Issue link: https://maltatoday.uberflip.com/i/1159832
maltatoday 17 | SUNDAY • 25 AUGUST 2019 CULTURE ENVIRONMENT LAW & PLANNING A document which is an obvious falsification of a private document, excludes the commission of the of- fence of falsification. This was held in a judgement delivered on 12 Au- gust 2019 by Magistrate Dr Joseph Mifsud in Pulizija -v- Elexey Ere- michev and Roman Shirinyan. The two Russians were accused of making use of a false document in June 2019 and of being in possession of objects that were used for fraud. Magistrate Mifsud analysed the evidence produced: the prosecut- ing inspector Christabelle Chetcuti told the Court that on 12 June 2019, she received a report from Lombard Bank in Valletta, that two Russians tried to cash false documents for USD1.5 million. The bank manager explained to the police that the accused had in their possession four bearer bonds cer- tificates. These had finished from circulation around 30 years ago and there was a recent looking logo of the bank. The bank suspected that this was a scam. The accused explained to the po- lice that they had travelled to Malta to verify these certificates, however, before doing so they sent emails to the bank and even rang them up, but the bank did not reply. Therefore, the only option was for them to travel to Malta and verify personally. The bank manager confirmed that the bank received the emails and did not reply for security reasons, as they feared that someone was trying to get access to the bank system. The Court expert reported to the Court stating that the certificates had the same serial number, howev- er, there were no security features, such as the type of paper and ink used. The document was certainly not authentic. Alexey Eremichev testified that the certificates were inherited by a friend of his who needed assistance to verify whether they were authen- tic. He had contacted another friend who worked at a bank in Russia, who tried to contact Lombard Bank in Malta by email and phone. Once there was no reply, they decided to go to the bank personally and there- fore, travelled to Malta. When he entered the bank he spoke to an official, who took the certifi- cates and said that these were not valid. He insisted that all he wanted to do was to see whether they were valid certificates. As to the legal consideration, the Court held that the prosecution must prove its case beyond reason- able doubt, however, this does not mean that the proof must beyond the shadow of a doubt. The first charge is of knowingly making use of a false document, which is a different offence from fal- sification. The latter is the participation in creating the falsified document. It is not sufficient that it is proved that the document is false, but it must also be used. The Court did not find the accused guilty of this charge mainly because they had tried to contact the bank to check whether the documents were authentic or not. This is before they came to Malta. This would be different if they would have come to Malta, without trying to verify the certificates and tried to cash them straight away. Both accused had told the police that they wanted to verify whether the documents were genuine. The Court pointed out that when they tried to obtain information, this did not in- volve the use of the documents. The Court then turned to the sec- ond charge of having possession of an object that can be used for fraud. According to a previous judgement Il-Pulizija -v- Bessam Abdulhamid, decided on 3 December 2018, the criminal intent required is generic intent and that the defendant should have the article for the purpose in connection with a crime of fraud. Again the Court did not find the two accused guilty of this crime. Magistrate Mifsud held that the cer- tificates had the same serial number and did not have any security fea- ture. The bank employees and the police noticed straight away that the docu- ments were not valid. Furthermore, the certificate con- tained spelling mistakes. The Court applied a legal principle where the use of document which is obviously false, is not a crime. The Court found the two accused not guilty of the two charges, but confiscated the documents. An obvious falsification of a document is not a crime LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING AT issue was a planning application envisaging the 'part demolition' of a traditional Sliema townhouse to pave way for three additional dwelling units. In his application form, the archi- tect highlighted that the existing fa- çade as well as the hallway and stairs would be retained. The application was subsequently given the green light by the Planning Commission notwithstanding there being a handful of objections from nearby residents. As would have been expected, the third party objectors lodged a strong- ly worded appeal before the Environ- ment and Planning Review Tribunal, insisting that the permit should be revoked. In their appeal application, appel- lants said that the approved plans omit any reference to the their prop- erty which adjoined the site in ques- tion. It was maintained that a common well was shown without the archi- tect having verified its extent. The objectors added that they had com- missioned a surveyor to retrieve the dimensions and found that the well was significantly larger than what was shown in the approved plans. To this end, the objectors contend- ed that the approved plans contained fraudulent information. Further- more, appellants highlighted that excavation works were going to take effect within the statutory 76 cm dis- tance from the face of the party wall, hence in violation of the Civil Code. Finally, appellants contended that the proposed envelope was not ad- equately receded from their property, giving rise to loss of privacy as well as reduced levels of light and ventila- tion. In reply, the Authority stood firm with its decision to issue the permit. Insofar as the well, the Authority held that 'it remains the responsibility of the architect that shows the well cor- rectly.' As to the yards, the Authority noted that the standard distances could be done away with due to the fact that the applicant's site was restricted (the plot depth was less than 15 metres). Concluding, the Authority noted that there were no sound planning justifi- cations to justify permit dismissal. In its assessment, the Tribunal tack- led the objector's arguments individ- ually. As to the proposed excavation works not being in line with the civil code stipulations, the Tribunal held that it held no jurisdiction to decide such a matter. The parties were reminded that such issues were to be resolved before a civil court. With regard to the underground cistern, the Tribunal observed that the applicant's architect had made a written declaration to the effect that he 'does not intend to carry out any works that will affect the integrity of the well and its current size'. Nevertheless, the Tribunal was not satisfied with such a declaration and held that no excavation works should be carried out towards the rear of the plot. In relation to the 'small yards', the Tribunal made express reference to Guideline G21 (DC15) which states that 'all developments should aim to provide a positive spatial contribu- tion to their context in the definition and enclosure of existing space'. The implications of this provision were aimed at ensuring that the de- velopment of gardens and backyards does not lead to the loss of amenity space, particularly within UCAs. The Tribunal observed that, in this case, the Authority had no regard to afore- mentioned provision. Concluding, the Tribunal under- lined that that it was not enough for the Authority to comply with sani- tary laws. Against this background, the Tribunal ordered the Authority to reassess the application in light of the aforesaid. Tribunal finds issue with underground cistern and 'small yards'