CEDH · CASELAW;CLIN;ENG — 8 novembre 2005

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 80 November 2005 Saliba v. Malta - 4251/02 Judgment 8.11.2005 [Section IV] Article 1 of Protocol No. 1 Article 1 para. 2 of Protocol No. 1 Control of the use of property Order to demolish a storage facility on the basis of a law which was amended in the course of the proceedings against the applicant: no violation   Facts : 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 demolish 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. Law – Article 1 of Protocol No. 1: As the findings of the domestic courts had not in any way adversely affected the applicant’s position as the legal owner of the land, and, moreover, the Court had not been informed of any steps which had been taken to enforce the demolition order, it could not conclude there had been a de facto expropriation. The demolition order had aimed at ensuring compliance with the general rules concerning the prohibitions on construction, and had thus amounted to a control of “the use of property” within the meaning of this provision. Prior to the amendment of the law which had served as a legal basis for the impugned measure, demolition could only be ordered following a finding of criminal guilt. However, as the Court had stated in its decision on admissibility, the demolition order did not constitute a “penalty” within the meaning of Article 7 of the Convention, and, the legislature was not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws. Moreover, nothing suggested that the amendments introduced were aimed at influencing the outcome of the proceedings which had been instituted against the applicant. Therefore, the measure complained of satisfied the requirement of lawfulness within the meaning of this provision. It also pursued the legitimate aim of preserving the environment and ensuring compliance with building regulations. As to whether the measure was justified, the effect of ordering the demolition of a totally unlawful construction was to put things back in the position they would have been in had the requirements of the law not been disregarded. Thus, the measure was not disproportionate to the aim pursued. The fact that the applicant had been acquitted at the outset of the criminal proceedings did not change this conclusion. To hold otherwise would be tantamount to oblige the domestic authorities to tolerate unlawful constructions each time their ownership was transferred to a third bona fide party. Conclusion : non-violation (five votes to two).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes