FOURTH SECTION

Application no. 14501/12 Michael BORG and others against Malta lodged on 6 March 2012

STATEMENT OF FACTS

The applicants, Mr Michael Borg, Mrs Olympia Borg, Mr Andrew Vella and Mrs Lorena Vella are Maltese nationals, who were born in 1975, 1976, 1974 and 1973 respectively. The last applicant lives in Canada and the remaining applicants live in Gozo , Malta. They are represented before the Court by Dr T. Abela , a lawyer practising in Valletta.

A. The circumstances of the case

1. Background of the case

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

Following a project launched in 1984 requesting the public to identify features of the Maltese cultural and natural heritage which deserved to be included in the Conservation and Preservation Plan for the protection of the environment, a villager suggested to protect the picturesque view which was available in the North of Nadur , Gozo , in the area at issue in the present case.

On 19 June 1991 the Commissioner of Lands ( CoL ) expropriated a piece of land in the above mentioned area – it is not clear whether this land belonged exclusively to the applicants or also to the Nadur Parish Church – in order to widen an existing road. The area eventually became a belvedere, with an unobstructed view overlooking the sloping fields down to the sea. No contestation arose in relation to this (first) expropriation. The applicants ’ property abuts immediately onto the belvedere and is, in effect, part of the view from the said belvedere and part of the sloping fields.

On an unspecified date the applicants sought planning permission to develop the remaining part of the land owned by them, but the Malta Environment and planning Authority refused the application on the ground that the site, although within a development zone, was a green area.

Subsequently, again on an unspecified date, the applicants filed a law suit against the CoL requesting the court to declare that they had a right to erect a boundary wall between their land and that expropriated (see Relevant domestic law). The CoL did not file any pleas against the claim.

By a judgment of 25 June 2004 the Court of Magistrates ( Gozo ) in its superior jurisdiction upheld the applicants ’ claim, finding that they had a right to build such a boundary wall and authorising them to build such wall themselves “up to the height required by law”. No appeal having been lodged the judgment became final.

In the ensuing four years numerous applications were made to the court by both parties regarding the execution of the above mentioned judgment, namely for the erection of the proposed wall, in respect of technical issues (such as the removal of furnishings to enable construction and regarding distances given the sliding landscape). Inter alia , a decree of 21 August 2006, made pursuant to one of the applications, held that the wall had to be built on the confines of the land expropriated for the purposes of the belvedere (where there already existed a retaining wall) and that it had to be one and half metres high “from the surface of the belvedere”. A request by the CoL to have the height of the wall calculated from the confines (the level where the properties met) and not from the surface of the belvedere was rejected on 22 September 2006. The execution of the judgment was to take place on 5 April 2008.

On 2 April 2008 the President of Malta directe d that as from 3 April 2008 the Minister for Gozo was to assume the additional duties of the Prime Minister during his absence. On the same day a piece of land owned by the applicants on which they were to build the said boundary wall was expropriated by the CoL for the price of Euros 23,300 (“EUR”).

On 4 April 2008 the CoL requested the court to suspend the execution of the judgment in view of the above-mentioned expropriation which included part of the applicants ’ land adjacent to the existing retaining wall. According to the CoL the public purpose behind the expropriation was to safeguard the environment and particularly the belvedere (and the view therefrom) built at the expense of the tax payer from the actions to be undertaken by the applicants.

On 23 April 2008 the court rejected the request as it could not suspend the execution of a judgment which had become final and in respect of which there had been no appeal or retrial.

On 25 April 2008 the CoL lodged a further application requesting the court to prohibit the applicants from undertaking any works on the said area by reason of the expropriation of 3 April 2008. Given the circumstances the applicants accepted not to continue with the building of the wall until the competent court decided on the validity of the latter expropriation. In that light, the court did not consider it necessary to issue the relevant injunction.

On 26 April 2008 the applicants filed a judicial protest noting that they were not accepting the compensation offered and declaring their intention to institute constitutional redress proceedings in relation to the expropriation.

2. Constitutional redress proceedings

The applicants instituted constitutional redress proceedings claiming a violation of Articles 6 in so far as they were denied the execution of the judgment in their favour, and Article 1 of Protocol No. 1 to the Convention in that the expropriation of 3 April 2008 had not been in the public interest. They further invoked Article 14 of the Convention.

By a judgment of 23 April 2010 the Civil Court (First Hall) in its constitutional competence rejected the applicants ’ claims. It considered that under domestic law an owner had no right to be exempted from a taking of property which was carried out in the public interest and in exchange for adequate compensation. In that light no fair trial rights arose in relation to the expropriation itself, the right of the individual being limited to contesting the public interest and compensation at issue in a given expropriation. It held that in the present case the expropriation in 2008 had been made in the public interest to ensure the effectiveness of the 1991 expropriation, the public interest of which (the creation of a belvedere) was not disputed. The fact that certain third parties had more to gain than others did not deprive the expropriation of its public interest, given that the entire Maltese and Gozitan population would benefit from the view. There was nothing wrong in the State ensuring that a plan it had undertaken years before was not frustrated. The court considered that while the Government ’ s negligence in the proceedings before the Court of Magistrates in Gozo was regrettable, they had been entitled to take action to correct their mistakes. It further considered that there had not been any discriminatory treatment. The project in 1984 had been started by a socialist Government and then continued by a nationalist Government, and neither the initiation nor the continuation thereof appeared politically motivated. Both Governments were solely taking action for the preservation of the environment. Moreover, while it was true that the 2008 expropriation had been made at a time when the Minister for Gozo was acting Prime Minister and that such an action probably benefited mostly the residents of Nadur who were, in the main, of the same political persuasion as the Minister for Gozo , it did not appear that the expropriation (which had been decided on 14 March 2008) was a result of any intervention of hers. Neither had it been proved that the applicants were treated differently to others in their position or that the expropriation had been politically motivated.

By a judgment of 30 September 2011 the Constitutional Court rejected the applicants ’ appeal. It confirmed the first-instance judgment in respect of the Article 1 of Protocol No. 1 claim in full, as the expropriation was indeed necessary to protect the view which was in the general interest and which would have been frustrated by the building of a wall. It considered that the applicants had not been denied access to a court as they could still contest the merits of the expropriation in relation to the public interest and the amount of compensation. The fact that the applicants had a judicially recognised right over that land (in the instant case, the right to build a dividing wall when two properties belong to different persons) did not mean that that land could not be expropriated according to the necessary legal procedures, subject always to the judicial review of the administrative act of expropriation. Lastly, in relation to the complaint under Article 14 it considered that even if the Minister had been involved in the expropriation, it had already been found that the latter was legitimate, and it stood to reason that a minister had to act even if it happened that the beneficiaries shared the same political opinion. In the court ’ s view the argument that, unlike the applicants, the neighbours had direct access to the minister enabling them to influence decision making could not mean that there had been discriminatory treatment. Similarly the fact that other people ’ s property had not been expropriated did not mean that the expropriation was discriminatory, as not everyone ’ s property was relevant for the purposes sought to be achieved by the expropriation. Moreover, the applicants were owed compensation for the taking of their property.

B. Relevant domestic law

Article 434 of the Civil Code, Chapter 16 of the Laws of Malta reads as follows:

“ Every person may construct any wall or building on the boundary-line of his tenement, saving the right of the neighbour to acquire co-ownership of the wall ( ... )”

Article 408 of the Civil Code, in so far as relevant reads as follows:

“A party-walls between two courtyards, gardens or fields, may be built of loose stones, but must be -

(c) one and one-half metres high, if it is between two fields.”

COMPLAINTS

The applicants complain under Article 6 of the Convention that the expropriation of 3 April 2008 had been made solely to avoid the execution of the judgment in their favour dated 25 June 2004. They further invoked Article 1 of Protocol No. 1 complaining that the said expropriation had not been made in the public interest but only in the interest of a few persons (closely connected with the minister) who lived in the same road and who wanted to retain an unobstructed view with the ensuing added (financial) value to their property. Moreover, other third parties whose land was in a position like that of the applicants did not have their land expropriated but, on the contrary, were granted building permits. Thus, the applicants were the only ones who had to carry the burden in favour of a few people ’ s private interests. In this light, the applicants also invoked Article 14 complaining further that they received such a treatment only because they did not share the same political opinion as the party in Government at the time, and their own political views differed from those of the persons who would benefit from the applicants ’ impossibility to build the wall.

QUESTIONS TO THE PARTIES

1. Did the action of the national authorities, namely the expropriation of 3 April 2008, interfere with the enforcement of a judicial decision in favour of the applicants, preventing its execution, in breach of Article 6 § 1 of the Convention (see Immobiliare Saffi v. Italy [GC], no. 22774/93, ECHR 1999 ‑ V and Okyay and Others v. Turkey , no. 36220/97, ECHR 2005 ‑ VII) ?

2. Has the deprivation of the applicants ’ possessions namely the expropriation of 3 April 2008 been in the public interest and in accordance with the conditions provided for by law within the meaning of Article 1 of Protocol No. 1? If so, was that deprivation necessary in the general interest? In particular, did it impose an excessive individual burden on the applicants?