European Court of Human Rights

Resolution CM/ResDH(2011)232¹

Execution of the judgment of the European Court of Human Rights

Micallef against Malta

(Application No. 17056/06, Grand Chamber judgment of 15 October 2009)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the right to a fair hearing, due to the lack of objective impartiality of the Chief Justice of the Court of Appeal (violation of Article 6§1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)232

Information on the measures taken to comply with the judgment in the case of

Micallef against Malta

Introductory case summary

This case concerns a violation of the applicant’s right to a fair hearing, due to the lack of objective impartiality of the Chief Justice of the Court of Appeal. In 1993 the Court of Appeal dismissed the applicant’s sisters’ (deceased in 2002) complaint that in 1985 she had been denied the right to be heard in proceedings at which an interim injunction was issued in her absence.

The Chief Justice of the Court of Appeal was the brother of the lawyer representing the opposing party at first instance, and the uncle of the opposing party’s legal representative at appeal. The European Court considered that the close family ties between the opposing party’s advocates and the Chief Justice sufficed to objectively justify fears that the presiding judge lacked impartiality (violation of Article 6§1).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

b) Individual measures

The European Court found that with regard to the distress allegedly caused by the circumstances of this case the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

Prior to the Grand Chamber judgment in this case, in 2007, Article 734 of the Code of Organisation and Civil Procedure was amended to allow a judge to be challenged or abstain from dealing with a case (i) if the legal representative pleading before a judge is her or his son or daughter, spouse or ascendant; or (ii) if the legal representative pleading before a judge is the brother or sister of the said judge.

All judgments of the European Court against Malta are automatically sent out to competent authorities and are publicly available via the website of the Ministry of Justice and Home affairs which provides a direct link to the European Court’s website: (http://www.mjha.gov.mt/Default.aspx).

III. Conclusions of the respondent state

The government considers that no individual measure is required besides payment of the just satisfaction, that the general measures taken will prevent similar violations and that Malta has thus complied with its obligations under Article 46, paragraph 1, of the Convention.