DAVID AQUILINA v. MALTA
Inadmissible
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
The applicant, Mr David Reuben Aquilina, is a Maltese national who lives in Fgura. He was represented before the Court by Dr A. MifsudBonnici, a lawyer practising in Valletta. In September 2005 the applicant was sued for an amount of money which he allegedly owed the plaintiffs in respect of a purchase he made from them. He thus became a party to civil proceedings before the Small Claims Tribunal (“SCT”). On 12 December 2007 the SCT found against the applicant. It noted that the contractual agreements undertaken were not ideal. However, it was not competent to decide whether such agreements could have been made or not. It was solely competent to decide whether the applicant owed the sum of 1,500 Maltese Liras (MTL) to the plaintiffs. Finding that the versions of the parties were diametrically opposed the court considered that it had to base itself on the credibility of their testimonies. It found that, on the one hand, the plaintiffs had been coherent in their submissions throughout the three separate hearings. On the other hand, the applicant’s testimony had been contradictory and in its view false. It noted, inter alia, that the applicant claimed that on signing the initial agreements he had not understood what he was signing and that he would consequently have to make payment. This notwithstanding, he had started making regular payments by means of a standing order. When asked about the latter he had replied that he did not know what such a thing was, notwithstanding that it was general knowledge that such an order could only be made at the request of the account holder. The court was of the view that his claim that he was illiterate and that he did not understand what had been going on was only an excuse to avoid the obvious. On 14 July 2006, the applicant instituted constitutional proceedings claiming a violation of Article 6 of the Convention. He complained that the SCT was not an impartial tribunal in view of its composition, namely an adjudicator, who was a lawyer appointed on a part-time basis for a term of office of five years, and who could in the meantime continue to practise as a lawyer before the ordinary courts. This system left room for prejudice against lawyers who might have been the adjudicator’s opponents in previous or future litigation, or advantages for clients represented by the same firm as that of the adjudicator, together with any other likes and dislikes among colleagues of the same profession acting in the same courts of law, as was the case in Malta. The fact that the adjudicators were not obliged to take the oath administered to judges and magistrates sitting in the ordinary courts was a matter of further concern. On 31 May 2007 the Civil Court (First Hall) rejected the applicant’s claim as the system was safeguarded by the possibility of challenging adjudicators or of their withdrawing ex officio. The applicant appealed. On 13 June 2007 the Constitutional Court upheld the first-instance judgment. Noting that the guarantees of impartiality were best respected by the ordinary courts having full-time judges, it considered that although it would have been preferable that such adjudicators did not continue to practise their profession, the fact that they did so did not mean that the SCT lacked objective impartiality. Although it could be envisaged that in certain circumstances, as mentioned by the applicant, an issue could arise, the applicant’s complaint in the present case was in the abstract. Section 4 of the Small Claims Tribunal Act, Chapter 380 of the Laws of Malta, reads as follows: (1) The Tribunal shall be presided over by an adjudicator sitting alone: Provided that more than one adjudicator may be appointed to sit in any of the said Tribunals, but only one adjudicator shall sit in any one case. (2) Adjudicators shall be appointed by the President acting in accordance with the advice of the Prime Minister. A person shall not be qualified to be appointed as Adjudicator unless he has practised as an advocate in Malta for a period or periods amounting in the aggregate to not less than seven years. (3) A person shall be disqualified from being appointed an adjudicator if such person - (a) is a member of the House of Representatives; or (b) is a member of a Local Council; or (c) is an undischarged bankrupt; or (d) has been sentenced by any court to imprisonment for any term or has been found guilty by any court of any of the crimes in Titles III, V or VI of Part II of Book First of the Criminal Code. (4) (a) Adjudicators shall receive such remuneration as the Prime Minister may by notice in the Gazette determine and such remuneration shall be a charge on the Consolidated Fund; such remuneration shall not during the tenure of office of an Adjudicator be altered to his disadvantage. (b) During the term of their appointment, Adjudicators shall be precluded from the exercise of their profession in cases before the Tribunal. (5) Adjudicators shall be appointed for a term of five years and, on the lapse of their term, they shall not be eligible for reappointment: Provided that if the office of Adjudicator is vacant or if the Adjudicator is unable to perform the functions of his office, then, until a person has been appointed and has assumed the functions of that office, those functions shall be performed by any other Adjudicator in office or by such other person qualified for appointment as Adjudicator as may be appointed to act as Adjudicator by the President acting in accordance with the advice of the Prime Minister. Such person shall continue to act for the period of his appointment or, if no such period is specified, until his appointment is revoked by the President acting in accordance with the advice of the Prime Minister. (6) In the exercise of his functions under this Act, an Adjudicator shall not be subject to the control or direction of any other person or authority. An Adjudicator may not be removed from office except in the manner and for the reasons provided for in article 97(2) of the Constitution, and any law or regulation made pursuant to article 97(3) of the Constitution for the purposes of article 97(2) thereof shall apply mutatis mutandis to the procedure for the presentation of an address and for the investigation and proof of the inability or misbehaviour of an Adjudicator under the provisions of this article. In so far as relevant, section 7 of the Act reads as follows: “The Tribunal shall determine any claim or counterclaim before it principally in accordance with equity”.