Communicated on 8 February 2017

FOURTH SECTION

Application no. 7448/15 Emanuel CIANTAR and MAXKIM LTD against Malta lodged on 5 February 2015

STATEMENT OF FACTS

The first applicant, Mr Emanuel Ciantar , a Maltese national, was born in 1964, and lives in Qormi , Malta. The second applicant, Maxkim Limited (C19754), is a limited liability company incorporated in 1996 and registered in Marsa , Malta. The second applicant is owned by the first applicant. They are represented before the Court by Dr J. Brincat , a lawyer practising in Marsa , Malta.

A. The circumstances of the case

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

1. First set of criminal proceedings

On 27 July 2011, the Court of Magistrates as a court of criminal judicature found M. (the first applicant ’ s son, who lives under the same roof with the applicant) guilty of involuntary grievous bodily harm of two minors, and of driving a van of the make P eugeot with registration number HBD096 (hereinafter referred to as “the Peugeot”) without a licence. The Peugeot was registered to Maxkim Limited (the second applicant). M. was not an employee of the company. The Court of Magistrates condemned M. to a term of imprisonment and disqualified him from obtaining a driving licence for a period of time. Furthermore, it ordered the confiscation of the Peugeot, as per Article 3 (2) (c) ( i ) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (hereinafter “the Ordinance”) (see relevant domestic law), since this was more than the third time in which M. was being found guilty of a crime under Article 3 of the Ordinance.

M. appealed the decision.

On 24 October 2011, the Criminal Court of Appeal reversed the first ‑ instance court judgment in part, namely lowering the disqualification period to six months, noting that M. had repeatedly been convicted of driving without a licence and insurance, but never before of dangerous driving. The rest of the judgment was confirmed. As to the confiscation of the Peugeot the Criminal Court of Appeal noted that the confiscation was a result of the above mentioned provision of law which provided that both the person as well as the vehicle must be insured.

The Peugeot was eventually confiscated.

2. The second set of criminal proceedings

On 6 January 2012 the Court of Magistrates as a court of criminal judicature found M. guilty under Article 61(1) of the Traffic Regulations Ordinance of driving away, with the intention to use, a vehicle of the make Toyota Vitz with registration number KIM324 (hereinafter referred to as “the Toyota”). The Toyota was registered to the first applicant. The Court of Magistrates did not order the confiscation of the Toyota (which at the time had already been seized by the police) on the ground that M. had used it without the consent of the owner, and thus ordered its release.

It transpires that despite the above finding the car was not released.

The Attorney General (hereinafter referred to as “the AG”) appealed the decision of the Court of Magistrates in part, namely requesting the Criminal Court of Appeal to order the confiscation of the Toyota and in relation to the punishment.

It appears that during these proceedings the first applicant requested that the court release the Toyota. He argued that there was no reason for the Toyota not to be returned to him, since the first-instance court had not ordered its confiscation and, according to law, the AG ’ s appeal did not suspend the execution of the judgment of the first-instance court (Article 416(4) of the Criminal Code).

On an unspecified date the Criminal Court of Appeal rejected the first applicant ’ s request to release the car and on 26 March 2014 the Criminal Court of Appeal rejected the AG ’ s appeal in toto .

3. Constitutional Redress Proceedings

(a) First-instance

On 28 November 2012, the applicants (Mr Ciantar in his name and on behalf of Maxkim Limited), filed proceedings before the Civil Court (First Hall) in its constitutional jurisdiction. They claimed, inter alia , that the above mentioned criminal proceedings against M. violated their rights under Articles 6 and 7 of the Convention and Article 1 of Protocol No. 1 to the Convention.

It was argued, in connection with Article 1 of Protocol No. 1 to the Convention, that the confiscation of the Peugeot in the first set of criminal proceedings, and the decision of the Criminal Court of Appeal in the second set of criminal proceedings rejecting the applicants ’ request to be granted possession of the Toyota had been ‘ unlawful ’ .

Under Article 6 the applicants argued that they had never been accused of a crime and had not had the opportunity to defend themselves before a court; however, they had nonetheless suffered the imposition of a penal punishment upon them. Furthermore, the Court of Appeal had refused to grant back to the first applicant possession of the Toyota in violation of the law.

Further, the applicants claimed that Article 7 of the Convention was violated because an extensive interpretation of the penal law had been applied in the first set of criminal proceedings. They argued that in line with EU law which had come into force after Article 3 of the Ordinance, insurance certificates where issued to the vehicle and not to the person. They argued that since the vehicle was insured the court should not have found that there was no insurance on the basis that the person driving it was himself not insured. The applicants further submitted, that Article 3(2 )( c)( i ) (hereinafter referred to as “Article 3”) of the Ordinance was in breach of the above mentioned Convention provisions and therefore it ought to be declared null and void.

The applicants requested that the two vehicles (the Peugeot and the Toyota) be released, and, that they be awarded just satisfaction for the violations suffered and the lost use of the two vehicles.

On 23 October 2013 the Civil Court (First Hall) rejected the applicants ’ claims except for that concerning the release of the Toyota. It ordered the Toyota to be released immediately (since the Court of Magistrates had not ordered its confiscation), at least until the decision of the Court of Appeal on the AG ’ s appeal, which was still pending at the time.

The court held that its function, as a court acting in a constitutional jurisdiction, was not to revise the reasoning applied by other courts in reaching their decisions, but simply to review whether those decisions amounted to a breach of the Constitution and the Convention.

In regard to the alleged violation of Article 1 of Protocol No. 1, the court held that the confiscation of the Peugeot had been ordered by a final judgment of the Court of Appeal in the first set of criminal proceedings and therefore there could be no doubt that the confiscation was in compliance with the law (Article 3 of the Ordinance). It noted that Article 3 was aimed at protecting innocent citizens from abuse by people who broke the law by driving vehicles without a licence or without insurance. The fact that the provision ordered the confiscation of a vehicle used by a person caught driving without a licence or without insurance, even if the vehicle belonged to a company the perpetrator worked for, or the vehicle belonged to a family member with whom that perpetrator lived, struck the necessary balance and formed an appropriate deterrent to the commission of crime. It followed that it was not in violation of the invoked provisions.

Regarding the claim for damage, the court concluded that the applicants must demand them from M., since M. was the one that had violated the law leading to the institution of the criminal proceedings and their consequences.

(b) Appeal

On 7 November 2013 the applicants filed an appeal before the Constitutional Court. It was argued that in both sets of criminal proceedings the applicants had been unlawfully deprived of their property. According to the applicants, Article 3 was inapplicable to the confiscation of the Peugeot, which could only be possible if, differently from M., the accused had been an employee of Maxkim Limited. The applicants further contended that the withholding of the Toyota by the Criminal Court of Appeal in the second set of criminal proceedings lacked a legal basis, which had not been remedied by the temporary order of the first-instance constitutional jurisdiction. Further, the latter court had failed to effectively consider their complaints under Articles 6 and 7 of the Convention.

The AG also filed an appeal.

On 11 August 2014 the Constitutional Court rejected the AG ’ s appeal. On the same day the Constitutional Court declared that the applicants had suffered a violation of their rights as protec ted under Article 1 of Protocol No. 1. In connection with both vehicle s, the court found that Article 3 of the Ordinance violated the same right in so far it permitted the confiscation of a vehicle, without the owner of the vehicle being given the opportunity to effectively contest the confiscation. Article 3 of the Ordinance was therefore declared null and void in regard to such consequences. The Constitutional Court ordered the release of both vehicles, and the payment of non ‑ pec uniary damage in the sum of 300 euros (EUR) to each of the applicants. The rest of the applicants ’ claims under Article 6 and 7 of the Convention were rejected. The cost of the appeal proceedings before the Constitutional Court filed by the applicants were to be born e in the proportion of one fifth by the applicants and four fifths by the AG, and the costs of the appeal proceedings before the Constitutional Court filed by the AG were to be borne by the AG. The applicants ’ share of costs amounted to EUR 1,129.46.

The Constitutional Court noted that, simply because the courts in the first set of criminal proceedings had applied the law (Article 3 – which provided the mandatory confiscation of the vehicle if a person – who was either the owner, the employee or a member of the family of the owner who lived under the same roof – committed the relevant offence more than three times), did not necessarily mean that there had not been a violation of the applicants ’ rights under Article 1 of Protocol No. 1. The court concluded that the confiscation of the Peugeot had been lawful. However, it had placed a disproportionate and excessive burden upon the applicant [company] thereby leading to a violation of its rights (especially since the applicants had no possibility of defending themselves in order to prevent the confiscation of the vehicle which was mandatory). Furthermore, there existed no adequate or effective remedy to prevent the confiscation of the Peugeot, and third parties were not protected by any procedural safeguards.

As for the Toyota, the same last-mentioned considerations applied. Furthermore, as a result of the decision of the Court of Appeal in the second set of criminal proceedings, the Constitutional Court concluded that the seizure of that vehicle had been unnecessary and could not be justified as having been done in the interests of justice since no third party had suffered any damage.

The confiscation/seizure of both vehicles amounted to a lack of balance between the interests of the general community and the rights of the applicant. Therefore a violation of Article 1 of Protocol No. 1 had occurred.

In regard to the alleged violation of Article 6 of the Convention, the court noted that the fact that measures resulting from an act for which a third party (in this case M.) was prosecuted for, affecting in an adverse manner the property rights of the applicants, could not in itself lead to the conclusion that, during the course of the criminal proceedings complained of, any “criminal charge”, for the purpose of Article 6, was brought against the applicants. Therefore, the court concluded that Article 6 in its criminal head was inapplicable and the applicants had not invoked this provision under its civil head. Thus, the claim of a lack of access to court had been unfounded. Furthermore, the court concluded that Article 3 of the Ordinance did not create any presumption of guilt and the applicants had not been found guilty of a crime.

In regard to the alleged violation of Article 7 of the Convention, the Constitutional Court concluded that the arguments of the applicants were unclear and incomprehensible. Therefore the applicants had failed to prove any violation of Article 7.

B. Relevant domestic law

In so far as relevant, Article 3 of the Motor Vehicles Insurance (Third ‑ Party Risks) Ordinance, Chapter 104 of the Laws of Malta, reads as follows:

“ (1) Subject to the provisions of this Ordinance, it shall not be lawful for any person to use or to cause or permit any other person to use a motor vehicle on a road unless there is in force in relation to the user of the vehicle by that person or that other person, as the case may be, such a policy of insurance in respect of third-party risks as complies with the requirements of this Ordinance.

(1A) It shall be presumed that there was not a policy of insurance in force in terms of subarticle (1), unless the person charged with an offence under subarticle (1) shall show the contrary through the production of a certificate of insurance issued under article 4(4).

(1B) It shall be a valid defence , in prosecution for an offence under subarticle (1), for the defendant to prove that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of the offence.

(2) If a person acts in contravention of this article he shall, on conviction, be liable -

( a ) in the case of a first offence, to a fine ( multa ) of not less than two thousand and three hundred and twenty nine euro and thirty-seven cents (€2,329.37) but not exceeding four thousand and six hundred and fifty-eight euro and seventy-five cents (€4,658.75) or to imprisonment for a term not exceeding three months, or to both such fine and imprisonment;

( b ) in the case of a second offence, to a fine ( multa ) of not less than four thousand and six hundred and fifty-eight euro and seventy-five cents (€4,658.75) but not exceeding five thousand and eight hundred and twenty-three euro and forty-three cents (€5,823.43) or to imprisonment for a term not exceeding six months, or to both such fine and imprisonment;

( c ) in the case of a third or subsequent offence, to a fine ( multa ) of not less than five thousand and eight hundred and twenty-three euro and forty-three cents (€5,823.43) but not exceeding six thousand and nine hundred and eighty-eight euro and twelve cents (€6,988.12) or to imprisonment for a term not exceeding one year, or to both such fine and imprisonment, and

( i ) where the offence consists in the use of a motor vehicle on a road by a person who is the owner of the motor vehicle or an employee of, or a member of the family of and living with, the owner of the motor vehicle, when there is not in force a policy of insurance in respect of such vehicle as complies with the requirements of this Ordinance, the court shall, in addition to the pu nishments laid down in this sub ‑ paragraph, order the forfeiture of the motor vehicle;

(ii) where the offence, as aforesaid, is committed by any other person, the court shall, in addition to the punishments laid down in this sub ‑ paragraph, impose a further fine ( multa ) equivalent to the value of the motor vehicle”.

Article 61(1) of the Traffic Regulation Ordinance, Chapter 65 of the Laws of Malta provides:

“ Any person who merely with the intention of making temporary use thereof drives away any vehicle, whether propelled by mechanical power or by any other means, without having either the consent of the owner thereof or other lawful authority, shall, on conviction, be liable to imprisonment for a term not exceeding six months or to a fine ( multa ) not less than one hundred and sixteen euro and forty-seven cents (116.47) but not exceeding two hundred and thirty-two euro and ninety-four cents (232.94) or to both such imprisonment and fine”.

Article 416(4) of the Criminal Code, Chapter 9 of the Laws of Malta, reads as follows:

“ In no case shall the appeal entered by the Attorney General or by the complainant operate as a stay of execution of the judgment.”

COMPLAINTS

The applicants allege an infringement of their rights under Article 1 of Protocol No. 1 of the Convention since they have not received adequate compensation for the violation of this provision found by the Constitutional Court. The applicants further allege a violation of their right under Article 6 of the Convention arguing that they did not have access to a court to challenge the measure depriving them of or interfering with their property .

QUESTIONS TO THE PARTIES

1. Bearing in mind the findings of the Constitutional Court, in particular its award concerning solely non-pecuniary compensation for the violation of Article 1 of Protocol No. 1 to the Convention and its order that the parties pay one fifth of their costs of the proceedings despite them having been successful in their claim, can the applicants still claim to be victims, within the meaning of Article 34 of the Convention, of a violation under Article 1 of Protocol No. 1?

2. If so, has there been a violation of Article 1 of Protocol No. 1 to the Convention in respect of both applicants and their respective vehicles? In particular, was each measure lawful and did it cause an excessive burden on the applicants?

3. Did the applicants have access to a court as required by Article 6 § 1 in its civil limb to challenge the confiscation of their vehicles?