Information Note on the Court’s case-law 69

November 2004

Saliba v. Malta (dec.) - 4251/02

Decision 23.11.2004 [Section I]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Order to demolish a storage facility on the basis of a law which was allegedly not applicable at the time of the commission of the corresponding offence: admissible

Article 7

Article 7-1

Criminal offence

Order to demolish a storage facility although the applicant had been acquitted of charges: inadmissible

The applicant, who acquired ownership of a plot of land on which a storage facility had been built, was charged by the police with having built the facility without permission. The applicant was acquitted of the offence by the Criminal Court in July 1988. However, a second set of proceedings was instituted by the police, which resulted in the applicant’s conviction in June 1989 and an order to de molish the facility. The applicant’s appeal against conviction on grounds of having been judged twice for the same facts was allowed by the Court of Criminal Appeal, which revoked the June 1989 judgment. The court nevertheless ordered that the building be demolished. It based its decision on an amendment which had in the meantime been made to the applicable law which provided that demolition could be imposed “even where the person charged had been acquitted of the charge if the court was satisfied that the building had been erected in contravention of the law”. The applicant’s constitutional appeal was rejected. The applicant complains under Article 7 that a “penalty”, which was not provided by the law in force at the time of the alleged offence, was imposed on him, as well as of an infringement of his right to peaceful enjoyment of his possessions.

Inadmissible under Article 7: The order to demolish the facility had not involved a finding of guilt pursuant to a criminal charge, and therefore did not constitute a “penalty” within the meaning of Article 7. The measure had aimed at the re-establishment of the rule o f law by the demolition of any unlawfully constructed buildings, and could thus be considered a remedy rather than a “penalty”: incompatible ratione materiae .

Admissible under Article 1 of Protocol No. 1.

© Council of Europe/European Court of Human Right s This summary by the Registry does not bind the Court.

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