FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 17056/06 
by Joseph MICALLEF 
against Malta

The European Court of Human Rights (Fourth Section), sitting on 5 September 2006 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr G. Bonello
 Mr M. Pellonpää
 Mr L. Garlicki
 Ms L. Mijović, 
 Mr J. Šikuta, judges
and Mr T.L. Early, Section Registrar,

Having regard to the above application lodged on 15 April 2006,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Joseph Micallef, is a Maltese national who lives in Vittoriosa, Malta. He is represented before the Court by Mr T. Azzopardi, a lawyer practising in Valletta, Malta.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  Background of the case

The applicant is the brother of Mrs M. In 1985 the latter was a party to a set of civil proceedings concerning a request for a warrant of injunction against her. On one occasion the presiding magistrate changed the date of a future hearing after Mrs M. and her lawyer, Dr A., had already left the courtroom. As a consequence, Mrs M. was not present at the hearing and the presiding magistrate issued a warrant of injunction against her.

On an unspecified date Mrs M. instituted proceedings before the Civil Court (First Hall) in its ordinary jurisdiction, claiming that the warrant of injunction had been issued in her absence and without giving her the opportunity to testify. By a judgment of 15 October 1990, the Civil Court upheld her claims and declared the said warrant null and void.

2. Proceedings before the Court of Appeal

Mr F., the other party to the civil proceedings, 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 and Dr C.’s brother and uncle respectively.

At the appeal hearing of 12 October 1992, the Chief Justice alleged that the conduct of Dr A. was unethical, as he had impugned, without justification, the conduct of Mr. F’s lawyer. On learning that in the prior proceedings Mr. F’s lawyer was his brother, the Chief Justice threatened to refer the case to the competent authorities. He furthermore dictated a minute 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 his client and he 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 me.”

... 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. uttered a few words in his defence, but no oral submissions regarding the appeal were heard. The Chief Justice suspended the sitting and went to his chambers. A few minutes later the lawyers of both parties were called into the president’s chambers. Explanations were heard and the incident was defused.

By a judgment of 5 February 1993, the Court of Appeal found against Mrs M. and reversed the judgment of the Civil Court.

3. Proceedings before the Civil Court

On 25 May 1993 Mrs M. instituted proceedings before the Civil Court (First Hall) in its constitutional jurisdiction. She alleged that the President of the Court of Appeal lacked objective impartiality by reason of his family ties with the other party’s lawyers and that this had been manifest in the incident of 12 October 1992. Observing that the Court of Appeal had denied facts which had been already proven, she submitted that her right to a fair trial had been violated.

As Mrs M. had died 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. It first noted that the plaintiff had failed to request the Chief Justice to withdraw from the case before the pronouncement of the final judgment. In any event, the Civil Court 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 have ruled in their 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.

4. 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 recalled that according to Article 46 § 5 of the Constitution, no appeal lay against a decision dismissing an application as frivolous and vexatious.

B.  Relevant domestic law and practice

According to Maltese law, a judge is barred from hearing a case if one of the parties is represented by the former’s son or daughter, spouse or ascendant. Nothing prevents a judge from sitting in a case if the representative in issue is his or her brother or uncle. The pertinent sections of the Code of Organisation and Civil Procedure, in so far as relevant, read as follows:

Section 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.”

Section 734

“(1) A judge may be challenged or abstain from sitting in a cause -

...

(f) if the advocate or legal procurator pleading before a judge is the son or daughter, spouse or ascendant of the said judge;”

COMPLAINTS

1. Invoking Article 6 § 1 of the Convention, the applicant alleged that the Court of Appeal lacked impartiality and had breached Mrs M.’s right to a fair hearing.

2. The applicant complained under Article 6 § 1 of the Convention about the length of the constitutional proceedings instituted by Mrs M.

THE LAW

1. The applicant considered that the proceedings before the Court of Appeal were not fair and that the latter was not an “impartial tribunal” within the meaning of Article 6 § 1 of the Convention.

In so far as relevant, this provision reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal ...”

The applicant observed that during the appeal proceedings Mrs M.’s lawyer had not been given the chance to make oral submissions. He moreover alleged that the President of the Court of Appeal lacked the required impartiality in the light of his family ties with the other party’s lawyers and of his behaviour at the hearing of 12 October 1992.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2.  The applicant complained that Mrs. M.’s constitutional claim had not been heard within a reasonable time. He invoked Article 6 § 1 of the Convention.

The Court reiterates that according to Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of Article 35 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, for example, Hentrich v. France, judgment of 22 September 1994, Series A no. 296-A, p. 18, § 33, and Remli v. France, judgment of 23 April 1996, Reports of Judgments and Decisions 1996-II, p. 571, § 33).

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) .

The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, in particular, Vernillo v. France, judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27, and Dalia v. France, judgment of 19 February 1998, Reports 1998-I, pp. 87-88, § 38). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Akdivar v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1212, § 71, and Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, p. 18, § 37).

The Court notes that in the present case the applicant failed to institute constitutional proceedings before the Civil Court and, if unsuccessful, before the Constitutional Court, in order to complain about the breach of the “reasonable time” requirement. It recalls that in the Maltese system, a constitutional claim may be based solely on a breach of the rights guaranteed by the Convention, irrespective of the authority which is responsible for the alleged violation. On a number of occasions the Civil Court and the Constitutional Court have indeed found a breach of the Convention, including with respect to the reasonable-time requirement of Article 6, and provided sufficient redress (see, for instance, Arrigo and Vella v. Malta (dec.), no. 6569/04, 10 May 2005).

Moreover, the Court is unable to find any particular circumstance capable of exempting the applicant from invoking the breach of the “reasonable time” principle at the domestic level.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the fairness of the appeal proceedings and the alleged lack of impartiality of the Court of Appeal;

Declares the remainder of the application inadmissible.

T.L. Early Nicolas Bratza  
 Registrar President

MICALLEF v. MALTA DECISION


MICALLEF v. MALTA DECISION