Issue link: https://maltatoday.uberflip.com/i/1037099
maltatoday 13 | SUNDAY • 7 OCTOBER 2018 CULTURE ENVIRONMENT LAW & PLANNING PLANNING permission for the demo- lition of an existing store and the subse- quent construction of a terraced house was approved by the Planning Board, despite the neighbour living next door had objected to the proposed develop- ment. The neighbour had insisted inter alia that the windows, balconies and outlets shown in the proposed plans were in breach of privacy standards which require a minimum separation of 6 metres between apertures of habit- able rooms, where these directly over- look another dwelling. Moreover, the neighbour held that according to arti- cle 409 of the Civil Code, party walls should have a height of at least 1.8 me- tres from the highest floor level. Following permit approval, the neigh- bour filed an appeal with the Environ- ment and Planning Review Tribunal, reiterating the following arguments: 1. The proposed designs were not in keeping with privacy standards since the layout plans on the first floor showed a balcony overlooking the internal court yard of his residence; 2. The distance between the ap- ertures of the proposed development to the rooms of his house amounted to 3.5 metres. This was in breach of policy (P41) of DC15 which prohibits windows or balconies overlooking the aperture of a habitable room of another dwelling, except where the distance is equal to, or greater than 6 metres or where privacy may be ensured by aperture design or the provision of screening. 3. No provision was made for the staggering of apertures such that they will not be directly opposite one another. In reply, the Planning Authority stood by its decision to approve the permit. The case officer defending the appealed decision observed that the proposed depth of the replacement building was equivalent to that of the present build- ing. It was also observed that applicant had 'the right of a servitude window overlooking third party', which aperture was being 'replicated' in the proposed drawings. The officer insisted that the objector's claims were related to a com- mon courtyard which he shared with ap- plicant, hence policy (P41) of DC15 was not applicable. The Tribunal was also re- minded that Policy P41 was not directed 'at the maintenance of privacy between units within a building which may be grouped around internal spaces, such as an internal yard.' In its assessment, the Tribunal observed that the redevelopment was acceptable in principle since applicant's site was lo- cated within a residential improvement action area. The Tribunal also noted that the objector was primarily concerned with a walled aperture at ground floor level as well as the windows and terraces which were being proposed at the upper levels and overlookinghis garden. The Tribunal held that it was not competent to decide whether the window at ground floor level constituted a servitude. Nev- ertheless, the Tribunal found that the proposed windows and terraces for the upper levels compromised the neigh- bour's privacy. After noting that the said apertures were not dictated by sanitary requirements, the Tribunal held that the rear boundary wall should be raised so as to screen the said windows and terraces from the neighbour's view. THE prosecution would have to pre- sent the medical records of the person charged with intentionally spreading HIV. This was decided in a judgement delivered by Magistrate Dr Aaron Bugeja. The accused was charged with having HIV and knowingly transmitted the vi- rus to another person or persons and he was also charged with transmitting HIV negligently. These charges are found in Article 244A of the Criminal Code. The case in hand concerns a homosex- ual relationship where the virus was al- legedly transmitted, therefore, although HIV may be spread in a variety ways, the court would concentrate on homosexu- al transmission of HIV. The charges are not directed at a person's sexuality but on whether the person spread the virus. Magistrate Bugeja pointed out that there is limited caselaw in Malta and therefore the Court also looked at Eng- lish and Italian law. The virus can be transmitted either by means of sexual activity or transmis- sion of infected blood or fluids. In the case of sexual activity, the virus can be passed on from the active party to the passive party. The virus can be spread when both persons in the sexual activ- ity knowingly have HIV or else none of them know that either or both have HIV. It is up to the prosecution to prove how the HIV was transmitted. On this the Court has to give special attention to the medical and scientific evidence. In order for a person to be guilty of these crimes the prosecution has to prove that the virus exists in the accused, that the virus was transmitted and it was trans- mitted to the subject of the crime. The victim of the crime, must obviously not have been infected before. The accused must either transmit the virus pur- posely or else negligently. In addition to this the accused must pass on the same type of virus he has and therefore, if he transmits a different type of virus, then he cannot be found guilty. The fact that the alleged victim claims that he had unprotected sex with he ac- cused, does not mean that the accused is guilty of the crime. Neither would he be guilty of this crime, if the accused admits to have sex with the alleged vic- tim. The English and Italian judgement emphasizes the concept of responsibil- ity and that the basic precautions must be taken when one enters into a sexual relationship. It is not sufficient that the accused of this crime would be aware that he had HIV before six or else he should have known he has HIV. The Maltese law provides that the prosecution should prove beyond reasonable doubt that the infection was intentional or else took place negligently. The fact that the ac- cused knew of his medical condition can be proved by his own admission or else by witnesses, but this has to be con- firmed by medical evidence, either by a doctor or else medical records. This has to be objective by means of medical and scientific evidence. For the prosecution to prove negligence is more daunting as it has to be proved that the accused should have known he has HIV. There must be some indication that he has the virus and, therefore, could potentially infect any person he has unprotected sex with. According to Article 244A(1) of the Criminal Code, the law provides that the victim should be infected with the virus and therefore should not carry the virus before the act that infected him. This is not necessary in the case of negligent infection as Article 244A(2) does not mention that the victim is not infected before the act of contamina- tion. The legislation here is laying down a scenario where the victim may be in- fected, but not necessary the same virus the accused has. However, the prosecu- tion still has to prove beyond reasonable doubt that the victim was infected by the accused. In this particular, the prosecution produced as the main witness the al- leged victim who was infected with HIV. The alleged victim told that court that he had his first homosexual sexual relationship with the accused and a few months later discovered he had HIV. He explained that he had sex for the first time with the accused. The court expert confirmed that in 2016 the ac- cused had HIV. The accused testified that he did not know the alleged vic- tim and did not have sex in 2012 and 2013 because he had haemorrhoids and underwent operations in Malta and abroad. For his operations he was tested and held that the results did not show that he did not have HIV. He ex- plained that he did not do tests because he had a scare when he was diagnosed with cancer, when it was a mistake. He avoided taking further tests. The ac- cused also told the court that he had a steady relationship with one man from 2013, but did not have sex during that year because of his medical problem and operations. Magistrate Bugeja complained that the prosecution did not produce medi- cal records of the accused and the al- leged victim before the alleged relation- ship and after. The Court could have come to some sort of conclusion if both men had the same or different strains of the HIV virus. There was no medi- cal evidence to show if the accused had, in fact, infected the alleged victim with HIV. The Court also pointed out that the alleged infection took place in 2012, but the only test was carried out by the Court's appointed expert in 2016 and therefore, there is no sufficient evidence to support the victim's claims The Court in a detailed judgement concluded by finding the accused not guilty. Medical evidence crucial in HIV contamination case mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates LAW robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Wall should be raised to ensure privacy