FOURTH SECTION
CASE OF
LAY LAY COMPANY LIMITED v. MALTA
(Application no.
30633/11)
JUDGMENT
STRASBOURG
23 July 2013
This judgment will become final in the circumstances set
out in Article 44§2 of the Convention. It may be subject to editorial revision.
In the case of Lay Lay Company Limited v. Malta,
The European Court of Human
Rights (Fourth Section), sitting as a Chamber composed of:
Ineta Ziemele, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
Lawrence Quintano, ad hoc judge,
and Fatoş Aracı, Deputy Section
Registrar,
Having deliberated in private on 2 July 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
30633/11) against the Republic of Malta lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by Lay Lay Company Limited (“the applicant company”),
registered in Malta on 16 May 2011.
The applicant company was represented by Dr I.
Refalo and Dr J. Borg, lawyers practising in Valletta. The Maltese
Government (“the Government”) were represented by their Agent, Dr P. Grech,
Attorney General.
The applicant company alleged that it had been
denied access to court, in violation of Article 6 § 1 of the Convention, to
contest the refusal of its building permit application, and that as a result its
property rights under Article 1 of Protocol No. 1 to the Convention had been
violated.
On 16 May 2012 the complaints under Article 6 and
Article 1 of Protocol No. 1 to the Convention were communicated to the
respondent Government. It was also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 1).
Mr Vincent De Gaetano, the
judge elected in respect of Malta, was unable to sit in the case (Rule 28).
Accordingly, the President of the Chamber decided to appoint Mr Lawrence
Quintano to sit as an ad hoc judge (Rule 29 § 1(b)).
THE FACTS
I. THE CIRCUMSTANCES
OF THE CASE
The applicant company was registered in Malta on 7 June 1979. Its registered address is in Fgura, Malta.
A. The background of the case
In July 1984 A., on behalf of the applicant
company, and a third party, C., purchased approximately 4,500 sq. m of land in Ghaxaq.
The deed of sale referred to the land as a “field”. According to the applicant
company, the land was a building site under the provisions of the Building
Development Areas Act 1983 (the 1983 Act), as it had a frontage on a public
road and was situated within 120 m of a built-up area.
In August 1984 an application was lodged in the
name of the co-owner C. with the Works Department (to be examined by the
Planning Area Permits Board (“the PAPB”), the body entrusted with assessing building
applications) for permission to build several garages with upper floors (mezzanini)
on the land.
On 6 September 1985 the applicant company
purchased C.’s share and became the sole owner of the land. The PAPB was not
informed of that change at the time.
At a meeting on 10 July 1986 the PAPB approved
the application to develop the land as per the plans submitted, subject to the
payment of road contribution costs. The relevant minutes read as follows:
“There would be no objection to the erection of garages
for private cars with overlying dwellings subject to conditions on Form TH and
as per plans submitted”.
The applicant company explained that, generally, once the PAPB had
approved an application, notification would be made to the contribution section
of the Works Department, which would issue a bill and send the relevant file to
the cash office to await payment. Upon payment, a receipt would be issued for
presentation to the contribution section, which in turn would notify the PAPB
that the bill had been paid (clearance). The PAPB would then issue the relevant
permit containing the conditions for development.
Subsequently the applicant company started developing
the land by building on it.
On 5 May 1987 the road contribution bill was
sent to C. On 15 June 1987 a final notice in respect of the bill was
sent to C. No payment ensued. A minute, registered in the file, dated 30 June 1987,
stated that a “permit has not been issued as applicant failed to pay the contribution
bill and works are in hand”. As the bill remained unpaid, in July 1987 C. was
sent a letter of warning informing him that the construction undertaken was not
covered by a permit.
On 14 July 1987 the applicant company asked its
architect to verify matters in relation to the permit with the PAPB. According
to the architect, his queries and a request for a copy of the relevant
contribution bill remained unanswered as the file concerning the application
had been transferred to the Attorney General’s office in connection with the
institution of criminal proceedings.
On 25 March 1988 Act X of 1998, namely the
Building Permits (Temporary Provisions) Act (“the 1998 Act”) was enacted to
regulate the granting of building permits. Article 10 of that Act repealed the
1983 Act, except for the provisions relating to building permits granted prior
to the enactment of the new legislation. The 1988 Act introduced temporary
building schemes until local plans for building were put in place by
Parliament.
On 17 January 1992 the Development Planning Act (“the
1992 Act”) introduced extensive changes to the law on issuing permits, inter
alia, by establishing the Planning Authority (“the PA”). Section 63
repealed those parts of the 1983 Act that were still operative. Most of the
provisions of the 1992 Act entered into force on 28 October 1992 but section 63
did not enter into force until 1 December 1992.
In May 1992 the Director of the Public Works
Department sent C. a reminder regarding the outstanding bill, giving him
twenty-four hours to pay. Later that month, the Director of the Public Works
Department asked C. to make payment by means of a judicial letter. No payment
ensued.
On 26 August 1992 a fresh bill (amounting to
7,962 euros (EUR)) was issued to enable the relevant permit to be granted. The
bill was again sent to C., who had originally applied for the permit. On an
unspecified date C. passed the bill on to A. as the representative of the
applicant company, who paid it on 14 December 1992. The contributions
department issued clearance in respect of the application.
On 31 December 1992 the Development Permission
(Method of Application) Regulations entered into force (see Relevant Domestic
Law) by means of Legal Notice 133 of 1992.
In 1993 the PAPB ceased to exist and the PA
(eventually called the Malta Environment and Planning Authority (“the MEPA”))
was set up. Its Development Control Commission (“the DCC”) was entrusted with
the issuing of permits (see Relevant Domestic Law). On 26 January 1993 the
applicant company’s architect submitted a “Notice for Consideration by the PA” form
in accordance with the transitional arrangement for PAPB applications. The form
indicated C. as the owner.
It appears from the minutes dated 18 March 1993
(in the file relating to the permit application) that following payment, the PA
was reluctant to issue the permit since it had not been approved while the ex-PAPB
chairman had been in office. The file was subsequently transferred from one
person to another without any action being taken until 17 September 1993, after
which date the file was misplaced.
On 4 August 1995 the applicant company’s
architect contacted the authority in connection with the permit. The architect
received a reply asking him to submit a copy of the site plan indicating the
site in question, as the application could not be traced. The requested document
was duly supplied and received by the authority, but no further action was
taken.
In a letter dated 16 May 1996 the applicant
company’s newly appointed architect asked the Chairmen of the DCC to issue the
relevant permit, in respect of which clearance had been issued by the
contributions department. By means of the same letter she informed the
authority that the applicant company had acquired the property in its entirety and
she attached the relevant documentation. Following the instructions received by
the DCC personnel to the architect, to the effect that the request had been
forwarded to G.C. for his perusal as necessary, on 2 August 1996 another letter
was sent by the architect to the Planning Directorate for the attention of G.C.
namely, the manager within the Development Control Unit (“DCU”), enquiring
about the outcome of the application. In his letter dated 7 October 1996 G.C.
informed the applicant company’s architect that the permit could not be issued
because at the time of the payment in 1992, the bill of 1986 had fallen
through. The letter further stated that:
“the clearance referred to [in your letter] was subsequent to a
clear decision not to accept payment six years after the billing. I trust the
above information is sufficient for your guidance”.
Between 1996 and 1999 various meetings took
place between the applicant company and the PA (by then called MEPA). However,
the latter did not indicate whether or not it would grant the applicant company
the relevant permit. Following the authorities’ failure to respond to a letter
of 17 February 1999 soliciting action on the matter, on 15 June 1999 the
applicant company filed a judicial protest (see below).
B. Criminal proceedings
In the meantime, in August 1987 the Public Works
Department asked the Commissioner of Police to institute proceedings against
the applicant company for illegal construction. Criminal proceedings started in
April 1988 but were suspended in November 1998 without judgment.
C. Ordinary proceedings
On 15 June 1999 the applicant company lodged a
judicial protest against the MEPA requesting that the relevant permit be issued
and holding it responsible for damages resulting from the delay in issuing it.
On the same day the MEPA issued a stop notice in
relation to the development of the land.
On 5 July 1999 the applicant company lodged an appeal
before the Development Appeals Board (“the DAB”) against the stop notice. By a
judgment of 20 August 2003 the DAB rejected the appeal, holding that the PAPB
had never issued a permit and that the recommendation of the PAPB together with
approval from the sanitary engineering officer and the Aesthetics Board did not
equate to a permit to build. The issuance of the contribution bill before the
issuance of the permit was simply an administrative practice and the payment of
that bill could not be equated to, and did not automatically lead to, approval
or the issuance of a permit. The DAB therefore concluded that the development
to which the stop notice applied was not covered by a permit as the application
submitted had been refused. No proof had been submitted that some other permit
had been issued or that the applicant company had tried to rectify that
position.
On 3 September 2003 the applicant company
appealed to the Court of Appeal. On 24 June 2004 the appeal was dismissed, as the
grounds for appeal had not been on points of law.
During the appeal proceedings it transpired that
the MEPA considered the letter sent by G.C. in October 1996 as a refusal to
issue the permit. That decision had, by then, become final since the time-limit
for lodging an appeal of thirty days, from the date of the decision, had
lapsed.
D. Constitutional redress proceedings
On 23 September 2004 the applicant company
instituted constitutional redress proceedings. It complained that the
authorities’ failure to issue the relevant permit, the subsequent stop notice
and the way in which the permit was rejected, namely without a proper decision,
which had also denied it the opportunity to contest that decision, had violated
its rights under Article 6 (access to court and length of proceedings) and
Article 1 of Protocol No. 1 to the Convention.
By a judgment of 29 September 2009 the Civil
Court (First Hall), in its constitutional competence, rejected a plea of
non-exhaustion of ordinary remedies and took cognisance of the case on the
merits. It noted that the MEPA’s objection in that respect had not mentioned
which remedies the applicant company had failed to exhaust. Indeed, the
applicant company appeared to have availed itself of the remedies made
available by the MEPA, even though it had not considered the letter of 7
October 1996 as an official refusal. It had, moreover, taken judicial action to
challenge the stop notice issued against it and any other proceedings that might
have been available were not adequate remedies for the purposes of the
applicant company’s complaints. They therefore deserved to be examined by the
tribunals of constitutional competence.
As to Article 1 of Protocol No. 1, the court considered
that the applicant company possessed only the land it was developing, but could
not claim to possess any permit to develop it. The applicant company was aware
that it was building without a permit and had failed to request to rectify that
position. The court considered that the State had the power to disallow the
building of property without a permit in order to ensure that developments
conformed to planning regulations that were in the public interest. A decision
to demolish a building without a permit was therefore a proportionate remedial
action. Moreover, it held that the payment of the road contribution bill did
not entail the automatic issuance of a permit - indeed, more recently, a part
of that payment was required on lodging a planning application.
As to Article 6, the court considered that the
State had an obligation to provide access to courts to contest an
administrative decision concerning civil rights and obligations. Nevertheless,
in the applicant company’s case, the lack of a decision on whether to grant a permit
did not deny it access to a court since, even before the letter of 1996 was
sent, the applicant company could have brought proceedings before the ordinary
tribunal contesting the MEPA’s behaviour. After receiving the letter of 1996,
the applicant company had even more grounds for doing so, as it had complained
that the authority issuing that letter did not have the competence to do so. It
followed that the applicant company could not blame the authorities as it was
the applicant company that had failed to take up such a remedy, which would
have satisfied Article 6 requirements. As to the complaint that the MEPA had
taken an unreasonable length of time to issue a decision on the application,
the court considered that the MEPA was not a tribunal for the purposes of the
Convention. It followed that no violation could ensue.
By a judgment of 25 February 2011 the Constitutional Court upheld the first-instance judgment. It reiterated that the applicant
company had not been issued with a permit, so it could not claim to have a
possession. Referring to the DAB’s finding of 20 August 2003, it was of the
view that the permit had been refused because development work had been carried
out before a permit had been granted and the contribution bill had not been
paid. The PAPB’s decision of 1986 had only been a recommendation, which,
moreover, required the Minister’s further approval. Payment of the road
contribution did not oblige the MEPA to issue a permit, particularly given the
delay in payment. Therefore, the applicant company had no legitimate
expectation of ever being granted a permit.
Viewing the matter from another perspective, the
court considered that the applicant company owned the land, so both the process
of applying for a permit and the authorities’ failure to issue one had been an
interference with the applicant company’s property rights as it constituted a
control of use of such property. The requirement to apply for a permit was a
measure in accordance with the law and in the public interest, with the
legitimate aim of ensuring rational development while safeguarding the
environment in the country. Thus, the measure was undoubtedly proportionate.
Similarly, the failure to issue a permit for the reasons mentioned above was also
in the public interest and pursued legitimate aims such as respect for the rule
of law. The same applied to the stop and enforcement notice issued by the
authority.
As to Article 6, which was applicable to the
present case, the court considered that the DCU manager’s letter had been sent
using the authorities’ letterhead and on behalf of the authority to the
applicant company’s architect, who made no attempt to appeal against such a decision
(under section 37 of the Development Planning Act); nor had any other judicial
proceedings been instituted. In the court’s view, the letter of 7 October
1996 undoubtedly contained elements allowing the applicant company to
understand that his permit application had been refused and therefore allowing
the company to bring an appeal before the PAB and if necessary a further appeal
before the Court of Appeal. Moreover, since the applicant company had complained
that the letter was an abuse of the powers conferred on G.C., it could also have
requested a judicial review. Nevertheless, it remained passive and inert.
On 15 March 2007, during these proceedings, the Constitutional Court rejected the applicant company’s request to submit further evidence to
substantiate its discrimination complaint, since the appeal application had not
made reference to any such complaint.
E. Other relevant facts
In the meantime, in 2006 the MEPA approved the
South Malta Local Plan, according to which the applicant company’s property
fell outside the development zone. The applicant company submitted
documentation supporting its argument that the site was surrounded by developments
which fell outside the new development zone but which had been approved by
successive authorities.
The sum paid by the applicant company in
contribution costs (approximately EUR 7,970) has not been refunded by the
authorities.
II. RELEVANT DOMESTIC LAW
A. The 1992 Act
Section 15 of the Third Schedule of the
Development Planning Act (the 1992 Act), Chapter 356 of the Laws of Malta, in
so far as relevant, reads as follows:
“ (1) Any person who feels aggrieved by a decision of the
Authority as provided in article 15(1)(a) of this Act, may appeal to the
Planning Appeals Board within thirty days from the date the decision is
communicated to the person on whose application the decision was taken.
...
(8) If the appellant or the Authority are dissatisfied with any
point of law decided by the Board, they may appeal to the Court of Appeal
(Inferior Jurisdiction) by an application filed as provided in article 15(10).”
Section 15(1)(a) of the 1992 Act reads as
follows:
“... the Appeals Board shall have jurisdiction to:
(a) hear and determine all appeals made by a person
aggrieved, other than an interested third party, by any decision of the
Authority on any matter of development control, including the enforcement of
such control;”.
The 1992 Act provided for a Development Control
Commission within the PA. In so far as relevant, section 13 of the Act reads as
follows:
“(2) The functions
of the Commission shall be such of the functions of the Authority with respect
to development control, including enforcement, as the Authority may from time
to time delegate to it and require it to perform, subject to such conditions as
the Authority may deem appropriate.
(3) The decisions of the Commission including any development permission
issued by it, shall be deemed to be, and shall have the same force and effect
as the decisions of the Authority, except in respect of matters which the
Authority expressly reserves to itself or requires to be referred to it for
determination, and the expression ‘decision of the Authority’ wherever it
appears in this Act, shall be construed accordingly.
(4) The decisions of the Commission shall only be binding if they
are supported by the votes of not less than four of its members; and they shall
be published as soon as practicable after the meeting at which they are taken.
(5) The meetings of the Commission shall be open to the public
subject to the power of the Commission to exclude any member of the public if
it deems it necessary so to do for the maintenance of order. Furthermore the
participation of the public on any matter under consideration by the Commission
shall only be allowed at the discretion of the Commission and, if so required
by it, subject to prior arrangements.
(6) Subject to the foregoing provisions, and to any rules that may
be prescribed by the Authority, the Commission may regulate its own procedures.
(7) The staff of the Commission shall consist of officers and employees
of the Authority detailed to service the Commission; and the Authority shall
further provide the Commission, out of its own resources, with such other
support as the Commission may reasonably require to carry out its functions.”
B. Legal Notice 133 of 1992
Regulation 4 of the Development Permission
(Method of Application) Regulations 1992, which came into force on
31 December 1992 by means of Legal Notice 133 of 1992, in so far as
relevant, reads as follows:
“(1) Notwithstanding anything contained in regulation 3
of these regulations, the following provisions of this regulation shall apply
in respect of applications for a building permit which were submitted to the Planning
Area Permits Board on or before 27th November 1992 and not determined by that
Board.
(2) Where an application for a building permit was submitted as
aforesaid an application to the Authority shall be sufficiently made if the
applicant, or an architect and civil engineer on his behalf, gives notice to
the Authority in writing that he wishes the application submitted as aforesaid to
continue to be considered as an application made to the Authority, indicating
the reference number of the application for a building permit, the development proposed,
the location of the site, the name and address of the applicant and of the
architect, and such other information as may be necessary to identify the
application:
Provided that an application for a building permit shall not be
further considered by the Authority and shall be considered as withdrawn -
(a) unless the notice given under this regulation is accompanied
by the certificate required by article 32(3) of the Act made out and signed by
the applicant on one of the forms printed and provided by the Authority for the
purposes of an application for development permission, as the case may require;
(b) where the building permit fee or the contribution
for road formation, alignment and main sewer has not been paid by the date
specified for payment on the contribution bill issued in respect of the said application
or within three weeks from the date of issue, whichever is the earlier date;
(c) if a notice as provided in this regulation is not
given to the Authority on or before 1st March, 1993.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant company complained that as a
result of the authorities’ protracted and unconventional procedures in refusing
the permit application, it had been denied the right of access to court to
contest the failure to issue a permit, as provided in Article 6 § 1 of the
Convention, which reads as follows:
“1. In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a reasonable
time by an ... tribunal established by law.”
The Government contested that argument.
A. Admissibility
Although the Government have not contested the
applicability of Article 6 § 1 to this case, the Court finds it relevant to
point out the following. Where there is a dispute, Article
6 applies to proceedings concerning the granting of a building permit given its
civil nature (see Ortenberg v. Austria
of 25 November 1994, Series A no. 295-B, pp. 48-49, § 28) and to
proceedings challenging a change of designation of land which denied the
applicant a right to build, a right he had had at a particular point in time
when the land had been designated as building land (see Haider v. Austria
(dec.), no. 63413/00, 29 January 2004). However, Article 6 is not applicable to
proceedings for a building permit if building is not allowed under the zoning
plan in force (see Enzi v. Austria
(dec.), no. 29268/95, 8 February 2000).
The Court notes that, in the present case, at
the time of the procedures undertaken to acquire a permit (and at least before
2006), the law did not exclude the possibility of building on the applicant
company’s land. It follows that, as held by the domestic courts, Article 6
applies to the instant case.
The Court notes that this part of the complaint is
not manifestly ill-founded within the meaning of Article 35 § 3 (a) of
the Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant company
The applicant company complained that the letter
sent on 7 October 1996 by the DCU manager did not conform to the
requirements of a refusal decision, mainly because the manager had not had the
authority to issue or refuse such permission. Under the 1992 Act, it was the DCC
within the PA that was entrusted with the function of issuing or refusing
permits (see section 13 of the Act under Relevant Domestic Law above) and the legislation
did not delegate such authority to the DCU. Moreover, under the Act, an appeal had
to be lodged within thirty days of the date when the decision was communicated
to the applicant (see paragraph 40 above). However, the letter allegedly containing
the decision was sent only to the applicant company’s architect and not to A.
on behalf of the applicant company. Thus, the applicant company considered that
the authority had failed to follow the statutory procedure for indicating a
formal refusal. The letter was part of an ongoing exchange between the
authority and the applicant company. It was evident that the decision had not been
final, given the further discussions that had ensued with the authorities. In
that light, the applicant company had been of the view that proceedings were
still ongoing. It transpired only during subsequent proceedings that the authorities
considered the letter of 7 October 1996 as a decision on the permit, by which
time the deadline for lodging an appeal had expired. It followed that the
applicant company had been denied the right to appeal against that “decision”
before the Planning Appeals Board (“the PAB”) (see paragraph 40 above) and
eventually the Court of Appeal.
In reply to the Government’s argument, the
applicant company failed to see how Regulation 4 (2) (b) cited by the
Government could be understood as laying down the procedure for deciding
whether to grant a building permit.
As to the Government’s reliance on a number of
other alleged remedies, the applicant company noted that such argumentation
went against the domestic court’s findings rejecting a plea of non-exhaustion
of ordinary remedies. Moreover, proceedings to complain about the alleged
violation, such as constitutional proceedings or proceedings before this Court,
did not amount to “access to court” for the purposes of the determination of
the original claim.
(b) The Government
The Government submitted that the letter of 7
October 1996 sent to the applicant company’s architect constituted a decision,
in that it made it known officially to the applicant company that it could no
longer claim to avail itself of the 1984 application, which had lapsed. Although
the letter did not give a detailed explanation of the law and the facts of the
case, it contained enough information for the applicant company to understand
that the bill issued in 1986 was considered to have lapsed owing to
non-payment. The letter substantially stated the content of the proviso in
Regulation 4 (2) (c) (sic) of the Development Permission (Method of
Application) Regulations 1992, which specifically provided for the conditions
under which applications that had been pending before the PAPB could be
referred to the PA.
The Government submitted that the decision had
been issued by an official of the authority and sent on the authority’s official
letterhead. Moreover, the letter had been sent to the applicant company’s
professional representative (the architect) following a meeting with the latter.
It had stated that “the permit cannot be issued” and was in reply to a letter
of 2 August 1996 in which the applicant company had requested the issuance
of a permit. In such circumstances, it could not be said that the content of
the decision had not been made known to the applicant company or that its
content had not been comprehensible. The Government stressed that that decision
had been subject to appeal to the PAB and further appeal to the Court of
Appeal, but that the applicant company had failed to pursue such remedies. The
Government further considered that ulterior negotiations could not interrupt
time-limits for appeal and it had been for the applicant company to lodge an
appeal irrespective of any on-going negotiations.
The Government also submitted that the applicant
company had had proper access to a court through a plurality of remedies,
irrespective of the domestic courts’ findings in relation to exhaustion, which
were dependant on the way the submissions had been presented. If the applicant company
felt that it had been precluded from appealing before the PAB or that such an
appeal would have been futile in terms of Legal notice 133 of 1992, it could have
challenged the decision by instituting judicial review proceedings of the administrative
action before the ordinary courts (Article 469 A of the Code of Organisation
and Civil Procedure (“the COCP”)). Given that the decision at issue was a
procedural act in terms of Article 469 A (2) of the COCP, the applicant company
could have pursued that avenue had it felt that the decision had been procedurally
or substantively ultra vires. Furthermore, had the applicant company
felt that Regulation 4 (2) (c) of the Development Permission (Method of
Application) Regulations 1992 (see paragraph 43 above) had itself been ultra
vires, had violated its vested rights or had been inapplicable, it could
have sought to impugn that regulation by means of ordinary proceedings before
the civil courts, which had in their consistent case-law over the years
asserted a residual power to control the legality of the acts of the
administration. The same remedy would have been available had the applicant
company claimed that the permit had already been granted under the 1988 Act, as
the claim would have involved the interpretation of the law. In addition, the
Government noted that Article 116 of the Constitution granted to all persons
who impugn a law an action before the Civil Court (First Hall), together with
an appeal to the Constitutional Court. Lastly, the domestic courts had on
numerous occasions held the authorities liable for the payment of damages in
tort as a consequence of ultra vires acts, as accepted by the Court in Sammut
and Visa Investments Ltd. v. Malta ((dec.), no 27023/03, 16 October 2007).
2. The Court’s assessment
(a) General principles
. Under
Article 6 § 1 of the Convention it is necessary that decisions of
administrative authorities which do not themselves satisfy the requirements of
that Article should be subject to subsequent control by a judicial body (see Ortenberg v. Austria, cited
above, § 31, and Crişan v. Romania, no. 42930/98, § 24, 27 May 2003). The right of access to a court is an inherent aspect of the
safeguards enshrined in Article 6. Thus, Article 6 § 1 secures to everyone the
right to have a claim relating to his civil rights and obligations brought
before a court (see Markovic and Others v.
Italy [GC], no. 1398/03, § 92, ECHR 2006-XIV).
At the same time, the “right to a court” is not absolute; it is subject to
limitations permitted by implication, since by its very nature it calls for
regulation by the State, which enjoys a certain margin of appreciation in this
regard. However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence
of the right is impaired (see Edificaciones
March Gallego S.A. v. Spain, 19 February 1998,
§ 34, Reports of Judgments and Decisions 1998-I, and De Geouffre de la Pradelle v. France,
16 December 1992, § 28, Series A no. 253-B).
. Rules
governing the procedure and time-limits applicable to legal remedies are
intended to ensure a proper administration of justice and compliance with, in
particular, the principle of legal certainty (see, mutatis mutandis, Miragall Escolano and Others v. Spain, nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98,
41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, ECHR 2000-I). It is not for the Court to interpret procedural rules. Its role
in cases such as the present is to determine whether the applicant was able to
count on a coherent system that struck a fair balance between the authorities’
interests and his own and, in particular, whether he was given a clear,
practical and effective opportunity to challenge an administrative act that
allegedly constituted a direct interference with his rights (see Geffre
v. France (dec.), no. 51307/99, ECHR 2003-I (extracts)).
(b) Application to the present case
. The
Court observes that it has not been disputed that a decision on whether to
issue or reject a building permit application was subject to an appeal before
the PAB and a further appeal to the Court of Appeal. Thus Maltese law undoubtedly gave the applicant company the opportunity
to challenge the decision refusing a permit application before a court. It
therefore remains to be ascertained whether the relevant procedure, in
particular in relation to the “decision” issued by the authorities, was such as
to ensure that the right to a court was effective, as required by Article 6 of
the Convention.
. The
Court notes that, despite having been asked to do so, the Government have not submitted
details of the legislation applicable at the relevant time to the
decision-making process concerning the issuance or rejection of a building
permit application. It is, however, clear from the submissions and legislation which
the parties presented before the Court that at the relevant time such decisions
fell within the competence of the DCC, and they had to be published as soon as
practicable after the meeting at which they were taken. The decision could then
be appealed against within thirty days from the date on which it was
communicated to the person on whose application the decision was taken. It is possible
that no further details about the decision-making procedure were enshrined in
the legislation.
The Court considers that, although decisions taken in
accordance with an appropriate legislative framework ensure legal certainty and
are recommendable, the Court notes that no concrete evidence has been put
forward showing that the decision-making process applied in the present case
was not coherent and contrasted with that usually pertaining to such requests
and the relevant decisions.
. Indeed,
while it appears that the law provided for such a decision to be published, the
Court notes that no information in this respect has been submitted by the
parties. For the rest, the Court observes that while the law (see
paragraph 42 above) stated that such decisions fell within the competence of
the DCC, this did not preclude another entity from communicating the DCC’s
decision on its behalf. Indeed section 13(7) of the 1992 Act provided for staff
to service the DCC, and the October 1996 letter was sent by the manager of the DCU
to whom the DCC Chairman had forwarded the request from the applicant company’s
architect. It was sent on an official letterhead and it clearly indicated that
the permit could not be issued, and the reasons for that decision. The Court observes
that the letter contained sufficient reasons for the applicant company to be
able to contest its substance. Moreover, the letter included the phrase “I
trust that the above information is sufficient for your guidance”, a clear
indication on behalf of the authority that no further decision would be taken
and that it was for the recipient to take any further steps deemed necessary.
. Lastly,
the Court notes that while it is true that the “person on whose
application the decision was taken” had to be notified of
the decision, the letter was sent to the applicant’s architect in
response to the latter’s request of May 1996 (see paragraph 22 above). It was
therefore reasonable to conclude that given that the applicant’s architect had
the authority to enquire about and solicit the issuance of a permit on behalf
of her client (as clearly stated in the letter of 16 May 1996, despite the fact
that it referred to A. as the client and not to the applicant company), the
architect was also authorised to receive notification of a decision on the
client’s behalf. In this connection the Court reiterates that Article 6 of the Convention does not provide for specific forms
of service of documents. The question is whether an individual’s access to
court has been denied in the circumstances of the case (see Hennings v. Germany, 16
December 1992, Series A no. 251-A, and Bogonos v. Russia (dec.),
no. 68798/01, 5 February 2004).
. In
these circumstances the Court sees no reason to depart from the view taken by
the Constitutional Court that there was an administrative decision that the
applicant could have challenged by judicial proceedings. In the present
case, the letter at issue could not, at that stage, be perceived as anything
less than a decision. Therefore the applicant company was
given a clear, practical and effective opportunity to challenge the
administrative act at issue. Also bearing in mind that it is incumbent on the
interested party to display special diligence in the defence of his interests
(see Muscat v. Malta, no. 24197/10, § 59, 17 July 2012), and that in the present case the applicant company could have
at least enquired as to the scope of such a letter, the Court concludes that
the applicant company had at its disposal an effective legal avenue which it
failed to make use of. It follows, that the
applicant company has not been denied effective access to court.
. Accordingly,
there has not been a violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.1
TO THE CONVENTION
63. The applicant company
complained about the authorities’ omission to issue a valid building permit in
respect of its application. It relied on Article 1 of Protocol No. 1 to
the Convention, which in so far as relevant reads as follows:
“Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided for by law
and by the general principles of international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary to control the
use of property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties.”
The Government contested that argument.
A. The parties’ submissions
1. The applicant company’s submissions
The applicant company submitted that it had had a
legitimate expectation to be issued with a permit following the PAPB’s approval
and the eventual payment of the road contribution, as there had been no legal
impediment to its issuance. It relied on the Court’s case-law in Pine Valley
Developments Ltd and Others v. Ireland (29 November 1991, Series A
no. 222). The applicant company submitted that unlike in the case of Trimeg
(cited below by the Government), it had been certain that the site at issue
qualified as a building site in terms of the law. Among its arguments to
substantiate that claim was the fact that the building permit application had
been approved by the PAPB in 1986.
The applicant company further submitted that it
was inappropriate for the Government to consider that the permit had not been issued
because the bills had lapsed given that it was the authorities that had requested
payment of the bill in 1992. In this light, the Government’s argument regarding
prescription was also ill-conceived. Moreover, the same authorities issued
clearance upon payment being made by the applicant company. The sum collected was
not refunded to the applicant company, as would have been the case had it not
been due. Similarly, the applicant company submitted that the Government had erred
in considering that payment by A. in person had rendered the settlement faulty,
as the Civil Code (Articles 1148 and 1149) clearly considered that payments
made by third parties were possible and acceptable. Thus, all conditions had
been satisfied and the issuance of the permit was solely a formality dependant
on the authorities’ actions.
The applicant company further submitted that
the rejection had not been in accordance with the law as there had been no law
stipulating that payment had to be made within a certain time-limit. The fact
that no such legal provision was applicable at the relevant time was confirmed
by a MEPA official during the domestic proceedings. Moreover, the authorities had
last sent the bill in 1992, a few months before it was paid. The bill itself did
not mention that failure to pay within a specified time would entail the loss
of the right to obtain a permit. As to the regulations referred to by the
Government, the applicant company noted that they had not been applicable when the
bill had been paid (14 December 1992), since they did not enter into force until
31 December 1992, as admitted by the Government. No time-limit existed
before the enactment of such legislation. It followed that the authorities’
refusal to issue a permit was entirely arbitrary, and therefore the
interference suffered by the applicant company was neither in accordance with
the law nor proportionate.
The applicant company reiterated that it had
sought to pay the bill before 1992, but that information had not been available
because the file had been misplaced. The notice for consideration of the
application was sent to the PA on 26 January 1993. However, no decision was
made, in line with the authority’s reluctance to process the case, as was
evident from the minutes of a meeting held on 18 March 1993 (see paragraph 20
above). It was only in 1996 - four years after payment of the bill - that the
authority replied to the requests sent by the applicant company’s architects in
1995 and 1996.
The applicant company further pointed out that the
refusal to issue a building permit had not had the legitimate aim of
controlling the use of property in the general interest, as it had been based not
on planning considerations but simply on procedural requirements (which,
moreover, had not been in accordance with the law, as explained above).
It was also evident that the applicant company
was suffering an excessive individual burden in so far as third parties had
been allowed to develop property surrounding the one at issue, and thus the
control exercised by the State had not been applied equally to all.
2. The Government’s submissions
According to the Government, the building permit
at issue had never been granted, despite approval and clearance by the
authorities, which were not tantamount to the issuance of a permit. Therefore
the applicant company did not have a possession in the form of a legitimate
expectation. The Government submitted that the fact that the applicant company owned
the land did not mean that it was entitled to develop it, since development could
be restricted for planning and environmental reasons. Such limitations and
restrictions had to be considered as control of the use of property. The crux
of the matter, however, was that the applicant company had developed the land
at issue without a permit (as a result of which criminal proceedings had also
been instituted).
The Government submitted that in the time that
had elapsed between the bill being issued and its actual payment (five years), a
Planning Authority had been set up with the
function of issuing permits. Legal Notice 133 of 1992 provided for
the processing of applications that had been previously lodged with the
PAPB. Thus, in accordance with Regulation 4
(2) (b) of the Development Permission (Method of Application) Regulations,
which entered into force on 31 December 1992, the authority could not process
the application submitted by the applicant company because payment had not been
made within three weeks of the issuance of the bill - no other date was
specified in the payment notice. In their view, the voluntary inaction of the
applicant company for more than five years indicated that the building permit
application lodged in 1984 had been abandoned. Given that the applicant company
was a well-established developer, it must have been aware of the requirement to
pay fees. Thus, the refusal to grant the permit was made in accordance with the
provisions of Legal Notice 133 of 1992.
The Government further considered that, at the
time, the applicable period of prescription in respect of such dues was
arguably two years and certainly not more than five years (Article 2156 (g) of
the Civil Code). Thus, when payment was made the claim had become time-barred
and could not be pursued. The fact that the debtor chose to pay after the
prescriptive period had lapsed did not revive any alleged rights, which would
have been extinguished as a result of its inaction.
The Government also submitted that the bill had
been issued in the name of a third person. A. had had no connection with the
PAPB or the PA, since he had not informed the authorities that he had taken over
the company. In fact he did not inform the authorities until ten years later.
It followed that the applicant company had no locus standi to make
claims on the basis of a bill issued to C. and paid by A., “a director of the
applicant company in his own name”. While it was true that a debt could be
extinguished by a third party, the Government was of the view that in the
context of development permissions it was paramount that the payment was
effected by the owner, in order for the permit to be issued to the owner. A
third party should not have paid a bill personally without informing the
authorities that he or she was paying on behalf of a particular applicant, otherwise
a third party might have paid a bill in respect of a permit application made by
an owner who had lost interest in the development, without the knowledge of the
latter.
The Government submitted that the refusal followed
a change of legislation reflecting environmental concerns. The zones introduced
by the 2006 Local Plans - these could have been challenged before the PAB, but
the applicant company omitted to do so - were meant to conserve the rural
environment.
The Government submitted that when the applicant company had bought
the land, it had been referred to as a “field” in the deed of sale and thus
consisted of agricultural land. While it was true that it had the potential to
eventually acquire the status of a building site (in the absence of fixed
development zones), the land was never actually covered by building permits.
Thus, this had to be classified as a regular business risk. The Government
noted that the Court had not been very sympathetic towards persons who had
taken development risks (see Trimeg v. Malta, (dec.), no. 64792/10,
27 September 2011). It invited the Court to decide on those lines in the
present case, in which the applicant company could no longer develop the said
land given that it was currently situated outside a development zone.
The Government further asked the Court not to
take cognisance of the allegations of discrimination in so far as they had not
been raised before the domestic courts. In conclusion they considered that the
interference had been necessary to control the use of property in accordance
with the general interest, namely that of an environmental nature and, in the
circumstances of the present case, it had not imposed an excessive individual burden.
B. The Court’s assessment
1. Admissibility
77. The Court reiterates that the concept of “possessions” referred
to in the first part of Article 1 of Protocol No. 1 has an autonomous meaning
which is not limited to the ownership of physical goods and is independent from
the formal classification in domestic law: certain other rights and interests
constituting assets can also be regarded as “property rights”, and thus as
“possessions” for the purposes of this provision. In each case the issue that
needs to be examined is whether the circumstances of the case, considered as a
whole, conferred on the applicant company title to a substantive interest
protected by Article 1 of Protocol No. 1 (see Iatridis
v. Greece [GC], no. 31107/96, § 54, ECHR
1999-II, and Brosset-Triboulet and Others v.
France [GC], no. 34078/02, § 65, 29 March
2010). “Possessions” can be existing possessions or assets, including, in
certain well-defined situations, claims. For a claim to be capable of being
considered an “asset” falling within the scope of Article 1 of Protocol No. 1,
the claimant must establish that it has a sufficient basis in national law, for
example where there is settled case-law of the domestic courts confirming it.
Where that is the case, the concept of “legitimate expectation” can come into
play (see
Maurice v. France [GC], no. 11810/03, § 63, ECHR 2005-IX, and Kopecký v. Slovakia
[GC], no. 44912/98, §§ 35 and 48-52, ECHR 2004-IX).
The Court notes that, while a permit
constitutes a “possession” within the meaning of Article 1 of Protocol No. 1 to
the Convention (see Mullai
and Others v. Albania, no. 9074/07, § 99, 23 March 2010), in
the present case no such permit was actually issued. Nevertheless, the Court
must consider whether a legitimate expectation to obtain the relevant permit arose
in the circumstances of the present case.
The Court observes that, in this respect, no reference
has been made by the Government or the domestic courts to the provisions of the
national law relied upon in their various assessments by which they concluded
that the pre-approval of the application by the PAPB did not entail an
obligation on the authority to issue a permit upon the payment of the road contribution
(see, conversely, Hellborg v. Sweden, no. 47473/99, § 50,
28 February 2006, where, following a tentative approval, the authorities
had an obligation to issue a building permit if an application was made within
two years of the approval). Nevertheless, the applicant company has failed to
satisfy the Court that the situation was otherwise, either in practice or in
law. It follows that the Court has no reason to doubt the domestic court’s findings
in this respect (see paragraphs 27, 32, and 34 above) and considers that the
applicant company did not have a “possession” in the form of a legitimate expectation
to obtain the said permit (see, conversely, Pine Valley Developments
Ltd and Others, cited above, § 51, where the
permission granted and duly recorded in a public register could not be reopened
by the planning authority).
Thus, this aspect of the complaint is therefore incompatible ratione
materiae with the provisions of the Convention
and the Protocols thereto, within the meaning of Article 35 § 3, and must be
rejected in accordance with Article 35 § 4.
The Court further notes, that the applicant
company was the co-owner and later the sole owner of the land that is the
subject of the present case and which undoubtedly constitutes a possession for
the purposes of the Convention. The Court reiterates that the refusal to issue
a building permit must be regarded as an interference with the applicant
company’s right to peaceful enjoyment of its property, as guaranteed by Article
1 of Protocol No. 1 (see, inter alia, Borg
v. Malta, Commission decision, 18 October 1995; Allan Jacobsson v. Sweden (no. 1), 25
October 1989, Series A no. 163, § 54; and Kugler v. Austria,
(dec.), no. 65631/01,
27 November 2008). It follows that Article 1 of Protocol No.1
is applicable.
The Court notes that this aspect of the
complaint is not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
2. Merits
(a) General principles
. The
Court reiterates that Article 1 of Protocol No. 1 comprises three distinct
rules. The first rule, set out in the first sentence of the first paragraph, is
of a general nature and enunciates the principle of the peaceful enjoyment of
property. The second rule, contained in the second sentence of the same
paragraph, covers deprivation of possessions and makes it subject to certain
conditions. The third rule, stated in the second paragraph, recognises that
Contracting States are entitled, amongst other things, to control the use of
property in accordance with the general interest. The three rules are not
distinct in the sense of being unconnected: the second and third rules are
concerned with particular instances of interference with the right to the
peaceful enjoyment of property. They should therefore be construed in the light
of the general principle enunciated in the first rule (see, for example, Bruncrona v. Finland, no.
41673/98, § 65, 16 November 2004). They must comply with the principle of
lawfulness and pursue a legitimate aim by means reasonably proportionate to the
aim sought to be realised (see, for example, Beyeler
v. Italy [GC], no. 33202/96, §§ 108-14, ECHR
2000-I, and J.A. PYE (Oxford) Ltd v. the United
Kingdom, no. 44302/02, § 42, 15 November
2005). The requisite balance will not be struck
where the person concerned bears an individual and excessive burden (see Brumărescu v. Romania [GC], no. 28342/95, § 78, ECHR 1999-VII). The Court also
reiterates that in the area of land development and town planning, the Contracting
States should enjoy a wide margin of appreciation in order to implement their
town and country planning policies. Nevertheless, in the exercise of its power
of review the Court must determine whether the requisite balance was maintained
in a manner consonant with the applicant’s right of property (see Abdilla v. Malta (dec.),
no 38244/03, 3 November 2005, and J. Lautier Company Limited v. Malta
(dec.) no. 37448/06, 2 December 2008).
(b) Application to the present case
The Court notes that the complaint before it is
limited to the refusal to issue a permit. Thus the
impugned measure in this case must be considered as a control of the use of
property (see paragraph 81 above), to be considered under the third rule, i.e.
under the second paragraph of Article 1 of Protocol No. 1 (see Allan Jacobsson (no. 1),
cited above, § 54). The Court must therefore consider whether the authorities’
refusal to issue a building permit was a lawful measure “necessary to control
the use of property in accordance with the general interest”. The task of the Court
in this context is to examine the lawfulness, purpose and proportionality of
the decisions taken by the domestic authorities (see, for example, Borg,
cited above).
The Court notes that despite a remark by the
Government to that effect (see paragraph 71 in fine, above) and a
Constitutional Court finding that the permit had been rejected on the basis
that illegal construction had been undertaken (see paragraph 34 above), the DCC
decision gave as the reason for the refusal the failed payment of the relevant
bill. The same was contended by the Government before this Court. In particular,
the Government submitted that the decision to reject the permit on the basis
that the deadline for paying the bill had lapsed was in accordance with the
law, namely Regulation 4 of the Development Permission (Method of Application)
Regulations 1992, which entered into force on 31 December 1992 by means of
Legal Notice 133.
While it is true that on the date of the
issuance and payment of the fresh bill the regulation had only been enacted and
was not yet in force, the Court reiterates that civil
legislation which has a retroactive effect is not expressly prohibited by the
Convention, and in certain circumstances could be justified (see, mutatis mutandis,
application no. 8531/79, Commission decision of 10 March 1981, Decisions and
Reports (DR) 23, and Kechko v. Ukraine, no. 63134/00, § 27,
8 November 2005). Moreover, the
Convention contains no provision ruling out the possibility of relying on facts
preceding enactment of the law (see Herri Batasuna and Batasuna
v. Spain, nos. 25803/04 and 25817/04, § 59, ECHR 2009, in relation to
the assessment of the lawfulness of a measure under Article 11). In the present case the 1992 Act explicitly contained
retroactive provisions (see, conversely, Kechko, cited above, §
27) which were both accessible and foreseeable to the
applicant company, even before he actually received and paid the bill, the legislation
having been enacted in January 1992 and being therefore published in the
Government Gazette (see conversely, mutatis mutandis, Lykourezos
v. Greece, no. 33554/03, § 55, ECHR 2006-VIII, in the context of a
complaint under Article 3 of Protocol No. 1). It follows
that it cannot be said that the DCC’s decision was not in accordance with the
law.
The Court observes that it was only in 2006,
twenty years after the lodging of the application, that the land was designated
as undevelopable in view of environmental concerns. However, the Court is ready
to accept that in 1996, the legitimate aim behind the rejection of the permit
was to ensure coherent decision-making in accordance with the rule of law in
the ambit of town and country planning, which is in the
general interest.
As to the proportionality of the measure, the
Court notes that there was no impediment to issuing the permit when it was originally
applied for, and from the initial approvals it also appears that the prospects of
such a permit being granted were good. However, the Court notes that the
applicant company failed to take the steps required, in a timely manner, to
safeguard its interest and conclude the matter rapidly. Most importantly, when
the applicant company became the owner of the entire plot of land, it omitted to
inform the authorities of this until 1996 - more than a decade later. Making
the relevant changes to the application would have allowed it to receive the
relevant bill first issued in 1987. While the Court accepts that in 1987 the
applicant company enquired in vain as to the state of its application, it took
no further action until 1992, when A. paid the bill after it had been passed on
to him by C. Following payment, the applicant company did not enquire about the
permit until 1995. When it enquired again in 1996, it failed to contest the
rejection, opting to engage in further discussions. It undertook legal action
only when faced with a stop notice for illegal construction, in 1999. The Court
considers that given the applicant company’s inactivity and lack of diligence
in pursuing its building permit application, it was not disproportionate for
the authorities to reject the said application (see, mutatis mutandis, Bellizzi v. Malta, no. 46575/09, § 73, 21 June
2011). Neither is the Court convinced that the applicant company
suffered an excessive individual burden as a result. Given the specific
circumstances of the case, the fact that other persons had been allowed to
build in the area at the relevant time cannot be considered of relevance.
It follows, that there has not been a violation
of Article 1 of Protocol No. 1 to the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTION
The applicant company further complained that it
was being discriminated against in violation of Article 14, since surrounding
and adjacent property had benefited from development permits.
The Court reiterates that
according to Article 35 § 1 of the Convention, it may only deal with an issue
after all domestic remedies have been exhausted. The purpose of Article 35 is
to afford the Contracting States the opportunity of preventing or putting right
the violations alleged against them before those allegations are submitted to
the Court. Thus, the complaint submitted to the Court must first have been made
to the appropriate national courts, at least in substance, in accordance with
the formal requirements of domestic law and within the prescribed time-limits
(see Bezzina Wettinger and Others v. Malta, no. 15091/06, § 58, 8 April 2008).
The Court notes that although the applicant company
tried to submit evidence before the domestic courts in relation to this
complaint, the Constitutional Court rejected the request on 15 March 2007 since
the appeal application had not made reference to any such complaint (see
paragraph 37 above).
Having examined the case-file the Court finds no
reason to hold otherwise. It follows that the applicant company did not put forward
this complaint before the domestic authorities in
accordance with the formal requirements of domestic law and it is
therefore inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
In so far as it transpires that the applicant
company complained about the length of the proceedings, the Government submitted
that Article 6 did not apply in respect of the complaint regarding the
delay in granting a building permit, since the proceedings concerned the
processing of an application and not a determination of a dispute before a
court.
The Court reiterates that for Article 6 § 1 in
its “civil” limb to be applicable, there must be a dispute (“contestation” in
the French text) over a “civil right” which can be said, at least on arguable
grounds, to be recognised under domestic law, irrespective of whether it is
also protected under the Convention. The dispute must be genuine and serious;
it may relate not only to the actual existence of a right but also to its scope
and the manner of its exercise; and, lastly, the result of the proceedings must
be directly decisive for the right in question, mere tenuous connections or
remote consequences not being sufficient to bring Article 6 § 1 into play (see,
inter alia, Mennitto v. Italy [GC], no. 33804/96, § 23, ECHR 2000
X, and Micallef v. Malta [GC], no. 17056/06, § 74, ECHR 2009).
The Court observes that under domestic law, in
order to acquire a permit, a person must first lodge an application with the
relevant authority. The decision of that authority is therefore a necessary
preliminary step for bringing the case before a tribunal. The Court reiterates
that, in cases such as the one at issue, in which an administrative authority’s
decision is a necessary preliminary step for bringing the case before a
tribunal, the relevant period for the length of proceedings does not start
running when the request is lodged but only once a “dispute” has arisen. Thus,
the Court considers that, on the facts of the case, it was only following the
decision of 7 October 1996 dismissing the applicant company’s request for a
building permit that a “dispute” within the meaning of Article 6 § 1 could
arise, (see mutatis mutandis, König, cited above, § 98; Morscher
v. Austria, no. 54039/00, § 38, 5 February 2004; and Gavrielides v.
Cyprus, no. 15940/02, § 38, 1 June 2006).
It follows that the initial proceedings before
the relevant authority to obtain a building permit did not concern a dispute
(“contestation” in the French text) for the purposes of Article 6.
Accordingly, the provision is not applicable to
this part of the complaint, which is therefore incompatible ratione materiae
with the provisions of the Convention and the Protocols thereto within the
meaning of Article 35 § 3 and must be rejected in accordance with Article 35 §
4.
Lastly, the applicant company appeared to
complain, without giving any details, under Article 13 of the Convention.
The Court notes that no explanation has been
given in relation to this complaint, it being mentioned solely in the statement
of the object of the application and not under the statement of the alleged
violations where the other complaints were argued. Thus, even assuming that the
complaint is not unsubstantiated and that it refers to the Constitutional Court’s
finding, it is reiterated that the effectiveness of a
remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for
the applicant (see Sürmeli v. Germany [GC], no. 75529/01, § 98, ECHR 2006-VII). The mere fact
that an applicant’s claim fails is not in itself sufficient to render the
remedy ineffective (see Amann v. Switzerland, [GC], no. 27798/95, §§ 88-89, ECHR 2002-II). There is
nothing to indicate that had the Constitutional Court found in favour of the
applicant company, it would not have provided adequate redress (see, mutatis
mutandis, Gera de Petri Testaferrata Bonici Ghaxaq v.
Malta, (merits) no. 26771/07,
§ 70, 5 April 2011).
. It
follows that this complaint is manifestly
ill-founded and must be rejected in accordance
with Article 35 §§ 3 and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint under Article 6 § 1 concerning access to court to contest the refusal of
a building permit and the complaint under Article 1 of Protocol No. 1
concerning the interference with the applicant company’s property rights admissible
and the remainder of the application inadmissible;
2. Holds that there has been no violation of
Article 6 § 1 of the Convention;
3. Holds that there has been no violation of
Article 1 of Protocol No. 1 to the Convention;
Done in English, and notified in writing on 23 July 2013, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ineta
Ziemele
Deputy Registrar President
