DISSENTING OPINION OF JUDGE BONELLO JOINED BY JUDGE BORREGO BORREGO

A. Introduction

I voted for finding a violation. I am quite perplexed how the Court deemed a deprivation of property based on, and flowing from, a legal nullity, to be in accordance with the law .

Like several other countries, Malta could have opted to regulate planning and building contraventions by purely administrative measures. Instead, Malta chose the alternative way of having them regulated by due process, in the context of, and as a consequence to, criminal proceedings. The Court has now confirmed that the prosecution need not bother whether the criminal proceedings are valid or invalid, whether in accordance with the rule of law or in defiance of it. That is immaterial. For Strasbourg , that just makes no difference at all.

B. Sequence of relevant facts

The applicant purchased some agricultural land, on which some rural rooms had previously been built, as it resulted later, without planning permit .

The police charged the applicant, under the law as it then stood, with the offence of having carried out construction works without the necessary permit, and requested the criminal court to order the demolition of the rooms.

The court acquitted the applicant and no demolition was ordered.

Meanwhile, Parliament changed the law in the sense that, notwithstanding an acquittal of the person charged, the Court could still order the demolition of a construction built without a planning permit.

The police, disregarding the ne bis in idem anathema and in bald violation of Article 1 of Protocol 7 of the Convention, charged the applicant again with the same criminal offence; the court found the applicant guilty and ordered that the rooms be demolished.

On appeal by the applicant, the Court of Criminal Appeal acknowledged the violation of the ne bis in idem precept and revoked the judgement. Nevertheless, applying the new law, it ordered the demolition of the applicant’s rooms.

C. The Convention – the principle of legality

For the purposes of Article 1 of Protocol No 1, the demolition of the applicant’s rooms could be regarded either as a dispossession, or a control of the use of his property. For either to conform to the Convention, that encroachment on the right of property would still require that it be done in accordance with the law. This is an express, or necessarily implied, condition for any limitation placed by the state on the enjoyment of fundamental rights. There is no such thing, in the vision of the Convention, as an acceptable abridgement of a fundamental right made anyway except in accordance with the law.

The amendment to the law passed by the Maltese legislature makes it possible for the criminal court to order, at the termination of criminal proceedings against an accused person, the demolition of illegally-built structures, even when the accused had been acquitted of the charges brought against him. The new amendment provided that, at the conclusion of legally instituted proceedings, the court may still order the demolition, even though it finds the accused not guilty of the charges.

In the present case, to put it in simple terms, the demolition was not ordered as a sequel to legal proceedings, but as a sequel to illegal proceedings. The very prosecution against the applicant, originating from a violation of the fundamental right not to be tried twice for the same offence (Article 1 of Protocol 7) was, in itself, a legal non- esse , incapable by its very nature of generating legitimate consequences.

For a demolition order to be valid, Maltese law (as amended) requires the concurrence of three elements: (a) the existence of a criminal prosecution against the alleged offender; (b) a determination by the court as to whether the accused was guilty or not; (c) followed by an order for demolition.

The instant case stood this sequence on its head: (a) a null and void, ergo legally non-extant, police prosecution; (b) a quashing of the very existence of the prosecution, with no real finding by the court regarding the guilt or innocence of the accused; (c) followed by an order for demolition. Very little, if anything, survives of the sequential concatenation mandated by Maltese law for the purposes of ‘legality’.

To qualify anything flowing from what the domestic court branded as a legal nullity, as being ‘in accordance with the law’ is stretching the clear letter and spirit of the Convention very far. The Court of Criminal Appeal did not, in substance, find the applicant ‘not guilty’. It declared the very proceedings against him to have been tainted by essential nullity from their very inception . I find considerable difficulty in coming to terms with how an abortion of the law, acknowledged as such by the domestic courts, in Strasbourg passed effortlessly the test of legality.

The Court of Criminal Appeal did not, in substance, rule on the guilt or otherwise of the accused. One could legitimately say that all that court did was to rule on the guilt of the prosecution in instituting proceedings. In that court’s view, those could, yes, be rightly called ‘criminal proceedings’- but only in the sense that prosecuting the applicant a second time for the same actus reus amounted to a criminal act. That court acknowledged the over-riding juridical non ‑ viability and inefficacy of those proceedings against the accused.

D. Considerations

There is no doubt that the rooms in question were in a state of objective illegality (due to the wrongdoing of a third party, not of the applicant). There is equally no doubt that the authorities were in a state of human-rights illegality by instituting the second criminal action against the applicant. When it came to choosing which of the two illegalities to penalize, a court of human rights found more heinous the guilt of the stones than the illegality of a very deliberate human rights violation by the prosecution. This Court blessed the wrongdoing of a state prosecutor whose function it was to repress the wrongdoing of others, rather than be seen to reprieve two rooms somewhere in the middle of nowhere.

For breaching with malice aforethought the fundamental law of the land and the European Convention of Human Rights, a domestic court awarded the prosecution the prize it was after. And an international human rights court endorsed it. My philosophy of values finds that something worth dissenting from.

Many will argue that the objective illegality of the rooms could not be tolerated. That it should never be approved. I, too, detest building contraventions with considerable passion. And I detest murder still more. My aversions, however, hardly lead me to reckon that the rule of law can be bent, so long as the crime does not remain unpunished. I believed that, today, human rights thinking somehow went beyond that. But I stand to be disabused. The end seems to justify the meanness.