Yacht owners petition ECHR over changes in berthing rights

The members of the Berths Holder’s Association, which represents the majority of persons who berth their yachts at the Ta’ Xbiex Yacht Marina have presented a petition to the European Court of Human Rights, after the Constitutional Court overturned a judgment declaring the association’s members enjoyed a permanent and indefinite right to berth there.

The application filed before the ECHR explains that for the past 25 years many of the association’s members had originally been given the right to berth there indefinitely, but in 2011 the Malta Transport Authority had informed the association that it was requesting its members sign a renewable 1 year definite contract. The association refused and filed a constitutional case, based on the premise that they had acquired rights to berth at the site in question under the original conditions.

The application was filed on the basis of Article 1 of Protocol 1 of the European Convention on Human Rights, which enshrines the individual's right to property. It quotes one applicant, Rino Muscat Scerri as saying that after 25 years berthing at Msida he had been offered a berth at Ta’ Xbiex, which he had accepted on condition that the conditions would be the same – i.e. permanent.  Another applicant, George Smith had also testified that he had been offered a permanent berth at Ta’ Xbiex, adding that he has resided on his boat at the Ta’ Xbiex Marina since 2000. “I used to berth on pontoon A at Msida Yacht Marina.  Then the authorities had contacted me and asked me if I had any objection in taking over a permanent berth at Ta' Xbiex Yacht Marina instead of the one I had in Msida.  I accepted on the condition that my position at Ta' Xbiex would be permanent."

The application points out that the First Hall of the Civil Court in its Constitutional Jurisdiction had conducted an in-depth examination of whether the applicants' use of their berths as explained above constitute an interest that could be protected by law and had concluded that the "right to berth" was an interest that has an economic value and therefore qualifies as a "possession" protected under the Convention.

The association claims that there were a number of local judgments which recognised the right to berth as, at least, an interest which is to be protected at law.

The association also decried what it describes as the sorry state of the Ta’ Xbiex Yacht Marina, with frequent thefts from yachts, illegal parking on the marina and old, abandoned water and electricity outlets which are accessible to the public and pose a danger to the public as well as an opportunity for water and electricity theft. It claims to have communicated this to the Malta Transport Authority on several occasions to no avail.

Lawyers David Camilleri and Joseph Gatt signed the petition.