CASE OF MICALLEF v. MALTA
Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - award
Giovanni Bonello;Ján Šikuta;Kristaq Traja;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä
5. The applicant is a Maltese national and lives in Vittoriosa. 6. The applicant is the brother of Mrs M. In 1985 the latter was a party to civil proceedings concerning a dispute between neighbours living in a block of apartments. Mrs M. lived above Mr F. The dispute related to Mr F’s objection to Mrs M.’s habit of hanging out wet clothes to dry over Mr F.’s yard, thereby allegedly interfering with his property rights. Mr F. relied on the provisions of section 403 of the Maltese Civil Code in this connection. Pending the trial of the dispute, Mr F. applied for an injunction to restrain Mrs M. from hanging out clothes to dry over his yard. 7. On one occasion during the application for injunction proceedings, and after Mrs M. and her lawyer, Dr A., had already left the court room, 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 the presiding magistrate issued the injunction in favour of Mr F. 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. 8. On an unspecified date 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. 9. 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, 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. 10. 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 brother and Dr C.’s uncle. 11. 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 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.” 12. 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. 13. 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. 14. On 25 May 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 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 proved, she further submitted that her right to a fair trial had been violated. 15. 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. 16. 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. 17. The applicant appealed to the Constitutional Court. 18. 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. 19. Article 873 of Title VI, Sub-Title V of the Code of Organisation and Civil Procedure, 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.” 20. 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 uncle. The pertinent articles of the Code of Organisation and Civil Procedure, 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 Code of Organisation and Civil Procedure 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;”