Issue link: https://maltatoday.uberflip.com/i/1174220
| SUNDAY • 6 OCTOBER 2019 maltatoday 13 CULTURE ENVIRONMENT LAW & PLANNING ALTHOUGH the Government is the legitimate defendant in proceedings of a constitutional nature, where the type of remedy sought by the plaintiff affects the rights of a private citizen then their unity into the suit is mer- ited. This was declared by the Consti- tutional Court in the case of Avukat Dottor Alfred Grech v. Avukat Gen- erali u Kummissarju tal-Pulizija on the 27th September 2019. The case was an appeal by Grech, who had been the subject of a complaint made to the Executive Police by a cer- tain Anthony Xuereb. The Police had investigated the complaint and found that there were no grounds upon which any criminal action could be taken against Grech. Through the procedure in Article 541(3) of the Criminal Code, Xuereb appealed this decision in front of the Criminal Courts, which proceed- ings led to the Court ordering the Police to take criminal action against Grech. Subsequently, Grech filed an applica- tion before the First Hall Civil Court in its Constitutional Jurisdiction pleading that the procedures in Article 541 of the Criminal Code are not in line with the right to a fair hearing, guaranteed by both the Constitution and the Euro- pean Convention on Human Rights. He also asked the Court to annul the deci- sion of the Criminal Court, instituted by Xuereb, and to grant him the opportune compensatory damages. This action was instituted against the Attorney General and the Police Commissioner. In their written submissions, the de- fendants held that Xuereb should also be joined in as a party to the hearing. The First Hall Civil Court accepted this request by court decree and Grech filed an appeal to this decision, claiming that Xuereb did not meet the legal require- ments of juridical interest to enable him to join the proceedings. He claimed that Xuereb's interest was only hypotheti- cal because he was only using the right given to him by the law in virtue of the Criminal Code, however the outcome of the decision would not directly affect him. Furthermore, he cited jurispru- dence which clearly states that juridical interest cannot be the general interest that all citizens have, but must directly affect specific rights of the defendant. The Constitutional Court firstly care- fully considered the reasoning of the First Court. The Civil Court had held that although a party joined to a suit must have a direct juridical interest, this does not prevent someone from joining a suit to give his reasons in favour or against the subject-matter in question, should this affects his rights. Therefore, a party joined to the suit does not nec- essarily mean that they must be found guilty or innocent, responsible or ir- responsible. The nature of certain par- ticular cases merits the presence of third parties joining the suit, including private citizens in human rights cases, because the remedy sought impinges on the rights of that individual. The Constitutional Court therefore rejected the claim by the appellant that Xuereb's rights in this case were too general to grant him direct juridical interest. Rather, the Court stated that because the appellant asked the Court to reverse the decision of the Criminal Court which was instituted by Xuereb, then he is necessarily directly affected by the present proceedings. The Court made reference to the judgement Grace Spiteri vs Avukat Generali (25th April 2018) wherein the Court held that if the law grants the right to a party to start proceedings, then any decision that af- fects those proceedings must necessari- ly include the participation of that party. Therefore, the Court concluded that Xuereb has an interest in the proceed- ings because the law gave him the right to institute them. Furthermore, the rule of audi alteram partem, or the rule that both parties must be heard in a trial, necessitates that he be heard since the outcome of the proceedings would af- fect the decision of the Criminal Court. The appeal was, therefore, rejected with all expenses to be paid by the appellant. Human rights cases where remedy sought affects rights of private citizens, are to be joined in the suit 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 A permission for the construction of three apartments in Triq it-Turisti, San Pawl il-Bahar was granted by the Planning Authority notwithstanding there being a number of objections. The proposed dwellings were to oc- cupy the airspace of an existing block. The works included the demolition of a staircase linking the first and sec- ond floor in the common area as well as the construction of a lift. As expected, the objectors asked the Environment and Planning Review Tribunal to revoke the permit, insist- ing that the Authority had abused its discretion. In the appeal application, the ob- jectors said that applicant was duty bound to certify to the Authority that he was either the owner of the site in question or that he had the au- thorisation of the owners to proceed with such application. In this case, it was alleged that applicant had failed to provide the said certificate as re- quired by law. The objectors went to explain that applicant was one of several individu- als owning the common parts. Refer- ence was also made to Article 8(3) of the Condomimum Act which states that structural alterations as the ones proposed required the unanimous consent of all the condomini. For this reason, the Authority was duty bound to see whether applicant had obtained the authorisation of the other co-owners prior to proceeding with the planning application. The appellants remarked that it made 'no sense' on the part of the Authority 'to summarily delegate the matter of ownership to the civil courts' when the law made a specific provision to the effect that an ap- plicant who is not the owner should notify the owner by means of a regis- tered letter. Moreover, appellants pointed out that the proposed interventions would 'negatively impact the current landscape and layout of the apart- ment block which has been in exist- ence since 1981'. In reply the Authority noted that applicant had declared that he is the sole owner of the entire site adding that a Court of Law was in a position to nullify the permission should it re- sult otherwise. To reinforce its argument, the Au- thority made reference to a simi- lar instance where a certain Aurelio Schembri took his case to court, only to have it dismissed since the Plan- ning Authority was declared to have no competence to decide civil issues. In its assessment, the Tribunal took note of what both parties had to say. It went on to observe that according to the Development Planning Act, an 'owner' is defined as either a person who is a title holder in his own right and also 'any one of the co-owners of the land on which development takes place'. This implied that a co owner was considered to be an owner for the purpose of the Planning Act, hence there being no requirement for him to obtain consent from the other co- owners. As to the proposed interventions, the Tribunal found that these were compatible with planning policies. Against this background, the appeal was rejected and the permission was confirmed. A 'co-owner' is an 'owner' for the purpose of planning law