krzysztof Wojtyczek , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 30 December 2011,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Carmelo sive Charles Busuttil and Ms Maria Ella sive Mariella Busuttil, are Maltese nationals, who were born in 1940 and 1945 respectively and live in Malta. They were represented before the Court by Dr R. Cassar, a lawyer practising in Valletta.

A. The circumstances of the case

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

1. Background of the case

By a notarial deed of 22 November 1976 the applicants purchased an apartment or flat, no. 4, and a certain air space above the said flat (the limits of the airspace are contested) from X. and Y., who in turn had acquired the property as a result of a contract of division of property between the “Z. family”.

The applicants built two flats (flat nos. 5 and 6), and at a later stage another two flats (flat nos. 7 and 8) using the air space they believed they owned.

2. Ordinary proceedings

In 1990 X., Y. and the Z. family (or relevant heirs) instituted proceedings before the Commercial Court claiming that they were the owners of the air space from the sixth floor (included) upwards (which they alleged had not been divided in the contract of division) and that therefore the applicants had built in that air space without their consent. They, thus, requested the court to order the demolition of the extra floors.

By a judgment of 3 September 1990 the Commercial Court found against the plaintiffs, holding that it was clear from the contracts that X. and Y. had acquired flat no. 4 and the unlimited air space above, which in turn they sold to the applicants who were therefore indeed the owners of flat no. 6 (there was no contestation as to the applicants being the owners of the air space on which flat no. 5 was built).

The plaintiffs appealed, and by a judgment of 4 August 1992, the Court of Appeal in its commercial jurisdiction reversed the first-instance judgment. It considered that the Commercial Court had erroneously interpreted the contracts in question and that in their view it appeared that (in the division contract) X. and Y. had only obtained the air space up to the sixth floor, the residual airspace remaining the property of all the Z. family. It followed that the applicants had acquired ownership only of the air space equivalent to the fifth and sixth floor and the air space above in part, namely, that part which had belonged to X. and Y. Thus, the air space above the sixth floor belonged to the applicants together with the rest of the Z. family (excluding X. and Y.). The court ordered the demolition of the extra floors to be undertaken within three months.

3. Other proceedings

The applicants made a request for retrial, which was rejected on 24 January 1997.

The applicants having failed to demolish the property, on 16 May 2007 the rest of the Z. family instituted proceedings against the applicants to induce a sale by licitation of apartments nos. 7 and 8.

4. Constitutional redress proceedings

On 29 May 2007 the applicants instituted constitutional redress proceedings complaining that the erroneous interpretation of the relevant contractual clauses infringed their property rights under the Convention, in so far as they had acquired an unlimited airspace which because of the above mentioned judgments they now had to share with third parties they had never been in contact with. Thus, they claimed to have suffered an unlawful deprivation of a part of that air space.

By a judgment of 29 May 2008 the Civil Court in its constitutional jurisdiction agreed with the appeal ’ s court decision and considered that the decision had been arrived at on the basis of the evidence presented, in the light of the law and in compliance with fair trial rights. Moreover, it was not up to the constitutional jurisdiction to assess the merits of the case, it not being a third-instance court.

On 9 June 2008 the applicants appealed. By a judgment of 5 July 2011 the Constitutional Court rejected the appeal as being frivolous and vexatious.

COMPLAINT

The applicants complained that the domestic courts ’ interpretation breached their rights under Article 1 of Protocol No. 1.

THE LAW

The applicants relied on Article 1 of Protocol No.1 to the Convention, 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.”

Firstly, the Court notes that although the applicants invoked their property rights before this Court, their complaint clearly refers to the assessment of evidence made by the domestic courts, which falls to be considered under Article 6 of the Convention. In that respect the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). In particular, the Court cannot itself assess the facts which have led a national court to adopt one decision rather than another; otherwise, it would be acting as a court of fourth instance and would disregard t he limits imposed on its action. The Court ’ s sole task in connection with Article 6 of the Convention is to examine applications alleging that the domestic courts have failed to observe specific procedural safeguards laid down in that Article or that the conduct of the proceedings as a whole did not guarantee the applicant s a fair hearing (see, among other authorities, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 384433/09, § 197, ECHR 2012 and Mugliett v. Malta (dec.) no. 46661/12, 28 May 2013 ).

In the instant case, the Court finds nothing to suggest that the proceedings at issue were not conducted in accordance with the requirements of a fair hearing.

It follows that from this perspective the complaint must be rejected as manifestly ill ‑ founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention .

In so far as the applicants invoked Article 1 of Protocol No. 1, the Court reiterates that an applicant may allege a violation of that provision only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision (see Lelas v. Croatia , no. 55555/08 , § 56 , 20 May 2010). The Court notes that the domestic courts found against the applicants, holding that they did not own the entirety of the relevant air space. In consequence the applicants cannot complain about an interference in relation to the airspace they were found not to own. That part of the complaint is therefore incompatible ratione materiae with the provisions of the Convention and the Protocols thereto wit hin the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

Nevertheless, the Court notes that according to the domestic courts ’ findings, part of the airspace was owned by the applicants (namely, that part which had belonged to X. and Y.), an air space they co-owned with the Z. family. In consequence the Court considers that any eventual demolition of the property built in that air space would constitute an interference with the applicants ’ possessions and would in consequence attract an appropriate assessment. The Court reiterates that in order for an interference to be compatible with that provision it must be lawful, be in the general interest and must be proportionate, that is it must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights (see, among many other authorities, Beyeler v. Italy [GC], no. 33202/96, § 107, ECHR 2000 ‑ I).

This having been said, the Court notes that the Court of Appeal ordered the demolition of the extra floors (to be undertaken within three months) in 1992 and to date it does not appear that such demolition has taken place, or that it is imminent. Indeed the last action taken by the Z. family was in 2007 where they instituted proceedings against the applicants to induce a sale by licitation of apartments nos. 7 and 8 which were built on the co-owned airspace. In the current circumstances the Court considers that the coming into effect of the Court of Appeal ’ s decision is not envisaged; thus, there has been no interference with the applicants ’ right to peaceful enjoyment of their possessions . Accordingly, this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı David Thór Björgvinsson Deputy Registrar President