AS TO THE ADMISSIBILITY OF
by David Reuben AQUILINA
The European Court of Human Rights (Fourth Section), sitting on 20 October 2009 as a Chamber composed of:
David Thór Björgvinsson,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 21 October 2008,
Having deliberated, decides as follows:
The applicant, Mr David Reuben Aquilina, is a Maltese national who lives in Fgura. He was represented before the Court by Dr A. Mifsud Bonnici, a lawyer practising in Valletta.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Background of the case
In September 2005 the applicant was sued for an amount of money which he allegedly owed the plaintiffs in respect of a purchase he made from them. He thus became a party to civil proceedings before the Small Claims Tribunal (“SCT”).
On 12 December 2007 the SCT found against the applicant. It noted that the contractual agreements undertaken were not ideal. However, it was not competent to decide whether such agreements could have been made or not. It was solely competent to decide whether the applicant owed the sum of 1,500 Maltese Liras (MTL) to the plaintiffs. Finding that the versions of the parties were diametrically opposed the court considered that it had to base itself on the credibility of their testimonies. It found that, on the one hand, the plaintiffs had been coherent in their submissions throughout the three separate hearings. On the other hand, the applicant’s testimony had been contradictory and in its view false. It noted, inter alia, that the applicant claimed that on signing the initial agreements he had not understood what he was signing and that he would consequently have to make payment. This notwithstanding, he had started making regular payments by means of a standing order. When asked about the latter he had replied that he did not know what such a thing was, notwithstanding that it was general knowledge that such an order could only be made at the request of the account holder. The court was of the view that his claim that he was illiterate and that he did not understand what had been going on was only an excuse to avoid the obvious.
B. Constitutional proceedings
On 14 July 2006, the applicant instituted constitutional proceedings claiming a violation of Article 6 of the Convention. He complained that the SCT was not an impartial tribunal in view of its composition, namely an adjudicator, who was a lawyer appointed on a part-time basis for a term of office of five years, and who could in the meantime continue to practise as a lawyer before the ordinary courts. This system left room for prejudice against lawyers who might have been the adjudicator’s opponents in previous or future litigation, or advantages for clients represented by the same firm as that of the adjudicator, together with any other likes and dislikes among colleagues of the same profession acting in the same courts of law, as was the case in Malta. The fact that the adjudicators were not obliged to take the oath administered to judges and magistrates sitting in the ordinary courts was a matter of further concern.
On 31 May 2007 the Civil Court (First Hall) rejected the applicant’s claim as the system was safeguarded by the possibility of challenging adjudicators or of their withdrawing ex officio.
The applicant appealed.
On 13 June 2007 the Constitutional Court upheld the first-instance judgment. Noting that the guarantees of impartiality were best respected by the ordinary courts having full-time judges, it considered that although it would have been preferable that such adjudicators did not continue to practise their profession, the fact that they did so did not mean that the SCT lacked objective impartiality. Although it could be envisaged that in certain circumstances, as mentioned by the applicant, an issue could arise, the applicant’s complaint in the present case was in the abstract.
B. Relevant domestic law
Section 4 of the Small Claims Tribunal Act, Chapter 380 of the Laws of Malta, reads as follows:
(1) The Tribunal shall be presided over by an adjudicator sitting alone:
Provided that more than one adjudicator may be appointed to sit in any of the said Tribunals, but only one adjudicator shall sit in any one case.
(2) Adjudicators shall be appointed by the President acting in accordance with the advice of the Prime Minister. A person shall not be qualified to be appointed as Adjudicator unless he has practised as an advocate in Malta for a period or periods amounting in the aggregate to not less than seven years.
(3) A person shall be disqualified from being appointed an adjudicator if such person -
(a) is a member of the House of Representatives; or
(b) is a member of a Local Council; or
(c) is an undischarged bankrupt; or
(d) has been sentenced by any court to imprisonment for any term or has been found guilty by any court of any of the crimes in Titles III, V or VI of Part II of Book First of the Criminal Code.
(4) (a) Adjudicators shall receive such remuneration as the Prime Minister may by notice in the Gazette determine and such remuneration shall be a charge on the Consolidated Fund; such remuneration shall not during the tenure of office of an Adjudicator be altered to his disadvantage.
(b) During the term of their appointment, Adjudicators shall be precluded from the exercise of their profession in cases before the Tribunal.
(5) Adjudicators shall be appointed for a term of five years and, on the lapse of their term, they shall not be eligible for reappointment:
Provided that if the office of Adjudicator is vacant or if the Adjudicator is unable to perform the functions of his office, then, until a person has been appointed and has assumed the functions of that office, those functions shall be performed by any other Adjudicator in office or by such other person qualified for appointment as Adjudicator as may be appointed to act as Adjudicator by the President acting in accordance with the advice of the Prime Minister. Such person shall continue to act for the period of his appointment or, if no such period is specified, until his appointment is revoked by the President acting in accordance with the advice of the Prime Minister.
(6) In the exercise of his functions under this Act, an Adjudicator shall not be subject to the control or direction of any other person or authority. An Adjudicator may not be removed from office except in the manner and for the reasons provided for in article 97(2) of the Constitution, and any law or regulation made pursuant to article 97(3) of the Constitution for the purposes of article 97(2) thereof shall apply mutatis mutandis to the procedure for the presentation of an address and for the investigation and proof of the inability or misbehaviour of an Adjudicator under the provisions of this article.
In so far as relevant, section 7 of the Act reads as follows:
“The Tribunal shall determine any claim or counterclaim before it principally in accordance with equity”.
The applicant complained under Article 6 of the Convention that the Small Claims Tribunal was not impartial under the objective test.
The applicant complained that his civil proceedings had not been heard by an impartial tribunal in accordance with Article 6 of the Convention, which in so far as relevant, 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 Court reiterates in the first place that in previous cases it examined there were no reasons to doubt that legislation and practice on the part-time judiciary in general can be framed so as to be compatible with Article 6 (see Wettstein v. Switzerland, no. 33958/96, § 41, ECHR 2000-XII, and Steck-Risch and Others v. Liechtenstein, no. 63151/00, § 39, 19 May 2005). As usual in proceedings originating in an individual application, the Court will confine itself, as far as possible, to an examination of the concrete case before it (ibid.). The Court’s task is not to review the relevant domestic law and practice in abstracto, but to determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of Article 6 § 1 in the present case (see Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154, p. 21, § 45).
As noted by the Constitutional Court the applicant is not complaining that the SCT had any links with the plaintiffs in his case (see, a contrario, Wettstein, cited above, § 47), but of the system in place in general. The same is reiterated in the application before the Court. It follows that in the applicant’s case there existed no circumstances which could call into doubt, from an objective point of view, the impartiality of the SCT which heard the applicant’s case. This complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Consequently, it must be rejected under Article 35 § 4 thereof.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas Bratza