CEDH · CASELAW;CLIN;ENG — 15 octobre 2009

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Malta [GC] - 17056/06 Judgment 15.10.2009 [GC] Article 34 Victim Application introduced on behalf of applicant’s sister, who had died while her constitutional claim concerning the alleged breach of her right to a fair trial was pending: victim status upheld   Article 6 Civil proceedings Article 6-1 Civil rights and obligations Injunction proceedings: Article 6 applicable   Impartial tribunal Lack of statutory right to challenge a judge on the basis of his/her family ties with a party’s advocate: violation   Facts – The applicant’s sister was an unsuccessful party to civil litigation which was decided on the merits in 1992. In 1985 an injunction was issued against her, following which her neighbour brought a substantive action. She challenged the injunction before the court, which declared it null and void, finding that it had been issued in breach of the adversarial principle. That judgment was set aside on appeal. In 1993 the applicant’s sister instituted constitutional proceedings, alleging that the president of the court of appeal had lacked objective impartiality by reason of his family ties with the other party’s lawyer. In 2002, after his sister’s death, the applicant intervened in the proceedings. In 2005 the constitutional claim was dismissed. In 2006 the applicant lodged an application with the European Court. In a judgment of 15   January 2008 (see Information Note no.   104), a Chamber of the Court held, by four votes to three, that there had been a violation of Article 6 §   1 of the Convention on account of the lack of objective impartiality of the court of appeal. Law – (a)   Preliminary objections : The respondent Government contested the admissibility of the application on three grounds: firstly, that the applicant did not have victim status as he had not been a party to the proceedings; secondly, that the applicant had not exhausted domestic remedies; and, thirdly, that Article 6 was not applicable to injunction proceedings. (i)     Victim status –The direct victim had died during the constitutional proceedings, which had lasted over ten years at first instance and were necessary to exhaust domestic remedies. Theconstitutional jurisdictions had not rejected the applicant’s request to intervene in the proceedings in his capacity as brother and heir of the plaintiff, nor had they refused to entertain his appeal. Furthermore, he had been made to bear the costs of the case instituted by his sister and could thus be considered to have a patrimonial interest to recover the costs. Moreover, the case raised important issues concerning the fair administration of justice and thus relating to the general interest. The applicant therefore had standing to introduce the present application. (ii)     Exhaustion of domestic remedies – At the material time there had been no provision under Maltese law for challenging a judge on the basis of an uncle-nephew relationship with a lawyer. In raising this issue before the domestic constitutional courts, which had dismissed the Government’s objection of non-exhaustion of ordinary remedies and examined the substance of the complaint, the applicant had made normal use of the remedies which were accessible to him and which related, in substance, to the facts complained of before the Court. (iii)     Applicability of Article 6 § 1 – The injunction proceedings and the consequent challenge to their fairness were one set of proceedings connected to the merits of the cause and could not be seen as distinct from each other. Although preliminary proceedings did not normally fall within the protection of Article   6, the Court observed that there was now a widespread consensus amongst Council of Europe member States regarding the applicability of Article   6 to interim measures, including injunction proceedings. This was also the position that had been adopted in the case-law of the Court of Justice of the European Communities. In excessively long proceedings, a judge’s decision on an injunction would often be tantamount to a decision on the merits of the claim for a substantial period of time, or even permanently in exceptional cases. It followed that, frequently, both the interim and the main proceedings decided the same “civil rights or obligations”, within the meaning of Article   6, and produced the same effects. In the circumstances, the Court no longer found it justified to automatically characterise injunction proceedings as not determinative of civil rights or obligations. Nor was it convinced that a defect in such proceedings would necessarily be remedied in proceedings on the merits since any prejudice suffered in the meantime might by then have become irreversible and with little realistic opportunity to redress the damage caused, except for the possibility of pecuniary compensation. The Court therefore considered that a change in the case-law was necessary. Article   6 would be applicable if the right at stake in both the main and the injunction proceedings was “civil” within the meaning of Article   6 and the interim measure could be considered effectively to determine the civil right or obligation at stake, notwithstanding the length of time it was in force. However, the Court accepted that in exceptional cases it might not be possible to comply with all of the requirements of Article   6. While the independence and impartiality of the tribunal or the judge remained an inalienable safeguard in such proceedings, other procedural safeguards might apply only to the extent compatible with the nature and purpose of the interim proceedings at issue. In the present case the substance of the right at stake in the main proceedings concerned the use by neighbours of property rights and therefore a right of a “civil” character. The purpose of the injunction was to determine the same right as the one being contested in the main proceedings and was immediately enforceable. Article   6 was therefore applicable. Conclusion : preliminary objections dismissed (eleven votes to six). (b)     Merits : Under Maltese law, as it stood at the relevant time, there was no automatic obligation on a judge to withdraw in cases where impartiality could be an issue. Nor could a party to a trial challenge a judge on grounds of a sibling relationship – let alone an uncle-nephew relationship – between the judge and the lawyer representing the other party. Since then Maltese law had been amended and now included sibling relationships as a ground for withdrawal of a judge. In the dispute at issue in the applicant’s case, the Court took the view that the close family ties between the opposing party’s lawyer and the president of the court sufficed to objectively justify fears that the panel of judges lacked impartiality. Conclusion : violation (eleven votes to six). Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes