CASE OF MUSCAT v. MALTA
No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
David Scicluna;David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
6. The applicant was born in 1970 and lives in Malta. 7. The applicant was one of the parties to civil proceedings instituted against, inter alia, him (as possessor), concerning the recission of a contract of perpetual emphyteusis of a hotel owing to a failure to effect the relevant payments, namely John Bugeja et proprio et nomine v Caral Ltd and for any interest they might have Paul Muscat [the applicant] and Joseph Muscat. In these proceedings the address of the applicant (the then defendant in the proceedings) was correctly marked as “Olinda Hotel, St. George’s Road, St. Julians”, and the claimant’s address correctly marked as “43, George Borg Olivier Street, St Julians”. 8. By a judgment of 31 October 2002, the first-instance court found against the defendants and ordered the property to be returned to the claimant. The defendants had forty days to vacate the property. 9. Caral Ltd, the holder of the emphyteusis and main defendant, did not appeal. In consequence, the rescission of the emphyteusis and the eviction of Caral Ltd became final. 10. On 20 November 2002 the applicant appealed. The appeal application was signed by Dr M., the Assistant Advocate for Legal Aid. On the same date, through the assistance of Dr M. (in his capacity as Assistant Advocate for Legal Aid), the applicant requested legal aid (Article 911 of the Code of Organisation and Civil Procedure “COCP”). In both the appeal application and the legal-aid request, signed by Dr M., the addresses of the applicant and the respondent were inverted. 11. On 28 January 2003 the applicant was granted legal aid and Dr A. and Ms T. were nominated as advocate and legal procurator respectively for this purpose. The applicant was informed that he should enquire at the court registry for details of those nominated. It would appear that he did not make an enquiry at the relevant time. 12. On 29 April 2003 the court bailiff unsuccessfully attempted to serve notification of the appeal on the respondent at “Olinda Hotel, St. George’s Road, St. Julians” (the applicant’s address). In consequence, he marked the notification as undelivered “riferta negattiva” (see Relevant domestic law) and noted that the venue was derelict. 13. No further attempts at notification were made. 14. On 20 November 2003, at the first appeal hearing conducted in the absence of both parties, the appeal was declared to have lapsed (been deserted), on the basis that no notification of the appeal application had been made to the respondent within the peremptory one-year period. 15. On 7 September 2004 the applicant lodged an application with the ordinary courts requesting the revocation of the decision of 20 November 2003, in that it had been issued on the basis of a lack of notification as a result of an error in the address of the respondent as submitted in the appeal application signed by the Assistant Advocate for Legal Aid. 16. By a decision of 15 September 2004, the applicant’s request was rejected as unjustified on the basis that it had been the applicant, through his legal representative, who had supplied the erroneous address and during the rest of the year the applicant had not taken any steps to rectify the error. 17. On 1 November 2004, the applicant lodged another application with the ordinary courts, requesting the revocation of the decision of 20 November 2003. He argued, inter alia, that the error had been made by the Legal-Aid Office and not by himself, and that he had never been given a copy of the procedural acts presented in his name, which would have enabled him to rectify the error. On 4 November 2004 the applicant’s case was dismissed as it was substantially the same as his previous request. 18. On 27 June 2005 the applicant instituted constitutional redress proceedings before the Civil Court (First Hall). Referring to the European Court’s judgments under Article 6 §§ 1 and 3 (c), he complained that the decision of 20 November 2003 and the decisions confirming it denied him the right to a fair trial, to legal assistance and to access to court as guaranteed by Article 6 of the Convention. He therefore requested the court to revoke the said decision. 19. On 4 May 2009 the Civil Court rejected the applicant’s claims. Having considered the evidence, the court noted that the relevant addresses in the appeal folder had been incorrect and that at the time (after the appeal application against the decision of November 2003) the applicant was not in contact with the Assistant Advocate for Legal Aid but with legal counsel who had acted for him previously, and maybe Dr A., his appointed advocate for legal aid. However, neither of these advocates advised the applicant to verify the acts of the proceedings. Thus, neither the applicant nor a legal representative had ever verified whether the respondents had been successfully notified. In consequence, the Civil Court found that the applicant was mostly responsible for causing the case to lapse, as he had failed to conduct the necessary verifications and had failed to prove that what had happened had been beyond his control. Even assuming that the initial error was imputable to somebody else it was up to the applicant to follow up his appeal proceedings. Moreover, unlike in the case of Czekalla v. Portugal (no. 38830/97, ECHR 2002VIII) the error in the present case did not make the appeal null and void, and it could have been avoided if the applicant had been careful to monitor the state of his case. 20. On 11 May 2009 the applicant appealed to the Constitutional Court. He argued, inter alia, that in view of an error on the part of an agent of the State, the application of “lapsed” status (desertion) provisions to his case had had disproportionate consequences. 21. On 30 October 2009 the Constitutional Court dismissed his claims on the merits. It reiterated that throughout an entire year the applicant had done nothing to correct the underlying error or to follow up his appeal proceedings. The case was the applicant’s and not the lawyer’s and therefore it was the applicant’s responsibility to show assiduous interest in what was going on and to follow the case scrupulously. The error in the present case was a minor one and could have been corrected. It was, therefore, irrelevant who had originally made the mistake. A simple check could have easily been made with the court’s registry. However, nothing had been done, and in consequence only one attempt to notify the respondent had been made. 22. As to the application of Article 963 (see Relevant domestic law) of the Code of Organisation and Civil Procedure (“COCP”), the Constitutional Court held that the provision used the word “may” and therefore the court was not obliged to make any assessment to decide whether the use of the provision would be justified. In any event, in the present case, it had appeared that notwithstanding the first failed notification (riferta negattiva) nothing had been done to request a second notification. It followed that the court’s decision not to make use of the provision had been justified. Moreover, procedural rules safeguarded the interests of both parties and those of legal certainty. 23. At the time of the present case, Article 963 of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, regarding desertion of causes, read as follows: “(1) Saving the provisions of sub-article (3) and of articles 416 and 420, the written pleadings in any cause shall be closed, in first instance, within the peremptory time of six months, and, in second instance, within the peremptory time of one year. (2) The time shall commence to run, in first instance, from the day on which the sworn application is filed, and, in second instance, from the date of the application of appeal for the reversal or variation of the judgment appealed from. (3) If it is found that the written pleadings in any cause set down for hearing are not closed, the court may order such cause to be again placed with the causes the pleadings whereof are not yet closed and fix for the closing of the pleadings of that cause a peremptory time not exceeding one month. (4) Notwithstanding the provisions of sub-article (3), the pleadings shall be deemed to be closed if the party not served with the pleading necessary for the close of the record appears at the trial and does not raise the question that the pleadings are not closed and proceeds or knowingly allows others to proceed to further acts without raising such question.” 24. In 2007, sub-article 3 above was amended to read as follows: (3) If, even where the peremptory times referred to in sub-article (1) shall have lapsed, it is found that the written pleadings in any cause are not closed, the court shall once only give such orders which it may deem fit so that such pleadings may be closed as soon as possible in order to avoid that such cause be deserted by reason of some failure to notify or by reason of the failure of performance of a procedure or formality. (3A) The desertion of a cause shall be declared by means of a decree delivered in open court if, after the orders referred to in sub-article (3) shall have been given, the written pleadings are not closed. 25. Following the 2005 amendments, Article 178 of the COCP, regarding the signing of pleadings, read as follows: Article 178 “The written pleadings and the applications whether sworn or not shall be signed by the advocate and also by the legal procurator, if any.” 26. According to Maltese practice, once an advocate or legal procurator pays the dues relevant for the notification (notifika) of an act, the bailiff will attempt to deliver notification to the address indicated. Subsequently, the bailiff must record the outcome of his attempt in the court file. Thus, an individual can learn whether the bailiff has successfully notified the other party or otherwise by virtue of a note (ir-riferta) that the bailiff sticks on the back of the document in the case file, which may be consulted in the registry. In the event that notification was unsuccessful, the stamp on the back of the document will be in red (riferta negattiva). If notification is successful the stamp on the back of the document will be in blue (riferta pozittiva). In the case of a “riferta negattiva”, the bailiff normally notes down the reason why notification was unsuccessful. Further notification will require payment and the relevant instruction depending on the bailiff’s written comments. Article 188 (1) of the COCP reads as follows: “The officer charged with the service of an act shall, on the same day when he serves or unsuccessfully seeks to serve the act, or, at the latest, on the following day, draw up a certificate stating whether the service was effected or not. In the affirmative, the certificate shall state the name and surname of the person on whom service was effected and, if the act was not served directly on the person on whom service was to be effected, the name and the surname of the person to whom the copy was delivered and the place where the act was served; in the negative, the certificate shall state the reason why service was not effected.” 27. Article 925 of the COCP, concerning the duties of legal-aid representatives, reads as follows: “(1) The advocate or legal procurator assigned to the person admitted to the benefit of legal aid shall: (a) act in the best interest of the person admitted to the benefit of legal aid, and may not demand any form of payment from that party; (b) appear in court when the case of the person admitted to the benefit of legal aid is called; (c) make the necessary submissions and file the requisite notes, applications, replies, notices, applications, and other written pleadings as circumstances require. (2) The advocate or legal procurator shall remain responsible for a cause assigned to him as aforesaid, until the same has been finally disposed of, even though the period of his appointment may have expired.” 28. In the judgments of Nardu Balzan Imqareb v Commissioner of Police, of 4 July 2006 and Nardu Balzan Imqareb v the Registrar of Courts, of 18 May 2006, both cases decided by the Civil Court (First Hall) in its Constitutional Jurisdiction, in the same single judge formation, the Civil Court entered into the admissibility and where necessary the merits of the applications, notwithstanding that the applications to the court had been presented by the claimant without the assistance of a lawyer. However, the Civil Court did not deal specifically with the respondents’ objection that the application was null and void, on the basis that it had not been signed by an advocate, as required by law and confirmed by the judgment in Bruce Clark v The Registrar of Courts of 28 March 2006.