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MICALLEF v. MALTA - 17056/06 [2009] ECHR 1571 (15 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1571.html
Cite as:
28 BHRC 31,
(2010) 50 EHRR 37,
[2009] ECHR 1571,
50 EHRR 37
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GRAND
CHAMBER
CASE OF MICALLEF v. MALTA
(Application
no. 17056/06)
JUDGMENT
STRASBOURG
15 October
2009
This
judgment is final but may be subject to editorial revision.
In the case of Micallef v. Malta,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Jean-Paul Costa,
President,
Christos Rozakis,
Françoise Tulkens,
Giovanni
Bonello,
Corneliu Bîrsan,
Karel Jungwiert,
Anatoly Kovler,
Vladimiro Zagrebelsky,
Elisabet Fura-Sandström,
Khanlar Hajiyev,
Egbert Myjer,
David Thór
Björgvinsson,
Dragoljub Popović,
Giorgio Malinverni,
András Sajó,
Zdravka Kalaydjieva,
Mihai Poalelungi,
judges,
and Michael
O'Boyle, Deputy
Registrar,
Having
deliberated in private on 22 October 2008 and 9 September 2009,
Delivers
the following judgment, which was adopted on that last mentioned
date:
PROCEDURE
The
case originated in an application (no. 17056/06) against Malta lodged
with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Maltese national, Mr Joseph Micallef (“the applicant”),
on 15 April 2006.
The
applicant, who had been granted legal aid, was represented by Dr T.
Azzopardi, a lawyer practising in Valetta. The Maltese Government
(“the Government”) were represented by their Agent, Dr S.
Camilleri, Attorney General.
The
applicant alleged that Mrs M. had been denied a fair hearing, in
particular because of her lack of opportunity to make submissions
before an impartial tribunal, contrary to Article 6 of the
Convention.
The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). On 5 September 2006 a Chamber
of that Section composed of Sir N. Bratza, President, Mr J.
Casadevall, Mr G. Bonello, Mr M. Pellonpää, Mr L.
Garlicki, Ms L. Mijović, and Mr
J. Šikuta, judges, decided to communicate the
complaint concerning the fairness of the appeal proceedings and the
alleged lack of impartiality of the Court of Appeal to the Government
and declared the rest of the application inadmissible. It also
decided to examine the merits of the complaint at the same time as
its admissibility pursuant to Article 29 § 3 of the Convention.
On 15 January 2008 a Chamber of that Section composed of Sir N.
Bratza, President, Mr G. Bonello, Mr K. Traja, Mr L.
Garlicki, Ms L. Mijović, Mr J.
Šikuta and Ms P.
Hirvelä, judges, by a majority declared the
remainder of the application admissible and, by four votes to three,
held that there had been a violation of Article 6 of the Convention.
A concurring opinion of Mr G. Bonello and a joint dissenting opinion
of Sir N. Bratza, Mr K. Traja and Ms
P. Hirvelä were appended to the judgment.
On
7 July 2008 a panel of the Grand Chamber granted the Government's
request to refer the case to the Grand Chamber in accordance with
Article 43 of the Convention.
The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
Rule 24 of the Rules of Court.
The
applicant and the Government each filed observations on the
admissibility and merits. In addition, third-party comments were
received from the Government of the Czech Republic, which had been
given leave by the President to intervene in the written procedure
(Article 36 § 2 of the Convention and Rule 44 § 2).
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 22 October 2008 (Rule 59 § 3).
There appeared
before the Court:
(a)
for the Government
Dr
Silvio Camilleri, Attorney General, Agent,
Dr
Peter Grech, Deputy Attorney General, Adviser;
(b)
for the applicants
Dr
Tonio Azzopardi, Counsel.
The
Court heard addresses by Dr Tonio Azzopardi and Dr Silvio Camilleri,
and also their replies to questions put by the Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1929 and lives in Vittoriosa.
A. Background of the case
The
applicant is the brother of Mrs M., who lived in an apartment above
Mr F.
On
17 July 1985 Mr F. applied for an injunction to restrain Mrs M. from
hanging out clothes to dry over the courtyard of his apartment,
thereby allegedly interfering with his property rights. Mr F.
relied on the provisions of Article 403 of the Maltese Civil Code in
this connection.
On
one occasion following a hearing on the injunction, and
after Mrs M. and her lawyer, Dr A., had already left the
courtroom, the presiding magistrate changed the date of a future
hearing, which had already been fixed. As a consequence, Mrs M.
was not aware of the new date and was not present at the hearing.
In her absence, on 29 November 1985 the presiding magistrate
issued the injunction in favour of Mr F.
According
to Maltese law as it stood at the time, Mr F. had to institute
proceedings in respect of the property claim preserved by the warrant
within four days of the issuing of the injunction; otherwise the
injunction would cease to have effect. Accordingly, on 5 December
1985, Mr F. lodged a writ of summons to start proceedings.
On
6 March 1992 the relevant court trying the merits of Mr
F.'s civil action found against Mrs M. and issued a permanent
injunction against her. On 24 March 1992, as no appeal had been
lodged, the case became final.
B. Proceedings before the Civil Court in its ordinary
jurisdiction
On
6 December 1985 Mrs M. instituted proceedings before the Civil Court
(First Hall) in its ordinary jurisdiction, claiming that the
injunction had been issued in her absence and without giving her the
opportunity to testify (see paragraph 77 below).
By
a judgment of 15 October 1990, the Civil Court upheld her claim. It
held that the audi alteram partem principle was applicable to
the procedure for issuing an injunction. Referring to Article 873 (2)
of the Code of Organisation and Civil Procedure, which stated that an
injunction should not be issued unless the court was satisfied that
it was necessary in order to preserve any right of the person seeking
it (see paragraph 27 below), the Civil Court held that the relevant
test was a matter for the court's discretion. However, if the court
found it necessary to hear the parties, they should be duly heard in
accordance with the principles of natural justice. In the present
case the court held that, through no fault of her own, Mrs M. had
been denied her right to be heard and therefore the said warrant was
null and void.
C. Proceedings before the Court of Appeal
Mr
F. appealed against the judgment of 15 October 1990. In the
first-instance proceedings Mr F. had been assisted by Dr U., while at
the appeal stage he had appointed the latter's son, Dr C. The Court
of Appeal was presided over by the Chief Justice, who sat with two
other judges. The Chief Justice was Dr U.'s brother and Dr C.'s
uncle.
At
the appeal hearing of 12 October 1992, the Chief Justice, after
asking some questions, alleged that the conduct of Dr A. was
unethical, as he had impugned, without justification, the conduct of
Mr. F's lawyer. When it was noted that in the first-instance
proceedings Mr F. had been represented by the Chief Justice's
brother, the Chief Justice threatened to refer the case to “the
competent authorities”. Furthermore, he dictated a note to this
effect, which read as follows:
“The court is asking Dr A., who himself is
declaring that the date of the hearing at first instance had been
changed when he and his client had already left the courtroom, why he
insisted that the said change of date occurred consequent to a
request by a lawyer. Dr A.'s reply is: 'I deduce so, as there were
two lawyers present: Dr U. and myself.'
... Mrs M.'s lawyer asserts facts and has no problem
hypothesising about the behaviour of another lawyer and the judge,
after he and his client had walked out of the courtroom.”
Dr
A. said a few words in his own defence, but no oral submissions
regarding the merits of the appeal were heard. The Chief Justice
suspended the hearing and went to his chambers. A few minutes later
the lawyers of both parties were called into the Chief Justice's
chambers. Explanations were heard and no further action appears to
have been taken.
By
a judgment of 5 February 1993, the Court of Appeal found against Mrs
M. and reversed the judgment of the Civil Court. It held that
principles of natural justice were not mandatory and could not be
invoked in preliminary proceedings that were essentially conditional
and of a temporary nature. Moreover, the Court of Appeal did not
agree with the issue of fact mentioned in the first-instance
judgment, in respect of the change in date leading to Mrs M.'s
absence at the hearing. In this respect the judgment repeated in part
the note which had been dictated during the hearing – “Mrs
M.'s lawyer asserts facts and has no problem hypothesising about the
behaviour of another lawyer and the judge, after he and his client
had walked out of the courtroom”. The Court of Appeal further
ordered the removal from the records of the case of a report which
supported Mrs M.'s claim, which had been drawn up by the judicial
assistant appointed by the Civil Court.
D. Proceedings before the Civil Court in its
constitutional jurisdiction
On
25 March 1993 Mrs M. instituted proceedings before the Civil Court
(First Hall) in its constitutional jurisdiction. Relying on Article 6
of the Convention, she alleged that the President of the Court of
Appeal (the Chief Justice) lacked objective impartiality and that
this had been manifest in the incident of 12 October 1992. Observing
that the Court of Appeal had denied facts which had already been
proved, she further submitted that her right to a fair trial had been
violated.
Mrs
M. died on 20 January 2002, before her constitutional claim could be
determined. On 22 May 2002 the applicant intervened in the
proceedings before the Civil Court in his capacity as brother of the
plaintiff.
In
a judgment of 29 January 2004, the Civil Court dismissed Mrs M.'s
claim as frivolous and vexatious. Although it noted that the
plaintiff had failed to request the Chief Justice to withdraw from
the case before the pronouncement of the final judgment, it rejected
the Government's plea of non-exhaustion of ordinary remedies and
decided to exercise its constitutional jurisdiction. As to the
merits, it made a thorough analysis of the notions and rights
emanating from Article 6 of the Convention, including equality of
arms, but placed particular emphasis on the requirement of
impartiality of the Civil Court. However, it was unable to find any
link between the incident of 12 October 1992 and the content of the
judgment of 5 February 1993. As confirmed by Dr A. himself, the
incident had been defused; however, this could not have given Mrs M.
or her lawyer any expectation that the Court of Appeal would rule in
her favour. Furthermore, the Court of Appeal was composed of two
other judges, who had not been involved in the incident, and there
had been no doubt that the judgment, which appeared to be
well-reasoned, had been delivered by the bench as a whole.
E. Proceedings before the Constitutional Court
The
applicant appealed to the Constitutional Court.
By
a judgment of 24 October 2005, the Constitutional Court declared the
appeal inadmissible. It reiterated that in accordance with Article
46 § 5 of the Constitution, no appeal lay against a
decision dismissing an application as frivolous and vexatious.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Article
403 of the Civil Code reads as follows:
“(1) Tenements at a lower level are subject in
regard to tenements at a higher level to receive such waters and
materials as flow or fall naturally therefrom without the agency of
man.
(2) It shall not be lawful for the owner of the lower
tenement to do anything which may prevent such flow or fall.
(3) Nor shall it be lawful for the owner of the higher
tenement to do anything whereby the easement of the lower tenement is
rendered more burdensome.”
Article
873 of Title VI, Sub-Title V of the Code of Organisation and Civil
Procedure (“COCP”), regarding warrants of prohibitory
injunction, reads as follows:
“(1) The object of a warrant of prohibitory
injunction is to restrain a person from doing anything whatsoever
which might be prejudicial to the person suing out the warrant.
(2) The court shall not issue any such warrant unless it
is satisfied that such warrant is necessary in order to preserve any
right of the person suing out the warrant, and that prima facie
such person appears to possess such right.”
Under
Maltese law, as it stood at the time of the present case, a judge
could be challenged or could abstain from hearing a case if one of
the parties was represented by the former's son or daughter, spouse
or ascendant. Nothing prevented a judge from sitting in a case if the
representative in issue was his or her brother or nephew. The
pertinent articles of the COCP, in so far as relevant, read as
follows:
Article 733
“The judges may not be challenged, nor may they
abstain from sitting in any cause brought before the court in which
they are appointed to sit, except for any of the reasons hereinafter
mentioned.”
Article 734
“(1) A judge may be challenged or abstain from
sitting in a cause -
...
(e) if he, or his spouse, is directly or indirectly
interested in the event of the suit;
(f) if the advocate or legal procurator pleading before
a judge is the son or daughter, spouse or ascendant of the said
judge;”
The
relevant Article of the COCP was amended in 2007 to include another
ground:
“(g) if the advocate or legal procurator pleading
before a judge is the brother or sister of the said judge;”
Article
39 (2) of the Maltese Constitution, in so far as relevant, reads as
follows:
“Any court or other adjudicating authority
prescribed by law for the determination of the existence or the
extent of civil rights or obligations shall be independent and
impartial;...”
III. COMPARATIVE AND EUROPEAN UNION LAW AND PRACTICE
A. National systems
On the basis of the material available to the Court in
respect of the legislation of a
relevant number of Member States of the Council of Europe, it appears
that there is widespread consensus on the applicability of Article 6
safeguards to interim measures, including injunction proceedings.
This conclusion is inferred from constitutional texts, codes of civil
procedure and domestic case-law. In the majority of States (Albania,
Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Cyprus, Estonia,
France, Germany, Hungary, Ireland, Italy, The Netherlands, Poland,
Russia, San Marino, Serbia, Spain, Sweden, Switzerland and the United
Kingdom) legislation suggests that Article 6 procedural safeguards
(particularly the impartiality requirement) apply to interim and
injunction proceedings either because the legislation makes no
distinction as to the stage or type of proceedings to which the
safeguards apply (such as the Constitutions of Spain, Italy, Greece
and Switzerland), or because specific provisions governing interim
measures reflect in some way the main safeguards embedded in Article
6 – as for example,
legislation which
specifies that provisions governing proceedings on the merits apply
mutatis mutandis
to injunction proceedings (such as Poland), or will do so, unless
otherwise stipulated (such as Germany). The Belgian courts have
explicitly dealt with the issue (see the judgments of the Court of
Cassation in the cases of Greenpeace
and Global
Action in the Interest of Animals,
of 14 January 2005) and held that Article 6 of the Convention was in
principle applicable to interim proceedings (référé).
B. European Union
Article
47 of the Charter of Fundamental Rights of the European Union (“EU”)
guarantees the right to a fair trial. Unlike the Convention's Article
6, the provision of the Charter does not confine this right to
disputes relating to “civil rights and obligations” or to
“any criminal charge” and does not refer to the
“determination” of such. In Denilauler/Couchet Frères
(ECJ, Case C 125/79, 21 May 1980) the European Court of Justice
(“ECJ”) held that provisional measures given ex parte
without hearing the defendant could not be recognised according to
its case-law. This implies that such safeguards should apply also
outside the context of final decisions.
THE LAW
The
applicant complained that the Court of Appeal had lacked impartiality
and that Mrs M. had consequently been denied the opportunity to make
submissions, in breach of her right to a fair hearing as provided for
in Article 6 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
The
Government contested that argument.
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
The
Government contested the admissibility of the application on a number
of grounds under Articles 34 and 35 § 1 of the Convention.
Article 34
provides:
“The Court may receive applications from any
person ... claiming to be the victim of a violation by one of the
High Contracting Parties of the rights set forth in the Convention or
the Protocols thereto. ... ”
Article
35 § 1 states:
“The Court may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law, and within a period of six
months from the date on which the final decision was taken.”
A. Victim status
1. The Chamber's conclusion
The
Chamber, which raised the matter of its own motion, noted that Mrs
M., the direct victim, died while pursuing domestic remedies,
implying that she intended to complain about the alleged breach
before the Court. It further noted that after the direct victim's
death the domestic courts did not reject the applicant's request to
intervene in the constitutional proceedings and later to appeal in
his capacity as brother of the plaintiff. Moreover, the Court had
discretion to recognise the victim status of an applicant and to
continue examining an application when it concerned a matter of
general interest. The Chamber considered that the impossibility under
domestic law to challenge a judge on the basis of his or her
relationship with a party's advocate was a matter of sufficient
general interest. Having further observed that the Government had not
filed an objection in this respect, the Chamber concluded that the
applicant had standing to introduce the present application.
2. The Government's submissions
The
Government submitted that the applicant did not have victim status in
so far as he was not a party to the proceedings complained of. The
only direct victim was his sister, who had died during the domestic
constitutional proceedings. The Government argued that it was
irrelevant that the applicant was permitted to intervene in the
latter proceedings in his sister's stead. According to Maltese law,
this was standard practice based on the civil-law principle of
succession whereby an heir succeeds to the legal personality of the
deceased, irrespective of the heir's victim status for the purposes
of the Convention.
Moreover,
the Government contested the Chamber's interpretation regarding the
Court's discretion to grant victim status on the basis of “sufficient
general interest”. This in their view was not in conformity
with Article 34 of the Convention and would verge on acceptance of an
actio popularis. However, even if this were so, in the present
case there was no relevant defect in the law justifying the exercise
of the alleged discretion by the Chamber.
3. The applicant's submissions
The
applicant first submitted that it was an abuse of proceedings and
contrary to the principle of subsidiarity for the Government to raise
a novel argument before the Court at this stage of the proceedings.
Since they had not contested this matter before the domestic courts
or the Chamber, they should be estopped from doing so now.
In
any case, the applicant submitted that the direct victim had died
while pursuing domestic remedies, without which she could not apply
to the Court. Indeed, after Mrs M.'s death the national courts had
accepted the applicant's locus standi in constitutional
proceedings in accordance with domestic law. Moreover, once the
applicant became a party to the domestic proceedings he was made to
bear the costs of the constitutional case instituted by his sister
and had thus also suffered financial prejudice. According to the
applicant, this status once acquired was irreversible.
Lastly,
the applicant submitted that there was a moral dimension to the
application which raised serious questions affecting the
interpretation or application of the Convention and a serious issue
of general importance. Thus, it could not be said that the general
interest criterion referred to by the Chamber did not apply to the
present case.
4. Submissions of the Third Party Government
The Government of the Czech Republic submitted that it was acceptable
for the Court to grant locus standi to the applicant's next of
kin where the applicant died during the proceedings before the Court.
However, if the direct victim died before lodging the application,
victim status should only be recognised exceptionally. This would be
so in cases where the alleged violation prevented the direct victim
himself from asserting his claims (Bazorkina v. Russia,
no. 69481/01, § 139, 27 July 2006) or where persons
aspiring to have victim status, usually the heirs, were themselves
affected by what were claimed to be the negative consequences of the
alleged violation (Ressegatti v. Switzerland, no. 17671/02,
§ 25, 13 July 2006).
Moreover,
the Court had no discretion to grant victim status on the ground that
the complaint related to an issue of general interest. However, it
did have discretion under Article 37 § 1 of the Convention to
continue the examination of an application even in the absence of a
person wishing to complete the battle embarked upon by the deceased
applicant. Applying this discretion to proceedings initiated by a
next of kin, who did not fulfil the exceptional criteria mentioned
above, would amount to allowing the Court to choose of its own motion
which applications would be examined.
5. The Court's assessment
In
order to be able to lodge a petition in pursuance of Article 34, a
person, non-governmental organisation or group of individuals must be
able to claim “to be the victim of a violation ... of the
rights set forth in the Convention ...”. In order to claim to
be a victim of a violation, a person must be directly affected by the
impugned measure (see Burden v. the United Kingdom [GC], no.
13378/05, § 33, 29 April 2008).
This
criterion is not to be applied in a rigid, mechanical and inflexible
way (see Karner v. Austria, no. 40016/98, § 25, ECHR
2003-IX). The Court has acknowledged that human rights cases before
it generally also have a moral dimension and persons near to an
applicant may thus have a legitimate interest in seeing to it that
justice is done even after the applicant's death. This holds true all
the more if the leading issue raised by the case transcends the
person and the interests of the applicant and his heirs in that it
may affect other persons (see Malhous v. the Czech Republic [GC]
(dec.), no. 33071/96, ECHR 2000 XII).
The Court has discretion, in particular circumstances, to find that
respect for human rights as defined in the Convention and the
Protocols thereto requires a continuation of the examination of the
case (Article 37 § 1 in fine of the Convention). This
discretion is dependent on the existence of an issue of general
interest (see Karner, cited above, § 27, and Marie-Louise
Loyen and Bruneel v. France, no. 55929/00, § 29, 5 July
2005). The latter may arise in particular where an
application concerns
the legislation or a legal system or practice of
the defendant State (see
Altun v. Germany, Decisions and Reports no. 36, § 32,
and, mutatis mutandis, Karner, cited above,
§§ 26, 28).
The
Court normally permits the next of kin to pursue an application
provided he or she has sufficient interest, where the original
applicant has died after the introduction of the application before
the Court (see Malhous [GC] (dec.), cited above). However, the
situation varies where the direct victim dies before bringing his or
her complaint before the Court (see Fairfield v. the United
Kingdom (dec.), no. 24790/04, ECHR 2005 VI).
The
Court interprets the concept of “victim” autonomously and
irrespective of domestic concepts such as those concerning an
interest or capacity to act (see Sanles Sanles v. Spain,
(dec.), no. 48335/99, ECHR 2000 XI), even though the
Court should have regard to the fact that an applicant had been a
party to the domestic proceedings. Regarding complaints under Article
6, the Court has been prepared to recognise the standing of a
relative either when the complaints were of a general interest and
the applicants, as heirs, had a legitimate interest in pursuing the
application (see Loyen, cited above, § 29, and,
conversely, Biç and Others v. Turkey, no. 55955/00,
§ 23, 2 February 2006) or on the basis of the direct effect
on the applicant's patrimonial rights (see Ressegatti, cited
above, § 25).
In
the present case, the Court notes that the direct victim died during
the constitutional proceedings, which lasted over ten years at first
instance and were necessary to exhaust domestic remedies. The
constitutional jurisdictions did not reject the applicant's
request to intervene in the proceedings in his capacity as brother
and heir of the plaintiff, nor did they refuse to entertain his
appeal. Furthermore, he was made to bear the costs of the case
instituted by his sister and can thus be considered to have a
patrimonial interest to recover the costs.
Moreover,
the Court considers that the question of an alleged defect in the
relevant law which made it impossible to challenge a judge on the
basis that the lawyer appearing before him was his nephew or that the
issue at stake in the case related to the conduct of his brother is a
matter which raises issues concerning the fair administration of
justice and thus an important question relating to the general
interest.
In
conclusion, the Grand Chamber, like the Chamber, considers that for
both of the foregoing reasons, the applicant has standing to
introduce the present application. The Government's objection is thus
dismissed.
B. Non-exhaustion of domestic remedies
1. The Chamber's conclusion
The
Chamber considered that, according to Maltese law and with reference
to the Court of Appeal hearing of 12 October 1992, there was no
specific ground on which to challenge the judge on the basis that he
was the uncle of one of the advocates appearing before him and
consequently Mrs M. could not have asked for the judge's withdrawal.
Moreover, the applicant had brought the complaint before the Civil
Court in its constitutional jurisdiction after the incident in
question, and the latter had rejected the Government's objection of
failure to exhaust ordinary remedies and dealt with the merits of the
case.
2. The parties' submissions
The Government submitted that during the hearing of 12 October 1992
Mrs M. did not complain that she had not been given an opportunity to
make submissions, nor did she lodge a request to make further
submissions. Similarly, she did not challenge the judge at any stage
of the proceedings and during the same proceedings she failed to
raise before the relevant courts the issue under Article 6 of the
Convention that her right to an impartial tribunal was “likely”
to be infringed. Mrs M. never requested that the Chief Justice
withdraw from her case, a plea which would not have been decided by
the Chief Justice alone, but by the three judges sitting in the case.
According to the Government, Mrs M. could have made such a request
under Article 734 (1) (e) of the COCP (see paragraph 28 above) which
reflected the nemo iudex in causa propria rule in general. The
Government made reference to various domestic decisions in which the
courts had repeatedly attributed overriding importance to the fact
that justice should not only be done but be seen to be done and that
this had been an acknowledged legitimate ground for the withdrawal of
or challenge to a judge. However, at the hearing before the Grand
Chamber the Government admitted that there had been no domestic
case-law proving that a challenge under Article 734 (1) (e) of the
COCP in such a case as the present one would have been successful.
The
applicant made no submissions on this point.
3. The Court's assessment
55. In accordance with Article 35 §
1 of the Convention, the Court may only deal with an issue after all
domestic remedies have been exhausted. The purpose of this rule is to
afford the Contracting States the opportunity of preventing or
putting right the violations alleged against them before those
allegations are submitted to the Court (see, among other authorities,
Selmouni v. France
[GC], no. 25803/94, § 74, ECHR 1999-V). Thus, the complaint
submitted to the Court must first have been made to the appropriate
national courts, at least in substance, in accordance with the formal
requirements of domestic law and within the prescribed time-limits
(see Zarb Adami v. Malta
(dec.), no. 17209/02, 24 May 2005). However, the rule of
exhaustion of domestic remedies requires an applicant to have normal
recourse to remedies within the national legal system which are
available and sufficient to afford redress in respect of the breaches
alleged. The existence of the remedies in question must be
sufficiently certain not only in theory but in practice, failing
which they will lack the requisite accessibility and effectiveness.
There is no obligation to have recourse to remedies which are
inadequate or ineffective (see Raninen
v. Finland, 16 December 1997, §
41, Reports of Judgments and Decisions
1997 VIII).
The
Grand Chamber, like the Chamber, considers that the applicant could
not have challenged the Chief Justice under Article 734 of the COCP
(see paragraph 28 above), since at the time a nephew-uncle
relationship between advocate and judge was not amongst the listed
grounds for challenge. Article 734 (1) (f) specifically referred to
certain family relationships (see paragraph 28 above). However, it
excluded siblings or other more distant relatives, who would have
been mentioned had this been the legislator's intention. The fact
that the law is silent as regards these relationships does not
support the argument that they can be assumed to be covered by the
relevant legal provision in the absence of specific case-law to this
effect. Nor has it been shown by the Government that Article 734
(1) (e), a more general provision, would have provided the basis
for a remedy. Moreover, in this respect, the Government conceded that
there had been no domestic case-law showing that a challenge under
Article 734 (1) (e), in a case such as the present one, had ever been
successful. It follows that in the present case the applicant could
not reasonably have been expected to take this course of action.
Most
importantly, the Court notes that, following the impugned judgment,
Mrs M., succeeded by the applicant, instituted constitutional
proceedings before the Civil Court (First Hall) alleging a breach of
the right to a fair trial as guaranteed by Article 6 of the
Convention in view of the Court of Appeal's lack of impartiality and
the lack of opportunity to make submissions before it. The applicant
subsequently appealed to the Constitutional Court against the Civil
Court's judgment rejecting his claim. The Court considers that, in
raising this plea before the domestic constitutional jurisdictions,
which rejected the Government's objection of non-exhaustion of
ordinary remedies and did not reject the claim on procedural grounds
but examined the substance of it, the applicant made normal use of
the remedies which were accessible to him and which related, in
substance, to the facts complained of at the European level (see,
mutatis mutandis, Zarb Adami (dec.), cited above).
The mere fact that the applicant could have attempted
to remedy the alleged violation in alternative ways throughout the
different stages of the proceedings or that he waited till the end of
the proceedings to make such complaint, as was permissible under
domestic law, does not alter this conclusion. Under the established
case-law, when a remedy has been pursued, use of another remedy which
has essentially the same objective is not required (see, inter
alia, Kozacıoğlu v. Turkey [GC], no.
2334/03, § 40, 19 February 2009).
It
follows that the application cannot be rejected for non-exhaustion of
domestic remedies and that the Government's objection is therefore
dismissed.
C. Incompatibility ratione materiae
1. The Chamber's conclusion
Distinguishing
between the injunction proceedings arising out of the main action and
the proceedings complained of, the Chamber considered the latter as
“post-injunction proceedings”, that is, a new and
distinct set of proceedings by which the flaws of the interim
injunction decision could be contested. Both the Court of First
Instance and the Court of Appeal had examined the merits of Mrs M.'s
complaint and therefore determined the dispute over “the right
to be heard” in the injunction proceedings. Thus, the applicant
could claim on at least arguable grounds that the proceedings were
covered by Article 6. Moreover, when the applicant eventually
complained of the unfairness of these “post-injunction
proceedings”, the constitutional jurisdiction looked at the
merits of the applicant's complaint regarding the impartiality of the
Court of Appeal and, consequently, recognised the applicability of
Article 6 to these proceedings. The Chamber recalled that according
to the Court's judgment in Vilho Eskelinen v. Finland
([GC], no. 63235/00, 19 April 2007, § 61) independently of the
Court's autonomous application of Article 6, its applicability would
be recognised by the Court, if the domestic system had recognised it
formerly: “if a domestic system bars access to a court, the
Court will verify that the dispute is indeed such as to justify the
application of the exception to the guarantees of article 6. If it
does not, then there is no issue and Article 6 § 1 will apply.”
Furthermore, the concept of a “civil right” under
Article 6 § 1 could not be construed as limiting an enforceable
right in domestic law within the meaning of Article 53 of the
Convention (see Okyay and Others v. Turkey, no. 36220/97,
§ 68, ECHR 2005 VII). It followed that Article 6 was
applicable to the present case.
2. The Government's submissions
The
Government submitted that, as evidenced by the documents submitted to
the Grand Chamber, they had contested the applicability of Article 6
during the domestic proceedings, albeit not in their initial
submissions before the domestic court. However, under domestic law,
they were not estopped from putting forward this objection at a later
stage of the domestic proceedings. Moreover, the only reason why the
domestic court had not dealt with this issue was that it had accepted
their preliminary objection based on the argument that the case was
frivolous and vexatious.
The
proceedings complained of concerned the allegation that the right to
be heard had been breached during injunction proceedings. Firstly,
the latter were not covered by Article 6 as they were preliminary
precautionary measures without any determination of the merits of any
right or obligation claimed. Whether or not a claimant was successful
in obtaining an injunction, he or she could institute the appropriate
action to put forward his or her claim on the merits. It followed
that any action arising from injunction proceedings did not also
determine any rights or obligations. Even if, according to procedural
law, these proceedings had to be instituted by means of a separate
action, they were a continuation of injunction proceedings,
equivalent to an appeal against the injunction, and therefore could
not in any way determine the merits of the initial claim.
Moreover,
the right to be heard in injunction proceedings was not established
in Maltese law. According to domestic case-law, such guarantees could
be done away with in injunction proceedings in view of the particular
requirements, for example speediness, of such an action. The fact
that the Civil Court (First Hall) had found in favour of Mrs M.,
stating that a right to be heard existed when injunction proceedings
were set down for a hearing, did not suffice to give the applicant an
arguable claim and make Article 6 applicable to such proceedings,
since this did not amount to a determination of civil rights.
The
only civil right arising in the various sets of proceedings in the
present case was the right to hang out the washing, which was the
central part of the merits of the original claim that was
conclusively decided on 6 March 1992, no appeal having been
lodged against it. Indeed, as stated by the Court of Appeal, the
arguments on the right to be heard in injunction proceedings could
easily have been submitted when defending the substantive action and
that was what economy of proceedings demanded.
With
respect to the Chamber's interpretation of Eskelinen and
Article 53 of the Convention, the Government shared the view of the
three judges in their dissenting opinion attached to the Chamber
judgment and the intervener's observations.
3. The applicant's submissions
The
applicant submitted that once a warrant of prohibitory injunction was
issued, it continued to have effect until the final outcome of the
proceedings, unless it was revoked before that date. Thus, the
injunction proceedings in which the warrant was granted affected the
civil rights of the parties, albeit provisionally, for a certain
period of time. Thus, considering the far reaching effects resulting
from such a warrant, Article 6 of the Convention applied, especially
in the Maltese context.
However,
the proceedings complained of were distinct from the injunction
proceedings and also covered by Article 6. They constituted formal ad
hoc proceedings instituted by writ of summons followed by an
appeal petition and concluded by a judgment at first instance and a
judgment on appeal. Indeed they were listed for hearing before a
different court and not before the judge who decided the injunction
proceedings. The civil right at issue in these proceedings was “the
right to be heard” and the nature of the case was not different
from that of any other case before the ordinary domestic courts.
The
applicant submitted that the fact that the original proceedings,
regarding the right to hang out the washing, had been concluded on 6
March 1992 did not render the judgment complained of with no
practical effect. Indeed, it had been Mr F. who had lodged the appeal
and who had not sought to withdraw it once the merits of the original
complaint had been determined, thus reaffirming the utility and
separate nature of this action. Moreover, since the Government had
not correctly submitted this plea in domestic proceedings nor had the
domestic courts raised it of their own motion, the Government should
not be allowed to raise the plea now, otherwise they would be in a
more favourable position than the applicant, who had to exhaust all
his claims before the domestic courts.
The
applicant submitted that the Eskelinen judgment need not be
relied on in the present case since Article 6 was in any case
applicable for the above reasons. Moreover, he agreed with the
Chamber's interpretation of Article 53 of the Convention, whereby the
protection of human rights in any area could not be lower before the
Court than before the domestic courts.
4. Submissions of the Third Party Government
The
Government of the Czech Republic submitted that the Court should
adhere to its case-law that Article 6 did not apply to proceedings
concerning interim measures because they were only provisional
determinations. They submitted that interim measures could not be
seen as independent proceedings but only within the context of the
main proceedings. Accordingly, a departure from the Court's
jurisprudence in the matter could be accepted in so far as the
provisional aspect no longer constituted a valid reason for “that
part of the proceedings” not to be covered by Article 6. It
followed that Article 6 could be applicable to interim measures;
however, a violation would arise only where any shortcoming in the
interim measure proceedings rendered the entire proceedings unfair.
It followed that it would be difficult to imagine the finding of a
violation where the main proceedings had been definitively disposed
of.
Moreover,
Article 6 should be applicable only on condition that the measure
sought concerned, albeit provisionally, the determination, the
existence, scope or conditions of civil rights and obligations. The
same held for proceedings ancillary to the interim measure
proceedings, though it would be difficult for a procedural right
(such as the right to be heard as in the present case) to qualify as
a civil right.
They
further submitted that the judgment in Vilho Eskelinen was
limited to proceedings between civil servants and the State in
relation to access to court. Moreover, giving protection at domestic
level did not mean that Article 6 was applicable and whether or not
applicability was contested in domestic proceedings was an irrelevant
factor that should not be considered by the Court.
In
respect of Article 53 of the Convention, the Czech Government
submitted that this provision was put in place to prevent the
standard attained in the protection of human rights from being
lowered on the ground that a certain right was not guaranteed by the
Convention. They reiterated that there was nothing preventing
national courts from going beyond the standards established by the
Convention.
5. The Court's assessment
(a) General principles
The
Court reiterates that for Article 6 § 1 in its “civil”
limb to be applicable, there must be a dispute (“contestation”
in the French text) over a “civil right” which can be
said, at least on arguable grounds, to be recognised under domestic
law, irrespective of whether it is also protected under the
Convention. The dispute must be genuine and serious; it may relate
not only to the actual existence of a right but also to its scope and
the manner of its exercise; and, finally, the result of the
proceedings must be directly decisive for the right in question,
mere tenuous connections or remote consequences not being
sufficient to bring Article 6 § 1 into play (see, inter alia,
Mennitto v. Italy [GC], no. 33804/96, § 23, ECHR 2000 X;
and Gülmez v. Turkey, no. 16330/02, § 28, 20 May
2008). The character of the legislation which governs how the matter
is to be determined (civil, commercial, administrative law, and so
on) and that of the authority which is invested with jurisdiction in
the matter (ordinary court, administrative body, and so forth) are
therefore of little consequence (see J.S. and A.S. v. Poland,
no. 40732/98, § 46, 24 May 2005).
Preliminary
proceedings, like those concerned with the grant of an interim
measure such as an injunction, are not normally considered to
determine civil rights and obligations and do not therefore normally
fall within the protection of Article 6 (see, inter alia,
Wiot v. France, (dec.), no. 43722/98, 15 March 2001; APIS
a.s. v. Slovakia, (dec.), no. 39794/98, 13 January 2002;
Verlagsgruppe News GMBH v Austria, (dec.), no. 62763/00,
16 January 2003; and Libert v Belgium, (dec.), no. 44734/98,
8 July 2004). It follows that in length-of-proceedings cases,
the Court has applied Article 6 only from the initiation of the case
on the merits and not from the preliminary request for such measures
(see Jaffredou v. France (dec.), no. 39843/98,15 December
1998, and Kress v. France [GC], no. 39594/98, § 90, ECHR
2001 VI). Nevertheless, in certain cases, the Court has applied
Article 6 to interim proceedings, notably by reason of their being
decisive for the civil rights of the applicant (see Aerts v.
Belgium, 30 July 1998, Reports 1998 V, and Boca
v. Belgium, no. 50615/99, ECHR 2002 IX). Moreover, it has
held that an exception is to be made to the principle that Article 6
will not apply when the character of the interim decision
exceptionally requires otherwise because the measure requested was
drastic, disposed of the main action to a considerable degree, and
unless reversed on appeal would have affected the legal rights of the
parties for a substantial period of time (see Markass Car Hire Ltd
v. Cyprus, (dec.), no. 51591/99, 23 October 2001).
(b) Classification of the proceedings in
the present case
The
present case deals with four tiers of proceedings, i) the proceedings
granting the injunction; ii) the set of proceedings in which the
fairness of the injunction was contested (the appeal against which is
the subject of the complaint before this Court); iii) the main
proceedings regarding Mr F.'s claim; and iv) the set of
constitutional proceedings.
Unlike
the Chamber, the Grand Chamber considers that it is more appropriate
to take a global approach when considering the proceedings. A request
for an injunction was granted as a preliminary measure which was
followed by the main action on the merits of the case. Meanwhile,
another set of proceedings was instituted to contest the fairness of
the injunction granted. The Grand Chamber, like the Government, views
the latter as analogous to what in other jurisdictions would classify
as an appeal against the injunction. It has not been contested that
at the time of the present case, the Maltese legal system did not
allow for an appeal against such an injunction. It was however
possible for injunctions to be impugned in a “fresh” set
of proceedings which allowed for two levels of jurisdiction, namely,
the Civil Court (First Hall) in its ordinary jurisdiction and the
Court of Appeal. Thus, the injunction proceedings and the consequent
challenge to their fairness cannot be seen as distinct from each
other. They were one set of proceedings connected to the merits of
the cause that fell to be determined in the main action. The fact
that they involved three levels of jurisdiction does not mean that
they should be regarded as anything other than traditional injunction
proceedings. Accordingly, the Grand Chamber will decide on the
applicability of Article 6 to the present case on this basis.
(c) Whether there is a need for a
development of the case-law
The
Court observes that there is widespread consensus amongst Council of
Europe member States, which either implicitly or explicitly provide
for the applicability of Article 6 guarantees to interim measures,
including injunction proceedings (as explained in paragraph
31 above). Similarly,
as can be seen from its case-law (see paragraph 32 above), the Court
of Justice of the European Communities (“ECJ”) considers
that provisional measures must be subject to the guarantees of a fair
trial, particularly to the right to be heard.
The
exclusion of interim measures from the ambit of Article 6 has so far
been justified by the fact that they do not in principle determine
civil rights and obligations. However, in circumstances where many
Contracting States face considerable backlogs in their overburdened
justice systems leading to excessively long proceedings, a judge's
decision on an injunction will often be tantamount to a decision on
the merits of the claim for a substantial period of time, even
permanently in exceptional cases. It follows that, frequently,
interim and main proceedings decide the same “civil rights or
obligations” and have the same resulting long lasting or
permanent effects.
Against
this background the Court no longer finds it justified to
automatically characterise injunction proceedings as not
determinative of civil rights or obligations. Nor is it convinced
that a defect in such proceedings would necessarily be remedied at a
later stage, namely, in proceedings on the merits governed by Article
6 since any prejudice suffered in the meantime may by then have
become irreversible and with little realistic opportunity to redress
the damage caused, except perhaps for the possibility of pecuniary
compensation.
The Court thus considers that, for the above reasons,
a change in the case-law is necessary. While it is in the interests
of legal certainty, foreseeability and equality before the law that
the Court should not depart, without good reason, from precedents
laid down in previous cases, a failure by the Court to maintain a
dynamic and evolutive approach would risk rendering it a bar to
reform or improvement (see, mutatis mutandis, Mamatkulov
and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 121,
ECHR 2005-I, and Vilho Eskelinen [GC], cited above, §
56). It must be remembered that the Convention is designed to
“guarantee not rights that are theoretical or illusory but
rights that are practical and effective” (see, inter alia,
Folgerø and Others v. Norway [GC], no. 15472/02, §
100, ECHR 2007 ..., and Salduz v. Turkey [GC], no.
36391/02, § 51, 27 November 2008).
In
this light, the fact that interim decisions which also determine
civil rights or obligations are not protected by Article 6 under the
Convention calls for a new approach.
(d) The new approach
As previously noted, Article 6 in its civil “limb”
applies only to proceedings determining civil rights or obligations.
Not all interim measures determine such rights and obligations and
the applicability of Article 6 will depend on whether certain
conditions are fulfilled.
First,
the right at stake in both the main and the injunction proceedings
should be “civil” within the autonomous meaning of that
notion under Article 6 of the Convention (see, inter alia,
Stran Greek Refineries and Stratis Andreadis v. Greece, 9
December 1994, § 39, Series A no. 301 B; König v.
Germany, 28 June 1978, §§ 89-90, Series A no. 27;
Ferrazzini v. Italy [GC], no. 44759/98, §§ 24-31,
ECHR 2001-VII; and Roche v. the United Kingdom [GC], no.
32555/96, § 119, ECHR 2005 X).
Second,
the nature of the interim measure, its object and purpose as well as
its effects on the right in question should be scrutinised. Whenever
an interim measure can be considered effectively to determine the
civil right or obligation at stake, notwithstanding the length of
time it is in force, Article 6 will be applicable.
However,
the Court accepts that in exceptional cases - where, for example, the
effectiveness of the measure sought depends upon a rapid
decision-making process - it may not be possible immediately to
comply with all of the requirements of Article 6.
Thus, in such specific cases,
while the independence and impartiality of the tribunal or the judge
concerned is an indispensable and inalienable safeguard in such
proceedings, other procedural safeguards may apply only to the extent
compatible with the nature and purpose of the interim proceedings at
issue. In any
subsequent proceedings before the Court, it will fall to the
Government to establish that, in view of the purpose of the
proceedings at issue in a given case, one or more specific procedural
safeguards could not be applied without unduly prejudicing the
attainment of the objectives sought by the interim measure in
question.
(e) Applicability of Article 6 in the
present case
87. The
Court notes that the substance of the right at stake in
the main proceedings concerned the use by neighbours of property
rights in accordance with Maltese law, and therefore a right of a
civil character according to both domestic law and the Court's
case-law (see Ferrazzini v. Italy [GC], cited above, §
27, and Zander v. Sweden, 25 November 1993, § 27,
Series A no. 279 B). The purpose
of the injunction was to determine, albeit for a limited period, the
same right as the one being contested in the main proceedings, and
which was immediately enforceable. It
follows that the injunction proceedings in the present case fulfil
the criteria for Article 6 to be applicable and no reasons have been
established by the Government to limit the scope of its application
in any respect (see paragraph 86 above).
88. The
Court observes that the applicant's complaint concerned appeal
proceedings which ended with a judgment of 5 February 1993, at a time
when the merits of the main claim had already been determined by a
judgment of 6 March 1992. Consequently, the Court is aware that at
the time of the contested judgment the dispute at issue had actually
been resolved. However, in 1990, when the proceedings were
instituted, the merits of the claim had not yet been determined, and
Article 6 was, in principle, applicable as has been established
above. The Court sees no reason why Article 6 should not have
continued to apply to those same proceedings at a later stage.
Moreover, it notes that the continuation of those proceedings was not
due to any fault on the part of Mrs M. since it was Mr F. who
appealed.
89. It
follows that Article 6 is applicable to the proceedings complained of
and that the Government's objection must therefore be dismissed.
II. ALLEGED VIOLATION OF
ARTICLE 6 § 1 OF THE CONVENTION
A. The Chamber's conclusion
The Chamber was not persuaded that there was
sufficient evidence that the Chief Justice displayed personal bias.
However, it found that the close family ties between the opposing
party's advocate and the judge sufficed to justify objectively the
applicant's fears that the presiding judge lacked impartiality and
that the facts of the present case did nothing to dispel the
applicant's concerns. It therefore found a violation of Article 6 § 1
(impartiality of tribunal) and held it unnecessary to examine
separately the complaint regarding the equality-of-arms principle.
B. The applicant's submissions
The
applicant submitted that the present case reflected both subjective
and objective bias on the part of the Chief Justice, contrary to
Article 6 of the Convention. The Chief Justice had been biased on
account of the fact that his brother had been the lawyer of the
opposing party during the injunction proceedings. His bias was
evident from the incident of 12 October 1992, which left both
the other judges on the panel speechless, as well as from the final
judgment. The latter judgment found against Mrs M. and ordered
the removal from the records of a report drawn up by the judicial
assistant which had been in favour of Mrs M. and made reference to
her legal counsel's actions vis-à-vis the brother of
the Chief Justice (see paragraph 20 above). Indeed, since the
personal impartiality of a judge was presumed until there was proof
to the contrary, the applicant had had no reason to request the
judge's withdrawal until the above events occurred. However, the
Chief Justice should have known that he himself would have brought up
the issue related to his brother and should therefore have withdrawn
of his own motion. Moreover, the applicant opined that the Chief
Justice's behaviour during the incident and the sibling relationship
were not separate issues but reflected two sides of the same coin.
C. The Government's submissions
The
Government submitted that no issue as to impartiality arose in the
present case. Had legal counsel been concerned about the alleged
bias, the obvious course of action would have been to request the
judge to withdraw, which he had not done. On the contrary, legal
counsel had accepted that the incident had been defused after meeting
the Chief Justice in chambers. Indeed, at the domestic level the
applicant had not based his allegation of a lack of fair hearing, on
grounds of the alleged denial of his right to make submissions, on
the family relationships of the Chief Justice; that connection had
only been made before this Court. Moreover, the Court of Appeal
judgment did not disclose any bias on the part of the Chief Justice
and even if it did, this could not give rise to ex post facto
concerns. The Court of Appeal was impartial within the meaning of
Article 6 § 1 of the Convention notwithstanding the Chief
Justice's family ties with the lawyers of Mrs M.'s opponent.
D. The Court's assessment
1. General principles
Impartiality
normally denotes the absence of prejudice or bias and its existence
or otherwise can be tested in various ways. According to the Court's
constant case-law, the existence of
impartiality for the purposes of Article 6
§ 1
must be determined according to a subjective test where regard
must be had to the personal conviction and behaviour of a particular
judge, that is, whether the judge
held any personal prejudice or bias in a
given case; and also according to an objective test, that is to say
by ascertaining whether the tribunal itself and, among other
aspects, its composition, offered sufficient guarantees to exclude
any legitimate doubt in respect of its impartiality (see, inter
alia, Fey v. Austria,
24 February 1993, Series A no. 255, §§ 27, 28 and 30,
and Wettstein v. Switzerland,
no. 33958/96, § 42, ECHR 2000-XII).
As
to the subjective test, the principle that a tribunal shall be
presumed to be free of personal prejudice or partiality is
long-established in the case-law of the Court (see, for example,
Kyprianou v. Cyprus [GC], no. 73797/01, § 119,
ECHR 2005 ...). The Court has held that
the personal impartiality of a judge
must be presumed until there is proof to the contrary (see Wettstein,
cited above, § 43). As regards the type of proof
required, the Court has, for example, sought to ascertain whether a
judge has
displayed hostility or ill-will for personal reasons (see De
Cubber v. Belgium, 26 October 1984, Series A no. 86,
§ 25).
In
the vast majority of cases raising impartiality issues the Court has
focused on the objective test. However, there is no watertight
division between subjective and objective impartiality since the
conduct of a judge
may not only prompt objectively held misgivings as to impartiality
from the point of view of the external observer (objective test) but
may also go to the issue of his or her personal conviction
(subjective test) (see Kyprianou, cited above, § 119).
Thus, in some cases where it may be difficult to procure evidence
with which to rebut the presumption of the judge's subjective
impartiality, the requirement of objective
impartiality provides a further
important guarantee (see Pullar v. the United Kingdom, 10 June
1996, Reports 1996-III, § 32).
As
to the objective test, it must be determined whether, quite apart
from the judge's conduct, there are ascertainable facts which may
raise doubts as to his impartiality. This implies that, in deciding
whether in a given case there is a legitimate reason to fear that a
particular judge or a body sitting as a bench lacks impartiality, the
standpoint of the person concerned is important but not decisive.
What is decisive is whether this fear can be held to be objectively
justified (see Wettstein, cited
above, § 44, and Ferrantelli and
Santangelo v. Italy, 7 August 1996, Reports
1996-III, § 58).
The objective test mostly concerns hierarchical or other links
between the judge and other actors in the proceedings (see court
martial cases, for example, Miller and Others v. the United
Kingdom, nos. 45825/99, 45826/99 and 45827/99, 26 October 2004;
see also cases regarding the dual role of a judge, for example,
MeZnarić v. Croatia, no. 71615/01, 15 July
2005, § 36 and Wettstein, cited above, § 47, where
the lawyer representing the applicant's opponents subsequently judged
the applicant in a single set of proceedings and overlapping
proceedings respectively) which objectively justify misgivings as to
the impartiality of the tribunal, and thus fail to meet the
Convention standard under the objective test (see Kyprianou, cited
above, § 121). It must therefore be
decided in each individual case whether the relationship in question
is of such a nature and degree as to indicate a lack of impartiality
on the part of the tribunal (see Pullar,
cited above, §
38).
In
this respect even appearances may be of a certain importance or, in
other words, “justice must not only be done, it must also be
seen to be done” (see De Cubber,
cited above, § 26). What is at stake is the confidence which the
courts in a democratic society must inspire in the public. Thus, any
judge in respect of whom there is a legitimate reason to fear a lack
of impartiality must withdraw (see
Castillo Algar v. Spain,
28 October 1998, Reports
1998-VIII, § 45).
Moreover,
in order that the courts may inspire in the public the confidence
which is indispensable, account must also be taken of questions of
internal organisation (see Piersack, cited above, § 30
(d)). The existence of national procedures for ensuring
impartiality, namely rules regulating the withdrawal of judges, is a
relevant factor. Such rules manifest the national legislature's
concern to remove all reasonable doubts as to the impartiality of the
judge or court concerned and constitute an attempt to ensure
impartiality by eliminating the causes of such concerns. In addition
to ensuring the absence of actual bias, they are directed at removing
any appearance of partiality and so serve to promote the confidence
which the courts in a democratic society must inspire in the public
(see MeZnarić, cited above, § 27). The
Court will take such rules into account when making its own
assessment as to whether a tribunal was impartial and, in particular,
whether the applicant's fears can be held to be objectively justified
(see, mutatis mutandis, Pescador
Valero v. Spain, no. 62435/00, §§ 24-29,
ECHR 2003-VII).
2. Application to the present case
The Court notes that specific
provisions regarding the challenging of judges were set out in
Article 734 of the COCP (see paragraph 28 above). The Grand
Chamber, like the Chamber, cannot but observe that Maltese law, as it
stood at the time of the present case was deficient on two levels.
Firstly, there was no automatic obligation for a judge to withdraw in
cases where impartiality could be an issue, a matter which remains
unchanged in the law in force at present. Secondly, at the time of
the present case the law did not recognise as problematic - and
therefore as a ground for challenge - a sibling relationship between
judge and advocate, let alone that arising from relationships of a
lesser degree such as those of uncles or aunts in respect of nephews
or nieces. Thus, the Grand Chamber, like the Chamber, considers that
the law in itself did not give adequate guarantees of subjective and
objective impartiality.
101.
The Court is not persuaded that there is sufficient evidence
that the Chief Justice displayed personal bias. It therefore prefers
to examine the case under the objective impartiality test which
provides for a further guarantee.
102. As to the objective test, this part of the complaint is
directed at a defect in the relevant law under which it was not
possible to challenge judges on the basis of a relationship with a
party's advocate unless it was a first-degree relationship of
consanguinity or affinity (see paragraph 28 above). Consequently, in
the present case, Mrs M. was faced with a panel of three judges, one
of whom was the uncle of the opposing party's advocate and the
brother of the advocate acting for the opposing party during the
first instance proceedings whose conduct was at issue in the appeal.
The Grand Chamber is of the view that the close family ties between
the opposing party's advocate and the Chief Justice sufficed to
objectively justify fears that the presiding judge
lacked impartiality. It cannot be overlooked that Malta is a
small country and that entire families practising law are a common
phenomenon. Indeed, the Government have also
acknowledged that this had become a recurring issue which
necessitated action resulting in an amendment to the relevant law,
which now includes sibling relationships as a ground for withdrawal
(see paragraph 29 above).
The
foregoing considerations are sufficient to enable the Court to
conclude that the composition of the court was
not such as to guarantee its impartiality and that it failed
to meet the Convention standard under the objective test.
There
has therefore been a violation of Article 6 § 1 of the
Convention.
Having found a violation of this provision, the Court considers that
there is no need to make a separate ruling on the complaint that the
judge's behaviour affected Mrs M.'s right to make submissions.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
1. The Chamber judgment
The
Chamber considered that the finding of a violation constituted in
itself sufficient just satisfaction for any non-pecuniary damage
which the applicant may have suffered.
2. The parties' submissions
The
applicant maintained his claim of 5,000 euros (EUR) for non-pecuniary
damage suffered.
The
Government submitted that there were no reasons to revise the
Chamber's conclusion.
3. The Court's decision
The
Grand Chamber agrees with the Chamber that in respect of the distress
allegedly caused in the circumstances of the present case the finding
of a violation constitutes in itself sufficient just satisfaction for
any non-pecuniary damage which the applicant may have suffered (see
Chmelíř v. the Czech Republic, no. 64935/01,
§ 74, ECHR 2005-IV, and Coyne v. the United Kingdom,
24 September 1997, Reports, § 64).
B. Costs and expenses
1. The Chamber judgment
The Chamber
rejected the costs claimed for the proceedings before the
first-instance and appeal court, since they were not incurred to
prevent or redress the violations found. It further rejected the sums
claimed for professional legal fees for the domestic constitutional
proceedings because the applicant had failed to prove that these had
actually been incurred. It considered however that the applicant had
incurred some costs, both at the national and at the European level,
in order to put right the violation of the Convention and awarded the
applicant EUR 2,000 for the costs incurred before the domestic
courts and for the proceedings before it.
2. The parties' submissions
The
applicant claimed EUR 1,177 for the proceedings before the Chamber,
including EUR 850 for written pleadings, EUR 250 translation of
documents and EUR 77 for administrative costs, and EUR 2,193 for the
proceedings before the Grand Chamber, including EUR 850 for written
submissions, EUR 350 in connection with the preparation of the legal
aid request, EUR 300 preparation of the address to the Grand Chamber,
EUR 250 for translation of written pleadings, EUR 300 for the
appearance at the oral hearing and EUR 143 administrative costs.
The
Government submitted that the amount claimed for the proceedings
before the Chamber was less than that awarded by the Chamber and the
amount claimed for the proceedings before the Grand Chamber was
excessive and various items constituted double billing.
3. The Court's decision
The
Grand Chamber notes that the award of the Chamber covered the costs
and expenses of the domestic proceedings and those of the Convention
proceedings up to the Chamber judgment, and, accordingly, confirms
the award of EUR 2,000 made by the Chamber.
In respect of the costs and expenses for the
proceedings before the Grand Chamber, the Court reiterates that
according to the Court's case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the above criteria and the information in its possession, notably the
fact that the applicant did not submit any evidence substantiating
the claims and the absence of details as to the number of hours
worked and the rate charged per hour, the Court is not convinced that
all the costs incurred in the Grand Chamber proceedings were
necessarily incurred and were reasonable as to quantum. Taking into
account the sum of EUR 1,854.86 in legal aid paid by the Council
of Europe in respect of the Grand Chamber proceedings, the Court does
not make an award under his head.
Consequently, the Court confirms the award of EUR
2,000 under the head of costs and expenses for proceedings before the
Chamber.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Dismisses by eleven votes to six the preliminary
objections submitted by the Government;
Holds by eleven votes to six that there has been
a violation of Article 6 § 1 of the Convention in
respect of the impartiality requirement;
3. Holds unanimously that it is not necessary to examine
separately the applicant's complaint concerning Mrs M.'s right to
make submissions;
Holds by eleven votes to six
(a) that
the respondent State is to pay the applicant, within three months,
EUR 2,000 (two-thousand euros) plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English and French, and delivered at a public hearing in the
Human Rights Building, Strasbourg, on 15 October 2009.
Michael O'Boyle Jean-Paul Costa
Deputy
Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the following separate opinions are annexed
to this judgment:
– joint
dissenting opinion of Judges Costa, Jungwiert, Kovler and Fura;
– partly
dissenting opinion of Judges Björgvinsson and Malinverni;
– joint
concurring opinion of Judges Rozakis, Tulkens and Kalaydjieva.
J-P.C.
M.
O.B.
JOINT DISSENTING OPINION OF JUDGES COSTA, JUNGWIERT,
KOVLER AND FURA
(Translation)
There
are several reasons why we have not been able to agree with the
majority of the Grand Chamber in this case.
First
of all, Mrs M., the applicant's sister (now deceased), does not
appear to us to have incurred a significant disadvantage in this
case, which concerned a trivial dispute between neighbours, and
respect for human rights did not, in our view, require our Court to
examine this case on the merits. Admittedly, Protocol No. 14 (which
has been signed and ratified by Malta) has not yet come into force.
However, without waiting for the amendment to Article 35 § 3 of
the Convention that will be made once this Protocol does come into
force, it is surprising that the Court – overburdened as it is
with applications – did not consider this application to be
inadmissible, particularly as an “abuse of the right of
application” within the meaning of Article 35 § 3 in
fine of the current text. It will suffice to
recall how the case originated: it started in 1985 with an injunction
being taken out to restrain Mrs M. from hanging her washing out to
dry over her neighbour's yard. The Civil Court subsequently made two
orders, followed by a judgment; after that, the Court of Appeal gave
a judgment, and then Mrs M. lodged a constitutional appeal which her
brother – the applicant – took up nine years after it had
been lodged, following his sister's death. The Civil Court and the
Constitutional Court ruled two and three years later respectively,
and, lastly, a Chamber of the European Court of Human Rights, by a
majority of four votes to three, declared the application admissible
and found a violation of Article 6 § 1 of the Convention. The
disproportion between the triviality of the facts and the extensive
use – or rather over-use – of court proceedings is an
affront to good sense, especially as serious human-rights violations
subsist in a number of States Parties. Is it really the role of our
Court to determine cases such as this?
Next,
we are not at all convinced that the applicant can be considered to
have victim status. In this respect we fully agree with the very well
argued opinion of our colleagues, Judges Björgvinsson and
Malinverni.
Whatever
the importance of sibling ties, we do not
see any sufficient interest on the part of the applicant in lodging
an application with the Court alleging impartiality of the domestic
courts fourteen years after Mrs M.'s death. We are verging on
an actio popularis
here. In this respect too there is an element of abuse of the right
of petition because even if impartiality, which is a fundamental
plank of the right to a fair trial, is a matter of general interest,
Mr Micallef cannot rely on it without having personally
sustained
prejudice. Moreover, the European Court, which
does not have the power to deliver opinions on its own initiative,
has always taken care to rule in
concreto and not decide legal issues in
the abstract.
We
will pass over the Government's preliminary objection regarding the
failure to exhaust domestic remedies, debatable though it is.
However,
we cannot find Article 6 § 1 applicable in the present case. It
is clearly not applicable under its criminal limb. As
regards its civil limb, we entirely agree with the view expressed in
the dissenting opinion annexed to the Chamber judgment (opinion of
Judge Bratza, joined by Judges Traja and Hirvelä). In substance,
we find that the Grand Chamber stretches the
notion of a dispute over civil
rights and obligations to an almost unlimited degree and places undue
weight on the decision in Eskelinen,
which was confined to extending the applicability of Article 6 §
1 to disputes involving civil servants, thus reversing the decision
in the case of Pellegrin
(see paragraph 61 of the judgment in Eskelinen,
cited in point 11 of the above-mentioned dissenting opinion of Judge
Bratza).
We
have also observed the following procedural
anomaly. In the present case of Micallef
the Civil Court gave a judgment on the
merits (and not in interlocutory
proceedings) on 6 March 1992. In that judgment the court recognised
the merits of the complaints made by the neighbour, Mr F., and
awarded costs against Mrs M. The latter never appealed against that
judgment, which accordingly became final. Article 6 § 1 could
have been found to be applicable to those proceedings, but by
preferring to continue the proceedings relating to the interlocutory
application, Mrs M., and subsequently the applicant – her
brother – chose to pursue proceedings which, in our view, did
not concern a dispute over civil rights or obligations and, in any
event, did not settle it. As our colleague, Judge Bratza, explained,
proceedings relating to interim orders should only very exceptionally
attract the protection of Article 6 § 1 because this provision
requires the court to determine
civil rights (décide
d'une contestation
in French). This was not the case here.
This argument supplements and supports those expressed in the
excellent dissenting opinion annexed to the Chamber judgment.
So
– assuming that Mr Micallef can be regarded as a victim (of
what?) – Article 6 § 1 is inapplicable. Accordingly,
it cannot have been infringed.
PARTLY DISSENTING OPINION OF JUDGES BJÖRGVINSSON
AND MALINVERNI
(Translation)
We
disagree with the majority in this case in that, in our view, the
applicant could not claim to be a victim of a violation of Article 6.
According to the case-law, in order to claim to be
a victim of a violation of the Convention, a person must be directly
affected by the impugned measure (see Burden
v. the United Kingdom [GC], no.
13378/05, § 33, 29 April 2008).
Admittedly,
the Court has always stated that the concept of victim cannot be
applied in a rigid, mechanical and inflexible way (see Karner
v. Austria, no. 40016/98, 24 July 2003,
§ 25, ECHR 2003–IX). It has, for example, recognised that
the cases before it generally also have a moral dimension and that
persons near to an applicant may thus have a legitimate interest in
seeing to it that justice is done. This holds true all the more if
the leading issue raised by the case transcends the individual and
the interests of the applicant and may affect other persons.
We
also know that the Court may decide, in
certain circumstances, that respect for human rights as defined in
the Convention and the Protocols thereto requires the Court to
continue the examination of the case (Article 37 § 1 in
fine of the Convention), where it
raises an issue of general interest (see Karner
v. Austria, cited above, and
Marie-Louise Loyen and Bruneel
v. France, no. 55929/00, § 29,
5 July 2005). Such an issue may arise in particular where
an application concerns
the legislation or a legal system or practice of
the respondent State (see Altun
v. Germany, DR 36, § 36, and,
mutatis mutandis, Karner,
cited above, §§ 26 and 28).
Regarding
more particularly complaints under Article
6, the Court has
been prepared to recognise the standing of a relative either when the
complaints were of a general interest and the applicants, as heirs,
had a legitimate interest in pursuing the application (see Loyen,
cited above, § 29, and,
conversely, Bic and Others v. Turkey,
no. 55955/00, § 23, 2 February 2006), or on the basis of
the direct effect on the applicant's patrimonial rights
(see Ressegatti v. Switzerland,
no. 17671/02, 13 July 2006, § 25).
It
is mainly on the basis of the foregoing considerations that, like the
Chamber, the majority of the Grand Chamber held that the applicant
had standing to lodge the application with the Court (see paragraphs
49 to 51).
We
would point out, for our part, that even if, in assessing the
applicant's victim status, it takes account of the fact that the
applicant, as in this case, was a party to the domestic proceedings,
the Court interprets the concept of victim autonomously (see Sanles
Sanles v. Spain, (dec.), no. 48335/99,
26 October 2000, ECHR 2000-XI).
In
the present case the direct victim, Mrs M., died during the
constitutional proceedings at domestic level.
In
assessing the victim status of an applicant in the event of the death
of the direct victim, the case-law makes a distinction according to
whether the death occurred before
or after
the application was lodged with the Court.
a)
Where the direct victim has died after
the application was lodged with the Court, the latter normally grants
the members of the victim's family leave to pursue the application,
on condition that they have a sufficient interest.
Accordingly,
in the case of Malhous v. the Czech
Republic ((dec.), no. 33071/96, 13
December 2000, ECHR 2000-XII), the Court recognised the victim status
of the applicant's nephew, who had sought leave to pursue the
application lodged with the Court by the applicant, on the ground
that the latter had designated his nephew as universal heir of his
estate and that there were prospects of his being eventually
recognized as such, in which case at least part of the applicant's
estate would accrue to him.
Similarly,
in the case of Dalban v. Romania
(no. 28114/95, 8 February 2005) the Court recognised the
victim status of the applicant's widow, who had merely pursued the
proceedings instituted before the Court by her husband before he
died.
b)
The situation is different, however, where the direct victim has died
before
having lodged an application with the Court. Thus, in the case of
Fairfield v. the United Kingdom ((dec.)
no. 24790/04, 8 March 2008, ECHR 2005-VI), the Court found that
the daughter and executors of a person who had died – the
application had been lodged in that person's name after his death –
did not have victim status even though the executors had been granted
leave to pursue the appeal at domestic level.
An
analysis of the case-law shows that where the direct victim has died
before the
application was lodged with the Court, the latter will only very
exceptionally recognize the members of the victim's family as having
victim status. This will be the case where, for example, the very
nature of the alleged violation has prevented the direct victim from
asserting his or her complaints in person. Thus the members of the
family of a person missing and presumed dead have standing to rely on
Article 2.
Such
will also be the case where an applicant is
himself affected by what he considers to be the adverse consequences
of the alleged violation. In the case of Ressegatti
v. Switzerland,
cited above (§ 25), the Court held
that the alleged violation of the right to a fair trial had had a
direct effect on the
applicants'
patrimonial rights given that, by virtue of their capacity as heirs,
the judgment had become binding on them and that, by virtue of the
res judicata
principle,
they could not obtain any further decision in the same case.
In
our opinion, the aforementioned conditions were not fulfilled in the
present case. As the concept of victim is an autonomous one, it is
irrelevant, in our view, that the domestic courts did not reject the
application lodged by the applicant with a view to intervening in
the proceedings in his capacity as brother and heir of the
complainant or that they did not refuse to rule on his application.
Whilst
it is true that the legal issue raised in
the present case concerned the proper administration of justice and
could be considered to constitute a matter of general interest, it
did not, in our view, do so to the point of extending the concept of
victim to such a degree. It is worth pointing out in this connection
that in its judgment of 29 January 2004 the Civil Court dismissed
Mrs M.'s claim as frivolous and vexatious (see paragraph 23). As the
Court rightly stated in its decision in the case of Fairfield
v. the United Kingdom, Article 34 does
not institute for individuals a kind of actio
popularis for the interpretation of
the Convention or permit individuals to complain against a law.
Nor
is the present case comparable to the case of Ressegatti
cited above, because in this case the
applicant had to pay only the costs of the proceedings instituted by
his sister.
Lastly,
it is debatable whether the applicant could still legitimately rely
on a current
interest seeing that on 6 March 1992 the court having jurisdiction
to try the merits of the civil action brought by Mr F. found against
Mrs M. and that, as no appeal had been lodged, that decision became
final on 24 March 1992 (see paragraph 14).
This
is where our disagreement with the majority ends. Aside from that,
we approve this judgment and welcome the development of the case-law
that it inaugurates, in so far as it extends the application of
Article 6 to interim measures including injunctions (see paragraphs
78-89).
JOINT CONCURRING OPINION OF JUDGES ROZAKIS, TULKENS AND
KALAYDJIEVA
While
we are in agreement with the reasoning and the conclusions reached by
the majority in the judgment, regretfully we have to contest a
statement made by the Court in its judgment which is reflected
particularly in paragraph 83 and deals with the “new approach”
to be followed regarding the compatibility ratione materiae of
interim measures of protection with Article 6 of the Convention.
In
determining the question whether proceedings concerning interim
measures of protection fall within the ambit of the protection of
Article 6, in its civil limb, the Court rightly concludes that “[n]ot
all interim measures determine civil rights and obligations”,
and hence the guarantees of Article 6 are not applied
indiscriminately to all cases where interim measures are at stake.
Paragraph 83 of the judgment states that certain conditions must be
fulfilled before the Court will decide that the rights and
obligations in question attract the protection afforded by Article 6.
We
fully agree with the finding of the Court, stated in paragraph 85 of
the judgment, that “the nature of the interim measure, its
object and purpose as well as its effects on the right in question
should be scrutinised. Whenever an interim measure can be considered
effectively to determine the civil right or obligation at stake,
notwithstanding the length of time it is in force, Article 6 will be
applicable.”
Yet
that general and well-considered position seems to be contradicted by
the position of the Court enunciated in paragraph 84 of the judgment,
which precedes the general statement in paragraph 85, and provides:
“[In
order for Article 6 to be applicable in a case concerning an interim
measure], the right at stake in both the main and injunction
proceedings should be “civil” within the autonomous
meaning of that notion under Article 6 of the Convention”.
That
means, in other words, that if proceedings concerning interim
measures refer to a matter which is clearly civil, but the
main proceedings concern issues which, by themselves, are not civil –
even according to the broad, autonomous interpretation that the Court
has given to the concept of “civil” – these interim
proceedings are not covered by the protection of Article 6 of the
Convention.
Is
this restrictive approach, taken at a time when a change is being
made to the case-law on the matter, the correct approach?
To our mind, it is not, particularly if one takes into account that
despite the generous and extensive interpretation given to the
concept of “civil rights and obligations”, as a result of
which proceedings not considered by the internal orders of the
Contracting States as “civil” today enjoy the guarantees
of the Convention, there are still certain categories of proceedings
that are entirely excluded from that protection according to our
present case-law. Why, by imposing this undesirable condition, do we
have to exclude from the protection of Article 6 – sometimes,
as the Court has concluded, definitively – interim-measures
proceedings which by their nature determine “civil rights and
obligations”? What is the ratio of such a condition, and
what real interest does it serve?
Our
position is clear: if it is established that an interim measure
effectively determines a civil right and obligation, then the measure
should fall under the protection of Article 6, irrespective of the
nature of the main proceedings. Since we accept that interim measures
can determine such rights and obligations – sometimes with
grave repercussions on the person who is affected by them – the
existence of an independent and impartial tribunal, together with the
guarantees of Article 6, should accompany the administration of
justice.
