FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 27023/03
by John SAMMUT and VISA INVESTMENTS LIMITED
against Malta
The European Court of Human Rights (Fourth Section), sitting on 16 October 2007 as a Chamber composed of:
MrJ. Casadevall, President,
MrG. Bonello,
MrK. Traja,
MrS. Pavlovschi,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 19 August 2003,
Having regard to the admissibility decision of 28 June 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the Court’s request to submit complementary observations on admissibility and to the replies submitted by the parties,
Having deliberated, decides as follows:
THE FACTS
1. The first applicant, Mr John Sammut, is a Maltese national, who was born in 1948 and lives in Sliema (Malta). He is the director of the second applicant, Visa Investments Limited, a limited liability company located in Sliema. The applicants were represented before the Court by Mr I. Refalo and Mrs T. Cachia, both lawyers practising in Valletta (Malta). The respondent Government were represented by their Agent, Mr S. Camilleri, Attorney General.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The issuing of the building permits and the change in the building conditions
3. The second applicant is the owner of a real estate in Sliema. In his capacity as company director the first applicant was given authority to obtain from the administration, the authorisations needed for carrying out building work.
4. On 6 December 1990 the Planning Area Permits Board (the “PAPB”) issued a permit in which it authorised the first applicant “to demolish the existing buildings and to re-erect ground floor and mezzanine shopping arcades with overlying flats and garages at basement level ... Height of building should not exceed eight floors plus underlying basement”.
5. According to the applicants this permit and the plans attached approved one basement car park, a ground floor and mezzanine shopping arcade, and seven levels of flats. According to the Government this permit and the plans attached approved “one basement car park, a ground floor and mezzanine shopping arcade, and six levels of flats”. The Government noted that in the approved plans the seventh level was deleted by shading it in yellow. The parties appear to have become aware of these diverging views only during the proceedings before this Court.
6. This permit was valid for two years, and the work as the first applicant believed it to have been authorised was carried out within that period.
7. On 28 July 1992 a new permit was issued, since an application had been made for a further permit connected to the same development but from a different side of the site (Fawwara Lane). In so far as relevant, the first applicant was authorised “to demolish the existing building and to re-erect three basement/garages for private cars, plus ground floor shopping arcades (double height) ... with overlying flats (six floors) including washrooms ...”.
8. The applicants and the Government agreed that the two permit applications in 1990 and 1992 were substantially identical, except for the development on Fawwara Lane, which was not at issue. Both applications were for a development of a ground floor of a height of two normal floors and seven upper floors of normal height, therefore a total height of nine normal floors.
9. In respect of the permit issued on 28 July 1992, the Government confirmed the wording quoted above and added that in one of the drawings constituting the plans, the seventh floor had been erroneously reinserted while the applicants submitted that the ambiguous deletion of part of the mezzanine floor had been eliminated, but that the sixth floor had been deleted.
10. The applicants alleged that they had developed the site according to the permits and according to the plans approved by the PAPB. The Government contested this on the basis of their exposition of the facts.
11. A few days later, on 14 August 1992, the PAPB issued of its own motion another permit in the name of the first applicant to remedy the situation created by the permit of 28 July 1992. In so far as relevant, this permit of 14 August 1992 authorised the first applicant to develop the site in question in a different manner in particular “to demolish existing building and to re-erect basement garages for private cars, plus three floors shopping arcade (including a ground floor of double height) ... with overlying flats (five floors) and washrooms”. It was also stated that the plans which had been issued with the permit of 28 July 1992 were being replaced.
12. According to the Government, the issue of the permit of 14 August 1992 was meant to correct an oversight which had occurred during the drafting of the permit of 28 July 1992. On that occasion the PAPB had deleted one of the floors, marked as a mezzanine floor, from the plans submitted by the applicants. However, because of a clerical error, this deletion was not reflected in the permit of 28 July 1992. The applicants submitted that it was not possible for them to know whether the authorisation to build a mezzanine floor was due, as the Government stated, to an “oversight”. They later stated that according to them the authorisation to construct apartments on the sixth floor and to build a mezzanine floor had been revoked.
13. The change in the building specifications was not notified to the applicants, who were not informed that the PAPB was reconsidering the permits already issued to them. However, the permit of 14 August 1992 was sent to the applicants’ architect, who on 18 August 1992 requested the Chairman of the PAPB to reconsider the permit in issue.
14. On 29 October 1993 the Malta Environment and Planning Authority (the “MEPA”) replied that the Development Control Commission (the “DCC”) had decided that the permit of 14 August 1992 should stand as issued.
15. The applicants submitted that it was unclear to them and to their architect that the request of 18 August 1992 was being considered by the DCC, which never invited them to present oral or written submissions.
2. The enforcement notices
16. On 28 January 1994, when over a year had passed since the DCC’s decision of 1993 holding that the permit of 18 August 1992 should stand as issued, the MEPA issued an enforcement notice (no. 62/94). It observed that the “seventh” floor and the washrooms on the top floor were not covered by a development permit. The applicants were ordered to demolish those parts of the development already completed which were not authorised by the permit of 14 August 1992.
17. In February 1994 the first applicant appealed against this notice before the Planning Appeals Board, which rejected his claim in a decision of 30 June 1995. The Board held that the only valid building permit was that issued on 14 August 1992 and that the plans submitted by the applicants and the permits previously granted on the basis of these plans were not in conformity with the law.
18. The first applicant referred his case to the Court of Appeal. He argued that the original permit had never been validly revoked. However, on 3 June 1996 this appeal was adjourned sine die at the first applicant’s request by reason of the fact that a constitutional claim, having a bearing on the proceedings before the Court of Appeal, had been filed before the Civil Court (First Hall). According to the information provided by the Government in October 2004, at that date the proceedings before the Court of Appeal had not been reactivated.
19. In the meantime, on 3 April 1996, the MEPA had issued against the applicants another enforcement notice (no. 556/96), in relation to an illegal development of the facade of the building, which the applicants did not appeal.
20. The applicants asserted that on the basis of the permits of 6 December 1990 and of 28 July 1992 they had undertaken several obligations vis-à-vis third parties, including leases and sales, and had provided funding for the planned construction work. Due to the partial revocation of these permits, the applicants were unable to honour their obligations, thus suffering a significant financial loss.
3. The first applicant’s constitutional complaint
21. On 3 June 1996 the first applicant lodged a constitutional complaint with the Civil Court (First Hall). He alleged that the revocation of the permit of 28 July 1992 by means of the issuing of the new permit of 14 August 1992 had violated his right to peaceful enjoyment of possessions, guaranteed by Article 1 of Protocol No. 1. He also requested that the permit of 14 August 1992 be declared null and void. He further alleged that he had been denied a fair hearing since the PAPB had failed to notify him of the changes in the permit and he had had no opportunity to make any submissions before the DCC’s decision.
22. In a judgment of 12 December 1996 the Civil Court rejected the complaint on procedural grounds. It observed that the first applicant had brought his claim against the MEPA; however, this body was not a successor of the PAPB which had issued the permit of 14 August 1992.
23. The first applicant appealed to the Constitutional Court.
24. In a judgment of 30 April 1998 the Constitutional Court observed that the aim of constitutional proceedings was to afford the highest judicial protection against a violation of fundamental rights, with the least formality and the maximum efficiency. Citizens were not obliged to indicate with certainty those responsible for the violation. Therefore, nothing prevented the Civil Court from precisely identifying those who were responsible for the violation alleged and from authorising the first applicant to bring an action against them. The Constitutional Court therefore sent the file back to the Civil Court, ordering that the case be continued according to law.
25. In a judgment of 4 October 2000 the Civil Court refused to exercise its constitutional jurisdiction on the ground that the first applicant had used and was using ordinary remedies in order to protect his fundamental rights. The Civil Court observed that the first applicant had requested the MEPA to reconsider his case. There was still a possibility that this request would be accepted and an appeal was available to the first applicant in case of refusal. Moreover, the first applicant had appealed to the Planning Appeals Board and the Court of Appeal.
26. On 12 October 2000 the first applicant appealed to the Constitutional Court.
27. In a judgment of 27 February 2003 the Constitutional Court rejected the first applicant’s appeal and confirmed the Civil Court’s judgment. It observed that in the interests of the administration of justice, the constitutional courts should not be burdened with cases which might be dealt with by other courts or for which there were other remedies available under the domestic legislation. The first applicant’s claim was that by reason of the issuing of the permit of 14 August 1992 he was obliged to change what he had already developed or had planned to develop according to the previous permits. Therefore, a request for reconsideration of the case and the possibility of being granted a new permit were effective remedies available to the first applicant at the time of the introduction of his constitutional claim before the Civil Court. In respect of his complaint regarding a fair hearing, it held that his complaint was against the DCC and not the PAPB; thus, the remedy he was seeking before the Constitutional Court was different from that sought before the Court of Appeal, and therefore the applicant was still making use of ordinary remedies and the Court could not exercise its constitutional jurisdiction.
4. The granting of a new building permit
28. Meanwhile, on 1 April 1996, the first applicant had submitted a “full development application” to the MEPA, requesting the retention of the mezzanine floor and to be authorised to change the top floor from washrooms to penthouses. This request was refused on 14 August 1998.
29. In a letter of 21 August 1998 the first applicant asked for a reconsideration of his request. His claim was upheld and on 21 July 2001 a new building permit was issued.
B. Relevant domestic law and practice
1. The building permits regulations
30. Until 1 January 1993 building development permits were regulated by Part I of the Code of Police Laws. Section 16(1) of that Code provided:
“The Minister responsible for public works may, prior to the preparation, publication or approval of a scheme, order by notice in the Government Gazette the whole or any part of Malta to be a planning area; and from the date of any such order no person shall lay out, construct or close any street, or erect any building or increase the height of or otherwise modify any existing building, or change the use of any land or building in any part of such area (whether or not an approved scheme exists in respect thereof) without a permit from the Minister responsible for public works who may, in his discretion, refuse the grant of a permit or, in granting it, impose such conditions as in his discretion he may deem proper.”
31. The Minister responsible for public works could delegate all or any of his powers to a body known as the Planning Area Permits Board (the “PAPB”). However, this body was abolished by the 1992 Development Planning Act (which entered into force on 1 January 1993), and a new autonomous public authority with the power to issue building permits, the Malta Environment and Planning Authority (the “MEPA”), was set up. According to the Constitutional Court (see judgment of 30 April 1998 in the case of John Sammut v. Planning Authority) the MEPA “enjoyed original powers even in relation to a development which occurred before the coming into force of Act I of 1992, and not continuing powers as a successor of the PAPB”.
2. The remedies available against a building permit
32. Section 37 §§ (1) and (3) of the Development Planning Act provide:
“(1) If an applicant considers that conditions imposed upon a development permission, or a refusal of such a permission, is unreasonable he may, without prejudice to his right of appeal, either request the Authority or the Commission, as the case may be, to reconsider its decision or he may lodge an appeal with the Appeals Board ... A request for reconsideration shall not be made currently with an appeal. A request for reconsideration and an appeal under this sub-section, as the case may be, shall be made within thirty days of receipt of the decision of the Authority or of the Commission, as the case may be. Where a request for reconsideration has been made, an appeal may be made to the Appeals Board within thirty days of receipt of the decision taken in the reconsideration.
...
(3) During the reconsideration stage, the Authority or the Commission, as the case may be, may request the applicant to file fresh plans, in which case the Authority or the Commission, as the case may be, shall give reasons for such a request provided that the substance of the development shall not change and any person who has made written objections to the development in terms of Article 32(5) shall be informed that such fresh plans have been so filed and shall also be invited to be present at the Authority’s or the Commission’s sitting, as the case may be, when such application shall be discussed. Both the applicant and the objectors, if any, shall be informed of the date and time of the meeting and, if present, may address the Authority or the Commission, as the case may be, with regard to the planning matters concerning the said application.”
3. Liability for tort and quasi tort
33. The relevant sections of the Maltese Civil Code read as follows:
Section 1030
“Any person who makes use, within the proper limits, of a right competent to him, shall not be liable for any damage which may result therefrom.
Section 1031
Every person, however, shall be liable for the damage which occurs through his fault.
Section 1032
(1) A person shall be deemed to be in fault if, in his own acts, he does not use the prudence, diligence, and attention of a bonus paterfamilias.
(2) No person shall, in the absence of an express provision of the law, be liable for any damage caused by want of prudence, diligence, or attention in a higher degree.
Section 1033
Any person who, with or without intent to injure, voluntarily or through negligence, imprudence, or want of attention, is guilty of any act or omission constituting a breach of the duty imposed by law, shall be liable for any damage resulting therefrom.”
COMPLAINTS
34. The applicants complained under Article 1 of Protocol No. 1 about the issuing of the permit of 14 August 1992 and under Article 6 of the Convention that the proceedings concerning the issuing of the permit of 14 August 1992 and the adoption of the DCC’s decision of 29 October 1993 had been unfair.
THE LAW
I. THE COMPLAINT UNDER ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
35. The applicants submitted that the permit of 14 August 1992 violated their right to the peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1. This provision 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.”
A. The Government’s objection that the applicants were not victims
36. In their preliminary observations the Government argued that the applicants could not claim to be “victims”, within the meaning of Article 34 of the Convention, of the facts complained of.
37. The applicants challenged this argument.
38. In this connection the Court confirms its admissibility decision of 28 June 2005 declaring that the applicants may still claim to be “victims” of a violation of Article 1 of Protocol No. 1.The Government’s objection of non-exhaustion of domestic remedies
1. The arguments of the parties
(a) The Government
39. The Government submitted that domestic remedies had not been exhausted. They observed that the applicants repeatedly undertook a course of action to obtain a remedy and then failed to pursue it according to the procedure prescribed by law.
40. In particular, in relation to the issuing of the permit of 14 August 1992, the applicants could have had recourse to judicial review against the PAPB and against the Minister responsible for public works. The effectiveness of this remedy had been affirmed by the domestic courts in a number of decisions (the Government cited, inter alia, Reno Alamango v. Mary Rose Ciantar, Court of Appeal’s judgment of 29 May 1991; Teddy Rapa v. Chairman Planning Authority, Constitutional Court’s judgment of 31 May 2000; Emanuel and Rita Bezzina v. Chairman Planning Authority, Constitutional Court’s judgment of 18 June 2003) and especially in the case of Mary Grech v. Minister of Public Works (Court of Appeal’s judgment of 29 January 1993), which, like the present case, concerned a building permit originally granted and subsequently revoked. In the Mary Grech case, judicial review had been successfully requested and the PAPB’s decision had been declared null and void.
41. The Government pointed out that the applicants, relying on section 37 of the Development Planning Act (see paragraph 32 above), could also have asked the DCC to reconsider its decision of 29 October 1993. According to the Government, a request for reconsideration was a fully effective remedy, as was shown by a number of decisions of the DCC, by which a permit previously refused was eventually granted (they cited, inter alia, the decisions of 1 December 1995 and 12 May 1995 in the cases of Rita Farrugia and Louise Sultana).
42. Furthermore, the applicants could have challenged the decision of 29 October 1993 before the Planning Appeals Board, which had the power to confirm, revoke or alter the impugned decision (see, inter alia, Ronald Agius v. DCC and Reno Attard v. DCC, Planning Appeals Board’s decisions of 29 October 1994 and 23 May 1995). Before this body they would have been given a full hearing and the possibility of making submissions and producing evidence. The decision of the Planning Appeals Board could have been appealed on points of law before the Court of Appeal. Any complaint about the lack of a fair hearing could have been raised at this stage and the Court of Appeal would have annulled the proceedings had it held such complaint to be well-founded. The Government observed that the Court of Appeal had indeed annulled, on several occasions, decisions of the Planning Appeals Board, thus showing the effectiveness of the remedy (they cited, inter alia, the Court of Appeal’s judgment of 26 April 1996 in the case of Fredrick Mifsud Bonnici v. Joseph Kenely).
43. The Government pointed out that the applicants had not mentioned enforcement notice no. 62/94 of 28 January 1994 in their original application to the Court or in the proceedings before the Constitutional Court. Before the highest jurisdiction in Malta they had made no reference to enforcement notice no. 556/96 of 3 April 1996. Even if this latter document was mentioned in the application to the Court, no claim under the Convention and/or the Constitution of Malta was made with reference to the two enforcement notices. Moreover, the proceedings instituted before the Court of Appeal to challenge enforcement notice no. 62/94 had been adjourned sine die and had not been re-activated. The Government submitted that since the applicants had failed to exhaust perfectly effective domestic remedies they were therefore estopped from raising any claim related to the enforcement notices.
44. In their complementary observations the Government pointed out that the grievances complained of by the applicant, namely (a) the wrongful withdrawal of the permits which had been caused by the issue of the permit of 14 August 1992 and (b) the ensuing damage, could have been remedied by an action in tort and an action by way of judicial review followed by an action for the assessment and award of damages suffered. However, the applicants desisted from having recourse to the judicial remedies at their disposal, limiting themselves to applying to the administrative planning authorities which could only revoke the decision complained of but not grant compensation.
45. According to Maltese law, public authorities are subject to the ordinary law of the land when it comes to responsibility for damages in tort; in fact the word “person” in all relevant law provisions (see paragraph 33 above) includes legal persons. Domestic case-law has determined on a number of occasions that the Government, through their representatives, are liable for the payment of damages and has ordered the Government to make such payments. The Government referred to, inter alia, Giuseppe Xuereb v. Perit Carmelo Micallef, (judgment of the Civil Court (First Hall) 3 October 1953); Martin Bonello Cole v Commissioner of Police, (judgment of the Civil Court (First Hall) 3 October 2003); Neil Cassar v Hon. Prim Ministru, (judgment of the Civil Court, (First Hall), 17 March 2004); and John Lowell and Maurice Portelli v. Onor Dottor Carmelo Caruana, (judgment of the Civil Court (First Hall), 14 August 1972). In the last mentioned case dealing with a complaint similar to the one at issue, where a building permit already issued had been revoked - the court concluded that such a revocation exceeded the executive powers of the PAPB, that such acts were illegal and therefore where appropriate could give rise to the payment of damages which the Government were subsequently ordered to pay.
46. In respect of judicial review the Government reiterated their comments in their original observations (see paragraph 40 above) and added that judicial review could be an end in itself but if successful could also constitute the basis for a claim for compensation for damage suffered if it was proved that the administrative action had been wrongful or unlawful, as claimed in the present case.
(b) The applicants
47. The applicants disputed the Government’s arguments and considered that they did not have at their disposal any effective remedy which they had failed to exhaust.
48. Challenging the permit of 14 August 1992 by way of judicial review could only have led to a declaration of nullity and not to an order to re-instate a permit which had been wrongly revoked. In the Mary Grech case, the domestic court had confined itself to a declaration that the revocation of the permit was illegal and remitted to the planning authorities the question whether the permit should be issued or not. It also refused to grant any compensation for the damage alleged by Ms Grech. It was only a number of years after this decision that the planning authorities had seen fit to reinstate Ms Grech in the enjoyment of the original permit. The applicants therefore alleged that judicial review would have left their grievances unresolved. Moreover, after the entry into force, on 1 January 1993, of the 1992 Development Planning Act, there was no further possibility of judicial review. Domestic courts had repeatedly held that judicial review was not available to persons whose complaint was against an administrative act that related to planning, since the planning law existed and was a special law that established specific procedures for such review (the applicants cited, inter alia, the Court of Appeal judgments, Pietru Pawl Borg v Planning Authority, 8 May 2003, which held that the court did not have competence to review matters which were covered by other established specific laws, thus revoking the first-instance judgment which had upheld the Civil Court’s jurisdiction, after confirming that Maltese case-law on the matter was contradictory, John Cauchi v Chairman of Planning Authority, 5 October 2001; and James Callejja u Carmelo Borg v. Planning Authority, 7 March 2002).
49. The applicants also asserted that they did not have the possibility of asking for reconsideration of the MEPA’s decision of 29 October 1993 or of lodging an appeal against it. They observed that this decision had never been notified to them. The MEPA confined itself to sending a letter to the applicants’ architect, informing him that the permit of 14 August 1992 should stand as issued. This letter did not take any position on the question of the validity of the previous permits and did not mention any right of appeal or of asking for reconsideration. According to the applicants, this showed that the MEPA itself did not consider the letter in issue as a decision which could have been challenged.
50. The fact that in other cases an appeal or a request for reconsideration had been successful did not mean that the applicants had a real opportunity of appealing against the decision to revoke the original building permit. This point had been decided by the PAPB and not by the MEPA.
51. The applicants observed that they could not pursue their appeal against enforcement notice no. 62/94. The Court of Appeal did not have jurisdiction over the matter, as the impugned act did not contain any error of law. As it was quite obvious that the Court of Appeal could not give them any remedy, they were forced to try a constitutional complaint based on the violation of their fundamental rights, first before the Civil Court (First Hall) and then before the Constitutional Court. The latter’s judgment was the final decision by which all available domestic remedies were exhausted.
52. The applicants considered that they were in no manner estopped from making reference to enforcement notice no. 62/94. In the course of the proceedings concerning the challenging of this act, they had raised the issue of the validity of the first building permit, but the Planning Appeals Board had rejected their arguments.
53. In their complementary observations the applicants submitted that their complaint was that the wrongful administrative action had created a violation of their property rights. Thus, the main remedy for such a violation consisted in the review and declaration of nullity with consequent revocation of the administrative act in question; anything falling short of this would not have redressed the situation. Their claim before the domestic courts had been aimed at seeking the nullity of the permit and the consequent stop and enforcement notice (no. 556/96) as a consequence of which they had suffered a violation of their right to property. As shown by the facts they had made use of the remedies that were available to them. According to the procedure established in section 15 of the Development Planning Act, they had initially sought a reconsideration of the decision and had also lodged an appeal with the Planning Appeals Board. They had subsequently appealed to the Court of Appeal. According to law, it was solely these bodies which had competence and jurisdiction to review the validity of the acts contested. They had further submitted their complaint to the constitutional courts, as a result of which the proceedings before the Court of Appeal had been suspended sine die awaiting the outcome of the constitutional proceedings, as was the practice in Malta. The latter proceedings were the final remedy expected to give the individual adequate and effective redress for the prejudice suffered.
54. The applicants maintained that an action in tort was available to persons who had suffered civil damages and did not address their specific issue. Being given monetary compensation through an action in tort while having to accept the issue of the permit and subsequent enforcement notice (which could not have been decided upon by a court in the context of an action in tort) would not have redressed the violation complained of. It would not have revoked the contested acts and would not have upheld a violation of the fundamental rights of the individual. Thus, though the remedy was available it would not have given the redress sought by the applicants.
55. The applicants submitted that their complaint related both to the authorities’ abusive behaviour and to the ensuing damage. While agreeing that the public authorities were subject to the ordinary law of the land when it came to responsibility in tort, the issue in the present case was not whether the authority was responsible for damages under civil law but whether it had acted wrongfully. Where damage ensued from such a wrongful act the correct procedure was not one of tort but one of judicial review or a constitutional case. Furthermore, the case-law cited by the Government referred to circumstances of a civil-law nature such as construction of roads or provision of medical services. In respect of the case of John Lowell and Maurice Portelli v. Onor Dottor Carmelo Caruana, the applicants noted that in that case the plaintiffs had not sought a review of the administrative act but only financial compensation for damage. Moreover, the case had been decided in 1972 by the Civil Court (First Hall) and not the Court of Appeal, at a time when a different planning law had applied.
2. The Court’s assessment
56. Under Article 35 § 4 of the Convention, the Court may reject an application at any stage of the proceedings. This provision allows the Court, even during the examination at the merits stage, and subject to compliance with Rule 55 of the Rules of Court, to review a decision declaring an application admissible, if it is of the view that it should have been considered inadmissible for any of the reasons enumerated in paragraphs 1 to 3 of the same Article (see, for example, Medeanu v. Romania (dec.), no. 29958/96, 8 April 2003).
57. The Court notes at the outset that, in their further observations on the merits, after the complaint was declared admissible, the Government did not insist on their non-exhaustion plea and did not provide any further detail on this matter (see, mutatis mutandis and a contrario, De Vita, De Cicco, Trimigliozzi, Mare and Solla v. Italy (dec.), nos. 44473/98, 44474/98, 44475/98, 44476/98 and 44477/98, 10 September 2002). However, the Court considers that the raising of the non-exhaustion plea before the Court during the admissibility stage suffices to satisfy the requirements of Article 35 § 4 in so far as they are conditioned by Rule 55. Consequently, nothing prevents the Court from re-examining the non-exhaustion issue of its own motion (see, mutatis mutandis and in relation to an objection of lack of victim status, Mihailescu v. Romania (dec.), 32913/96, 22 June 2004) at this stage of the proceedings and after it has requested and received the parties’ complementary observations on the matter.
58. The Court reiterates that it is primarily a supervisory body and subsidiary to the national systems safeguarding human rights. The rule of exhaustion of domestic remedies and the requirement under Article 13 that States provide effective remedies for arguable breaches of guaranteed rights and freedoms, reflect the principle that it is first and foremost the role of the Contracting State to investigate and give redress for interferences with the rights protected under the Convention (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1211, § 65). Thus, under Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. 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. Nevertheless, the obligation to exhaust domestic remedies only requires that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004). The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Vernillo v. France, judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27, and Dalia v. France, judgment of 19 February 1998, Reports 1998-I, pp. 87-88, § 38). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Akdivar and Others, cited above, p. 1212, § 71, and Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, p. 18, § 37). Moreover, in certain circumstances, even if a single remedy does not satisfy the requirement of effectiveness a combination of remedies may do so (see Klass and Others v. Germany, judgment of 6 September 1978, Series A no. 28, §§ 71-72, and Leander v. Sweden, judgment of 26 March 1987, Series A no.116, § 84).
59. The Court would emphasise that the application of the rule of exhaustion must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that this rule is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see Akdivar and Others, cited above, p. 1211, § 69).
60. The Court observes that the applicants’ complaint essentially relates to the situation created by the issuing of the permit of 14 August 1992, which modified the building specifications fixed previously, thus frustrating, the applicants’ expectations of developing their site in conformity with the plans previously accepted.
61. Before introducing the application in Strasbourg, the first applicant requested the Chairman of the PAPB to reconsider the permit of 14 August 1992. He moreover appealed to the Planning Appeals Board and the Court of Appeal, which then suspended the action sine die pending the constitutional proceedings in which the first applicant had raised a plea of unconstitutionality, based on Article 6 of the Convention and on Article 1 of Protocol No. 1 to the Convention. The Constitutional Courts rejected these pleas as the applicant had ordinary remedies which he was making use of (see paragraph 27 above).
62. As to the subsequent possibility of having recourse to judicial review against the PAPB’s decision of 14 August 1992, as confirmed in the decision of 18 June 2005, this remedy could have led to the revocation of the permit in issue. However, the Government failed to show that it could have resulted in the granting of compensation for the prejudice suffered because of the changes to the building specifications, thus providing appropriate redress and depriving the applicants of their status as victims under the Convention (see, mutatis mutandis, Scordino and Others v. Italy (no. 1), no. 36813/97, ECHR 2003-IV). Moreover, notwithstanding an element of inconsistency in the Maltese case-law on the matter, according to the final domestic judgments referred to by the applicants in their complementary observations (see paragraph 48 above), it was unlikely that such a review would have been applicable in the present case, and consequently the Court concludes that this would not have been an effective remedy for the applicants.
63. However, the Court notes, as also evidenced by the case-law submitted by the applicants, that judicial review would not have been a correct remedy in view of the fact that a specific law existed which indicated the relevant procedure, namely an appeal to the Planning Appeals Board and if necessary a further appeal to the Court of Appeal, as undertaken by the first applicant.
64. As far as a request for reconsideration to the DCC is concerned, the Court refers to its reasoning in its decision of 28 June 2005, where it observed that it was apparent from the wording of the MEPA’s letter of 29 October 1993 that the DCC had already expressed its view on the matter and could not see any good reason for modifying the permit of 14 August 1992. Furthermore, section 37(1) of the Development Planning Act did no more than state that an applicant may request the Authority or the Commission to reconsider its decision, or lodge an appeal with the Appeals Board, if he or she “considers that the conditions imposed upon a development permission ... [are] unreasonable”. This provision thus failed to indicate the legal grounds justifying such remedies. In its decision of 28 June 2005 the Court held that the national authorities enjoyed a wide and unfettered discretion in this field and that a request for reconsideration or an appeal based on section 37(1) of the Development Planning Act did not have reasonable prospects of success within the meaning of the Court’s case-law. The Court notes that in the original observations regarding admissibility the applicants did not substantiate their argument that they did not have a real opportunity of appealing against the decision to revoke the permit; neither did they rebut the case-law presented by the Government or their claims as to the effectiveness of such remedy. Furthermore, no mention was made of this remedy in their complementary observations and it can only be noted that in respect of a new development application which had been refused in 1998, following the first applicant’s request for reconsideration, his claim was then upheld on 21 July 2001 (see paragraph 29 above). The Court is of the view that, notwithstanding the wide and unfettered discretion that may appear from the law in respect of a request for reconsideration or an appeal to the Planning Appeals Board (both actions were undertaken by the first applicant), in the absence of a rebuttal and in view of the case-law submitted by the Government and as results from the facts of the case, it has not been sufficiently proved that this remedy was not effective for the purposes of Article 35 § 1.
65. The Court notes that the applicants could also have appealed to the Court of Appeal, an action which was pursued but which was then suspended sine die pending the outcome of the constitutional proceedings (see paragraph 18 above). The Court has not been informed that these proceedings have been resumed. It notes that the first applicant’s claims were not rejected, but only adjourned sine die and consequently the Court of Appeal, if given the opportunity, could have upheld the claims and sent the case back to the Planning Appeals Board, which, as has already been established (see paragraph 64 above) could have revoked the permit and satisfied the applicants’ first grievance.
66. The Court further notes that an action in tort was available to the applicants. Through this they could have taken action against the Government, who could have been found liable for the payment of damages. The applicants conceded that this action could have resulted in the award of civil damages, but argued that the action could not, however, have revoked the permit. The Court is therefore satisfied that this remedy could have compensated the applicants for the damage allegedly suffered and therefore addressed their second grievance.
67. The Court considers that in view of the conclusions regarding the latter remedies, in the particular circumstances of this case, the aggregate of remedies provided for under the Maltese system could have effectively redressed the applicants’ situation.
68. The Court further notes that although the applicants used some of the above remedies, which were ultimately not pursued to the end, they further attempted constitutional proceedings which, they emphasised, were the only alternative remedy left for them.
69. While observing that the Civil Court and the Constitutional Court could have found a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, and provided, if need be, adequate redress, the Court cannot but note that this was not so in the present case as the constitutional courts rejected the first applicant’s claims for failure to exhaust ordinary remedies. The Court stresses that it is not its role to second-guess the findings of the Constitutional Court on this matter unless those findings were manifestly arbitrary. In view of the fact that the applicants could have continued their proceedings after the Constitutional Court’s judgment, and had the applicant pursued the proceedings, the Court of Appeal, and the Planning Appeals Board, if given the chance, could have revoked the said permit; and lastly that the applicants had the option of an action in tort which could have compensated the damage suffered, the Court finds that the applicants had effective remedies of which they could have availed themselves within the meaning of the Convention and therefore finds no reason to doubt the Constitutional Court’s finding. The Court therefore upholds the Government’s objection.
70. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
II. THE COMPLAINT UNDER ARTICLE 6 OF THE CONVENTION
71. According to the applicants, the proceedings concerning the issuing of the permit of 14 August 1992 and the adoption of the DCC’s decision of 29 October 1993 were unfair. They relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
72. At the admissibility stage the applicants alleged that the PAPB had issued the permit of 14 August 1992 without a request from them and without informing them that the Board was deliberating on issues related to their property. Moreover, they had been denied the possibility of participating in the proceedings and of presenting submissions and the decision of the PAPB had not been notified to them, but to their architect. Thus, not only did they not have a fair hearing, but they had been denied all possibility of having a hearing.
73. The Government alleged that Article 6 § 1 of the Convention did not apply to the proceedings complained of and that in any case, in all the domestic proceedings the applicants had been given a fair hearing.
74. The Court notes that in the admissibility decision of 28 June 2005 the Court declared the complaint inadmissible as being manifestly ill-founded. It reiterated that 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 that has full jurisdiction (see Ortenberg v. Austria, judgment of 25 November 1994, Series A no. 295-B, pp. 49-50, § 31, and Crişan v. Romania, no. 42930/98, § 24, 27 May 2003) and that the lack of a public hearing before a lower instance may be remedied in the course of subsequent control to be carried out by such a body (Stallinger and Kuso v. Austria, judgment of 23 April 1997, Reports 1997-II, p. 679, § 46).
75. In the present case, on 8 February 1994 the first applicant appealed against the notice enforcing the permit of 14 August 1992 to the Planning Appeals Board. He subsequently referred his case to the Court of Appeal. These proceedings necessarily involved a control of the lawfulness of the permit which was being enforced and of the revocation of the original permit.
76. It had not been suggested that the Planning Appeals Board did not have the requisite scope of review or that the Court of Appeal carried out its control of legality without giving the parties the possibility of presenting their arguments in writing or at an oral hearing.
77. Therefore, in its decision of 28 June 2005, the Court was of the opinion that the shortcomings which might have occurred before the PAPB and the DCC were remedied in the subsequent proceedings before the Planning Board and/or before the Court of Appeal.
78. In view of the conclusions reached on the Government’s objection regarding non-exhaustion of domestic remedies (see paragraphs 69-70 above), the Court further confirms this reasoning.
79. 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
Declares the application inadmissible.
T. L. EarlyJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy