Court dismisses claim of police abuse of power

Chief Justice Vincent DeGaetano in the Civil Court yesterday dismissed a constitutional application filed by Joseph and Loreta Borg against the Police Commissioner and two police sergeants.

The case, filed in 1998, was continued by Charles, Tony and Teddy Borg after the death of Joseph Borg.

The Borg family claimed that their fundamental human right to peaceful enjoyment of property had been violated by the actions of the police and that the police had abused their power.

The court noted that on May 29, 1998, demolition works were to be carried out at Nadur, Gozo, on the property of a certain Martin Vella. In order to reach this property, Vella's workmen had to pass through a passageway that led to the boundary wall of Vella's field.

However, when the workmen tried to demolish this wall, they were obstructed by Loreta Borg who insisted that the passageway and the wall were owned by her and her husband Joseph.

The police, including PS John Grima and PS Mario Cassar, arrived on the scene and while they were trying to maintain order, Charles Borg obtained the issue of a warrant of prohibitory injunction from the Gozo courts to stop the demolition works.

But the wall was demolished in the presence of the police officers and with their assistance, before the court marshall arrived with the court warrant.

The court added that Vella had a Planning Authority permit to develop his land behind the wall.

The Chief Justice ruled that in this case there was no issue of deprivation of possession on the part of the Borg family but it involved interference in their enjoyment of their property.

The crux of this case, he said, was the establishment of the limit between the duties of the executive police to maintain public order and the interference in private property by the police if this amounted to a violation of applicants' fundamental human rights.

The court felt there could be interference in the peaceful enjoyment of property if this was required in the public interest. However there had always to be a balance between the interests of the general community and the interference sustained by the individual on the other hand.

There was no doubt that had the police limited themselves in this case to preventing conflict between Vella and the Borg family, then one would not be able to find that there was a violation of fundamental human rights.

However, in this case, acting on instructions from their superiors, the two police sergeants had actively and directly assisted Vella's workmen to enter the passageway and to demolish the wall. This was not part of the duty of the police to maintain public order.

However, in order for the Borg family's application to be upheld, they had to prove, to the degree required by the civil law, that Vella had no right of access to the passageway and that they were the exclusive owners of the wall.

The Borg family had not produced this evidence before the courts, nor had they proven that Vella had no rights to the wall that was demolished.

The court therefore concluded that it was not satisfied that the Borg family enjoyed exclusive rights of ownership over the property and it dismissed the constitutional application.