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February, 15 2019
February, 15 2019
Partial deprivation of right to property still breach of human rights
Partial deprivation of one’s interest in or right over his own property may still constitute a breach of the fundamental right of enjoyment of one’s own property. This was held by the Constitutional Court presided by Honourable Chief Justice Joseph Azzopardi, Judge Giannino Caruana Demajo and Judge Noel Cuschieri in the judgement George Tabone et v Attorney General decided on the 5th October 2018.
The case was initially instituted before the First Hall Civil Court in its Constitutional Jurisdiction by George Tabone, Gram Collections Ltd, Gram Jewellers Ltd and Gram Holdings Ltd where it was alleged that their right for the enjoyment of property under Article 37 of the Constitution of Malta and Article 1 of Protocol 1 of the European Convention on Human Rights and Fundamental Freedoms had been breached.
On the 7th November 2012, George Tabone was arraigned before the Court of Magistrates charged with having received or bought stolen objects in his own name and on behalf of the plaintiff companies. On the 1st March 2013, the Court had acceded to the prosecution’s request made in terms of Article 5 of the Anti-Money Laundering Act (a) to attach in the hands of third parties in general all moneys and other movable property due or pertaining or belonging to the accused, and (b) to prohibit the accused from transferring, pledging, hypothecating or otherwise disposing of any movable or immovable property.
George Tabone was acquitted from the charges brought against him and in its judgement the court stated that the freezing order would be removed once the judgement became res judicata. The Attorney General appealed from that judgement and until the date of filing of the constitutional action it was still pending.
The plaintiffs argued that the freezing order had put them in a precarious financial situation with detrimental consequences. The plaintiffs argued that the order was a disproportionate measure since it was not limited to the amount that the plaintiff had allegedly misappropriated, being between €100,000 and €200,000. The First Hall Civil Court (Constitutional Jurisdiction) in its judgement of the 7th November 2017 held that there had not been a breach of the plaintiffs’ fundamental right of enjoyment of property since this freezing order is issued upon reasonable suspicion that property was acquired through a criminal activity.
Moreover the Court held that Article 37 of the Constitution was not applicable in such cases since a freezing order is a means of control over that property and does not amount to a total deprivation of the said property from the owner. Moreover whilst analysing the nature of Article 1 of Protocol 1 of the ECHR the Court held that the right of enjoyment of property could be disturbed when it is in the public interest. The rationale behind a freezing order is that a person should not enjoy property that results from the commission of a crime and therefore it is issued in the public interest. In view of this, the Court held that there had not been a breach of Article 1 of Protocol 1.
The plaintiffs felt aggrieved by this judgement and filed an Appeal before the Constitutional Court on the grounds that the First Court had failed to take cognizance of the fact that the freezing order lacked proportionality since it was not limited to a certain amount and that it had erroneously declared that Article 37 did not apply in such cases.
In its judgement, with regards to the first ground of Appeal, the Constitutional Court held that the fact that the freezing order was not limited to the amount that had allegedly been misappropriated was not to be considered as a disproportionate measure since should it be proven that the money or other property that was originally misappropriated was used in order to generate more money or assets, then the latter property would also be emanating from a criminal offence. For this reason this ground of Appeal was refused by the Constitutional Court and found that there wasn’t a breach of Article 1 of Protocol 1 of the ECHR.
However the Constitutional Court held that the First Court’s observation as to the applicability or otherwise of Article 37 of the Constitution in such cases was manifestly wrong. Article 37 states that no property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be acquired. Therefore it does not only prohibit the total deprivation of one’s property but regulates against the compulsory acquisition of any interest in or right over one’s property.
The right to consume and to dispose of one’s own property is one of the main faculties of ownership and therefore where the owner of property is precluded from consuming or disposing of his own property amounts to a compulsory acquisition of interest in that property thereby impinging on the right under Article 37.
Notwithstanding this, although the Constitutional Court reformed the judgement of 7th November 2017 in the sense that it declared that in fact Article 37 of the Constitution is also applicable in cases where there is only partial deprivation of one’s property, it still upheld the said judgement where it was held that there was no breach of Article 37 of the Constitution since the deprivation from the enjoyment of plaintiffs’ property was legitimate due to the legitimate suspicion that the property emanated from the commission of a criminal offence.
Av. Catherine Mifsud
Mifsud & Mifsud Advocates