Strasbourg court turns down boatman's complaint

The European Court of Human Rights has ruled that appealing the ruling of Malta’s highest court, the Constitutional Court, raises issues of “impartiality and independence” because appellant courts would have to rule on the conduct of the Chief Justice, the president of the Constitutional Court, and other hierarchically superior judges.

In a decision it delivered today, in which it rejected a complaint of unfair hearing by a Blue Grotto boatman, the Strasbourg court said that complainants are not necessarily required to appeal a final judgment of the Constitutional Court, to exhaust all domestic remedies before filing a complaint with the European Court of Human rights.

The case was brought Joseph Bellizzi, a full-time boatman at Wied iz-Zurrieq, whose family made use of a berth on the pontoon for many years on the basis of an encroachment permit issued to Bellizzi’s uncle in 1970. Both Bellizzi and his cousin moored their boats at the same berth.

When Bellizzi’s uncle passed away 1983, the Commissioner of Lands revoked the encroachment permit in 1986 and did not issue a new one in anyone else’s name. Then in 1995, the maritime authority invited Bellizzi’s cousin to apply for a temporary mooring permit, and issued a temporary mooring permit just a day after he applied for it on 26 June 1995.

On 18 July 1995 Bellizzi also applied for a permit but his application was rejected, because the MMA said it would not be possible to issue two permits for the same berth. His cousin refused to share the berth with him, so Bellizzi lodged civil proceedings against the MMA.

In 1999 the Civil Court turned down his claim, holding that the MMA was not bound by previous inheritance rights or to issue more than one permit. The Court of Appeal upheld the sentence in 2001, saying all previous permits were only customary and had terminated once the MMA was established.

In 2002 Bellizzi instituted constitutional redress, saying the appeals court decision was based on a misconceived idea that there was a time-limit within which he had to apply but had failed to do so. The Civil Court in its constitutional jurisdiction noted that the cousins had the same rights and derived in the same manner. Moreover, there was no policy disallowing the issue of multiple permits for the same berth, and found the MMA’s decision had been totally arbitrary. It ordered the reissuance of the permit in the name of both users.

In 2009, on appeal the Constitutional Court reversed the first-instance judgment, saying that a situation where a State tolerated a custom did not create a right. This meant Bellizzi had no right or legitimate expectation and, therefore no possession to the berth. Instead, it said that Bellizzi could have requested the enforcement of his cousin’s obligation towards him, but this had nothing to do with the MMA.

Bellizzi complained to the European Court of Human Rights, saying the Constitutional Court had not been impartial, because the legal secretary of the Office of the Chief Justice had been one of the team of lawyers representing the MMA.

The Court found that Bellizzi did not take any action to regularise his position once the Commssioner of Land’s powers were abolished in favour of the MMA in 1991. “Had the first applicant believed he had a legitimate expectation to obtain a permit on the basis of the permit bequeathed to him or on the basis of the unhindered use he had made of the mooring for a number of years, he could have at least been expected to take action to have the alleged proprietary interest recognised and enforced by the MMA as the newly competent authority.”

The Court found he had no right to enjoyment of the property under Article 1 of Protocol No.1 of the European Convention.

The Maltese government on its part submitted that Bellizzi failed to institute a new set of constitutional proceedings on the alleged lack of fairness of proceedings before the Constitutional Court.

While the ECHR said that there was no reason to doubt this remedy, it said it was concerned at the length of another set of constitutional proceedings at a stage where an applicant’s initial complaint would have been conclusively decided after several years of litigation.

The Court said appealing a constitutional sentence is a cumbersome procedure, and that the length of these proceedings is aggravated by the fact that they may be adjourned sine die. “The Court considers that, even though the domestic legal system allows for such a new complaint to be lodged, the length of the proceedings detracts from their effectiveness.”