BORG AND VELLA v. MALTA
Inadmissible
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
1. The applicants, Mr Michael Borg, Mrs Olympia Borg, Mr Andrew Vella are Maltese nationals and Mrs Lorena Vella is a Canadian national. They all live in Gozo and they were born respectively in 1975, 1976, 1974, and 1973. They were represented by Dr T. Abela, a lawyer practising in Attard. 2. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. Following a project launched by the Government in 1984 asking 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 protecting the picturesque view, across open sloping fields leading down to the sea, which was visible from north of Nadur, Gozo, in the area at issue in the present case. 5. Some time later – the Government having accepted the proposal –procedures for the execution of the project commenced. In June 1991 the Commissioner of Land (CoL) expropriated a plot of land in the above-mentioned area – it is not clear whether this land belonged exclusively to the applicants or in part also to Nadur Parish Church – in order to widen an existing road and develop an open panoramic view, known locally as a “belvedere”. In the development phase of the belvedere, the Government demolished a rubble wall on the boundary between expropriated land and the applicants’ property and installed iron railings to permit an unobstructed view. In due course the area became a designated belvedere, with an unobstructed view overlooking the fields sloping down to the sea. No dispute arose in relation to this (first) expropriation. The applicants’ property abuts immediately onto and is slightly below the site of the belvedere and is, in effect, part of the view from the said belvedere and part of the sloping fields. 6. 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 grounds that the site, although within a development zone, was a protected green area. 7. Subsequently, on 1 April 2004, the applicants brought an action against the CoL, asking the court to declare that they had the right to erect a wall on the boundary between their land and the expropriated plot (see Relevant domestic law). The CoL did not submit any pleas countering the claim, although he was served with the claim on 23 April 2004. 8. Since the applicants did not own all the land expropriated in conjunction with the belvedere, the wall in question would not have been built along the entire length of the belvedere. It would only have been built on the two plots owned by the applicants, these being 12.8 metres and 7 metres wide respectively. Although not specified, from the photos and plans provided it would appear that the entire belvedere is approximately 50 metres long. 9. The case was set down for hearing for 25 June 2004. On that same day the Court of Magistrates (Gozo) in its superior jurisdiction gave judgment in default, upholding the applicants’ claim, finding that they had the right to build such a “boundary” wall and authorising them to build such a wall “up to the height required by law” under the supervision of a court-appointed architect. 10. Since no appeal was lodged, the judgment became final. 11. In the ensuing four years, numerous applications were made to the court by both parties to the suit in respect of technical issues connected with the execution of the above-mentioned judgment, that is, the erection of the proposed wall (these included the removal of items installed on the belvedere so that the wall could be constructed, the question of distances, given the sloping terrain, and the manner in which the boundary wall should be built – over which the CoL disagreed with the interpretation of the architect). A decision in the form of a decree of 21 August 2006, given pursuant to one of the applications, held that the wall had to be built along the boundaries of the land expropriated for the purposes of the belvedere (where a retaining wall already existed) and that it had to be one and half metres high measured “from the belvedere”. A request by the CoL to have the height of the wall measured from the boundaries (the level where the properties met) and not from the surface level of the belvedere was rejected on 22 September 2006. The court therefore rejected the CoL’s interpretation as to how the wall had to be built. 12. The execution of the judgment of 25 June 2004 was to take place on 5 April 2008. 13. On 2 April 2008 the President of Malta declared that as from 3 April 2008 the Minister for Gozo was to assume the additional duties of Prime Minister during the Prime Minister’s absence from Malta. By virtue of a declaration made by the acting President of Malta on 3 April 2008, a piece of land (112 square metres) owned by the applicants – which included part of the strip of land on which they were to build the boundary wall – was expropriated by the CoL for the price of 23,300 euros (EUR). 14. On 4 April 2008 the CoL asked the court to suspend execution of the judgment in the applicants’ favour in view of the above-mentioned expropriation, which included part of the applicants’ land adjacent to the existing retaining wall. According to the CoL there was a public interest in the expropriation for the purposes of safeguarding the environment and particularly the belvedere (and the view therefrom), built at the expense of the taxpayer, from the actions proposed by the applicants. 15. 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. 16. On 25 April 2008 the CoL lodged a further application asking the court to prohibit the applicants from undertaking any works on the aforementioned plot by reason of the expropriation of 3 April 2008. Given the circumstances, the applicants agreed not to proceed with the building of the wall until the competent court had decided on the validity of the second expropriation. That being so, the court did not consider it necessary to issue the relevant prohibitory injunction. 17. On 26 April 2008 the applicants lodged 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. 18. On 7 May 2008 the CoL instituted fresh ordinary civil proceedings, asking the court to declare that the land where the wall was to be built was Government land, to declare the decision of 23 April 2008 null and void – given that the land on which the wall was to be built had now been expropriated for a public purpose – and to revoke any other court decision issued after the 25 June 2004 intended to establish the boundaries between the property of the Government and that of the applicants. 19. The hearing of the case was suspended in view of the constitutional redress proceedings lodged by the applicants (see below). It does not transpire that they have been resumed. 20. On 23 July 2008 the applicants instituted constitutional redress proceedings claiming a violation of Article 6 of the Convention – in so far as they had been denied execution of a 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. 21. 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 an expropriation of property which was carried out in the public interest and in exchange for adequate compensation. That being so, no fair-trial rights arose in relation to the expropriation itself, the right of the individual being limited to contesting the public interest and the compensation at issue in any 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 (people living in the area of Nadur) 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 embarked on 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 grave, 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 to have been politically motivated. Both administrations were taking action solely 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 brought most benefit to 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, that is to say prior to the Minister’s being assigned the duties of acting Prime Minister) was a result of any intervention on her part. Neither had it been proved that the applicants were treated differently from others in their position or that the expropriation had been politically motivated. 22. By a judgment of 30 September 2011 the Constitutional Court rejected an appeal lodged by the applicants. It confirmed in full the first-instance judgment in respect of the claim under Article 1 of Protocol No. 1, 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 further 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 owners) did not mean that that land could not be expropriated in accordance with the existing 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 expropriation was legitimate, and it was self-evident 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, did 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 purpose sought to be achieved by the expropriation. Moreover, the applicants were entitled to compensation for the taking of their property. 23. Pending the proceedings before this Court and after the parties had submitted their observations, by means of a publication in the Government Gazette of 21 August 2014, the President of Malta revoked the President’s Declaration of 3 April 2008 which had expropriated the applicants’ land. 24. According to information submitted by the parties, the applicants became aware of the revocation on an unspecified day, weeks after it happened. Subsequently, the applicants informed the Government Agent, who according to the applicants was unaware that the measure had been lifted. The parties met and agreed that the Government agent would inform the Court about the matter. 25. The Court was eventually informed of the matter on 4 November 2014, both parties having claimed that the delay in informing the Court was due to an oversight and a lack of co-ordination, for which they apologised to the Court. 26. Article 434 of the Civil Code, Chapter 16 of the Laws of Malta reads: “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: “A party-wall 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.”