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MALTATODAY 14 April 2019

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maltatoday 13 | SUNDAY • 14 APRIL 2019 CULTURE ENVIRONMENT LAW & PLANNING AT issue was a planning application for the conversion of a conference hall, which forms part of Capua Pal- ace in Sliema, into a multi-purpose hall where catering events could also be hosted. During processing stage, the Planning Authority received a number of objections from neigh- bouring residents who voiced their concern in view of the likely impact associated with increased traffic gen- eration. The application was, in fact, turned down by the Planning Commission on the following basis: 1. The proposed change of use was considered to give rise to bad neigh- bourliness, particularly due to the fact that the premises were located close to the Capua hospital. The pro- posal was thus incompatible with Thematic Objective 6.1 and Urban Objectives 3.5 and 4.2 of the Strategic Plan for Environment and Develop- ment (SPED); 2. The proposal would also give rise to unacceptable additional on-street car parking which would not be in the interests of the amenity of the area. The proposal was therefore in con- flict with Thematic Objective 10.6 of the Strategic Plan for Environment and Development and to the car parking standards set out in Annex 1 of DC 15. As a reaction, applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that permission should have been granted. According to applicant (now appellant), there are other ho- tels located elsewhere which 'enjoy virtually unrestricted use of similar commercial spaces'. To reinforce his argument, appellant made express reference to Milano Due Hotel in Gzi- ra and Torre Paolina wedding hall in Madliena. Appellant went further to argue that ' a multipurpose ancillary hall has always been considered by all government entities and authorities as being intrinsic to the operation of a hotel property'. Appellant thus held that the Board's decision was 'arbi- trary in nature' whilst pointing out that he would be willing to under- take those noise mitigation measures which the Board deemed necessary. Ultimately, appellant submitted that the Hotel Management was 'naturally keen' not to disrupt guests staying within the same hotel complex. In reply, the Authority reiterated its concerns in that the envisaged use would see guests 'accessing the venue from the street and use the terraces directly beneath the hospital dur- ing events to socialise.' The Tribunal was further reminded that the traffic situation in the area had deteriorated significantly in the past ten years. Ap- proving this application would only lead to further congestion in the area which, in turn, could compromise ambulance access to Capua hospital. In its assessment, the Tribunal ob- served that the previous cases which appellant had mentioned in order to substantiate his arguments were of no relevance since none of these sites were located close to a hospital. Having said that, the Tribunal noted that the hall in question was not sub- stantially large in size. But even so, the hotel already had an area which served as a catering facility. Against this background, the Tribunal felt that permission should be granted on condition that public access to the terrace overlooking Capua hospital be restricted. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Catering events permitted in Capua Conference Hall DUE to legal amendments that came into force in May 2018, words de- clared or published on social media with the aim of slandering a person cannot be considered a criminal of- fence for the purposes of the Media and Defamation Act. This was stated by Magistrate Donatella M. Frendo Dimech in the case of Pulizija vs Rita Scerri heard on the 9th of April 2019. The Court heard the charges against the accused who stood trial for Fa- cebook comments that she posted against the victim Cassar and mem- bers of her family. The words stated by the accused included insults and profanity. For this reason, the charg- es against her were for firstly injuring and/or threatening the victim and/ or members of her family, and sec- ondly that she acted inappropriately through the use of electronic com- munication. With regards to the first charge, the prosecution dropped the charge due to the expiration of the prescription period allowed by law. The Court delved into the problems with the evidence presented in the case. It was questioned why the po- lice's classified the accused's conduct as a "serious crime" in order to obtain the necessary evidence from Face- book. It was held by the Court that in accordance with the rules within the Processing of Personal Data (Elec- tronic Communications Sector) Reg- ulations, a serious crime is one that carries a sentence of not less than a year. The crime could therefore not be classified as such because an ac- tion relating to slander by means of electronic communication can only be of a civil nature and is not cog- nisable by the criminal court due to amendments to Article 49 of Chap- ter 399 of the Laws of Malta. The Court also reprimanded the prosecution for relying solely on the evidence obtained through their communication with service provid- ers and Facebook without presenting the Court with an opportunity to ex- amine witnesses in connection with this. It was stated that this kind of ev- idence constitutes hearsay evidence, which in accordance with Article 520 of the Criminal Code, is not admissi- ble. The academic work by Professor Mamo on the topic was affirmed by the Court, wherein it was expounded that the reason for the rejection of hearsay evidence is founded on two main premises. The first is that in these cases the facts which the prose- cution relies on, cannot be confirmed under oath, and secondly that the person against whom the evidence is offered does not have the opportuni- ty of cross-examining that other per- son testifying as to his recollection, veracity or means of knowledge. The Court confirmed the importance of examination of witnesses under oath in order to properly allow the ac- cused a fair trial, and explained that hearsay evidence does not provide an adequate opportunity for this. The Court illustrated this point by stating that the police's report revealed that the IP address from where the slan- derous comment was published did not match the accused's address and was in fact registered on someone else. Due to the insufficient evidence and witnesses presented, the Court could not go into these facts in order to establish the accused's connection with the offence. The Court then referred to the judgement given by the Court of Criminal Appeal in the case of Police vs Francis Frendo (2008) where the Court interpreted a threat as some- thing that produces fear of future ag- gression. It was explained that when a person is threatened, the agent must have been exposing the victim to a specific unjust harm. It was held that the words stated by the accused did not amount to threats, and al- though they may have been inappro- priate, slander cannot be considered a crime. Although the Court did not give a judgement on the first charge, it said that there could be no fault found in this regard. The accused was liberated from all guilt in relation to the second charge. It was, therefore, concluded that she was not guilty. Slanderous words written on social media no longer constitute a criminal offence LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates

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