SAN LEONARD BAND CLUB v. MALTA - 77562/01 [2004] ECHR 411 (29 July 2004)

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This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

1. The case originated in an application (no. 77562/01) against Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by San Leonard Band Club, a Maltese private company (“the applicant”), on 23 January 2001.

2. The applicant company was represented by Mr E. Zammit-Lewis and by Mr J. Herrera, two lawyers practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Mr A. E. Borg Barthet, Attorney-General.

3. The applicant company alleged that the bench of the Court of Appeal which decided on the admissibility of its request for a retrial had not been an impartial tribunal within the meaning of Article 6 § 1 of the Convention.

4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

5. By a decision of 2 October 2003, the Court declared the application admissible.

6. The Government, but not the applicant company, filed observations on the merits (Rule 59 § 1).

8. On 30 December 1986 the Housing Secretary of Malta issued a requisition order in respect of a tenement in Hal Kirkop. The applicant company occupied the tenement in question. The requisition order had the effect of protecting its occupation.

9. On 16 October 1987 the owners of the tenement, the brothers V., instituted civil proceedings before the First Hall of the Civil Court against the Housing Secretary and the applicant company. They requested that the requisition order of 30 December 1986 be declared null and void, as being contrary to section 4 of the 1949 Housing Act, and sought to regain possession of the tenement. They also requested compensation for the damage sustained.

10. In a judgment of 9 October 1991, the First Hall of the Civil Court rejected the plaintiffs' claim.

12. In a judgment of 30 December 1993, the Court of Appeal declared that the requisition order was null and void and ordered that the appellants be given possession of the premises within six months. It sent the case back to the First Hall of the Civil Court as concerned the compensation for the damage sustained by the appellants.

13. On 21 March 1994 the applicant company lodged an application with the Court of Appeal for a new trial. It alleged that the judgment of 30 December 1993 had been based on a misinterpretation of the law, as the requisition order had been issued in the public interest and the powers of the Housing Secretary in this field could not be reviewed by the ordinary courts.

14. The brothers V. intervened in the proceedings, requesting that the application be rejected. They argued that the law had in fact been duly applied and interpreted and that the applicant company was trying to form another appeal, inadmissible under Maltese law, against the judgment of 30 December 1993.

15. On 14 December 1994 the Court of Appeal invited the parties to lodge written submissions and adjourned the case to 6 February 1995.

16. The applicant company filed a note of submissions in which it requested, inter alia, that the judges of the Court of Appeal withdraw from the case, as they were the same judges who had sat on the bench when the impugned judgment of 30 December 1993 had been delivered.

17. On 13 March 1995 the Court of Appeal rejected the applicant company's plea challenging the judges. It observed that, under Article 816 of the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta, hereafter the “COCP”), where the ground for a judicial request was the wrong application of the law, the relevant party should make reference to the law which should have been applied. As the applicant company had failed to do so, its submissions were manifestly erroneous.

18. In a judgment of 17 January 1996 the Court of Appeal rejected the applicant company's request for a new trial.

19. In the meantime, on 19 April 1995, the applicant company had initiated proceedings in the First Hall of the Civil Court sitting in its constitutional capacity. It alleged that the decision taken by the three judges composing the Court of Appeal rejecting the plea for their withdrawal had violated Article 6 § 1 of the Convention, as the court at issue could not be considered an “impartial tribunal” within the meaning of that provision.

20. In a judgment of 22 April 1997 the Civil Court found for the applicant company and declared that the failure to withdraw by the judges composing the Court of Appeal had violated Article 6 of the Convention. It observed that the same judges had been called upon to decide twice a case concerning the same facts and the same parties. Moreover, in a judgment given on 10 October 1991 in the case of Frank Cachia v. the Honourable Prime Minister, the Constitutional Court had held that Article 814 of the COCP (in accordance with which the same judges may sit when the request for a new trial is based on an alleged wrong interpretation of the law) was contrary to Article 6 of the Convention.

21. The brothers V. appealed to the Constitutional Court. They alleged, in particular, that the question dealt with by the Court of Appeal when examining the request for a retrial, namely whether there had been a wrong application of the law, was not in any way connected with the merits previously dealt with by the same court.

22. In a judgment of 31 July 2000 the Constitutional Court allowed the appeal, set aside the judgment of 22 April 1997 and rejected all the pleas raised by the applicant company.

23. The Constitutional Court observed that the possibility of a new trial provided the remedy of revision of a final judgment in order to rectify evident and gross errors leading to a miscarriage of justice. However, Maltese law restricted the application of this remedy to specific situations. As a retrial was an extraordinary remedy which entailed a derogation from the principle that res judicata decisions were legally binding between the parties, the legal provisions referring to it had always been interpreted restrictively.

24. Under Maltese law a new trial could be conducted by the same court that had pronounced the judgment complained of, and the same judges could sit. This meant that the judges were given the option of deciding whether to preside over the case or not. In the Constitutional Court's view, this rule was consistent with the Convention and justified by the fact that a retrial was not a third-instance procedure and that the court which had pronounced the judgment was in the best position to identify any mistake and to expeditiously grant an appropriate and fast remedy.

25. The Constitutional Court noted that when a request for a new trial appeared unfounded and was accompanied by a dubious demand that the judges withdraw, it was likely that an abuse of the judicial system might occur. This would be prejudicial to the other party, who had the right to have his or her case heard within a reasonable time. After the delivery of its judgment in the Frank Cachia case, the Constitutional Court had observed a systematic abuse of the remedy of a retrial. In particular, some parties had been attempting to obtain a third-instance appeal in cases in which a final decision had already been made.

26. In order to avoid such abuses, the Maltese courts had interpreted the Frank Cachia judgment in the sense that the judges who had previously adjudicated the case should carry out a prima facie examination in order to determine whether the request for a retrial met the requirements laid down in domestic law. If it did, they should withdraw; if it did not, they should simply reject the request. The Constitutional Court considered that these principles were correct and in conformity with Article 6 § 1 of the Convention.

27. In the particular circumstances of the case before it, the Constitutional Court found that there were reasons to believe that the applicant company was trying to prolong the proceedings in order to delay vacating the premises for as long as possible and that its request for a retrial was procedurally inadmissible. In particular, the request did not correctly quote the section of law on which the alleged ground for a new trial was being made, did not indicate which provision ought to have been correctly applied and was essentially based on the assumption that the Court of Appeal had given a wrong interpretation of the notion of “public interest”. The prima facie examination made by the three judges of the Court of Appeal had dealt merely with points of fact and had therefore been different in nature from the decision that the same judges had previously delivered.

28. Finally, there were no grounds to believe that the judges at issue had some personal or vested interest in the outcome of the case other than that of ensuring that justice was done.

29. Only two levels of jurisdiction are provided for in the Maltese legal system: first instance and appeal. There is no third level of jurisdiction such as a Court of Cassation. However, the possibility of a retrial is afforded by the COCP.

30. The grounds for a new trial are set out in an exhaustive list which appears in Article 811 of the COCP. In so far as relevant, this provision reads as follows:

“A new trial of a cause decided by a judgment given in second instance may be demanded by any of the parties concerned, such judgment being first set aside, in any of the following cases:

(a) where the judgment was obtained by fraud on the part of any of the parties to the prejudice of the other party;

(b) where the writ of summons was not served on the party cast; provided that, notwithstanding such omission, such party shall not have entered an appearance at the trial;

(c) where any of the parties to the suit was under legal disability to sue or be sued, provided no plea thereanent had been raised and determined;

(d) where the judgment was delivered by a court having no jurisdiction in terms of a paragraph (a) of section 741, provided no plea thereanent had been raised and determined;

For the purposes of this paragraph there shall be deemed to be a wrong application of the law only where the decision, assuming the fact to be as established in the judgment which it is sought to set aside, is not in accordance with the law, provided the issue was not in reference to an interpretation of the law expressly dealt with in the judgment;

(h) where the judgment is conflicting with a previous judgment given in a suit on the same subject-matter and between the same parties, and constituting a res judicata, provided no plea of res judicata had been raised and determined;

(j) where the judgment was based on evidence which, in a subsequent judgment, was declared to be false or which was so declared in a previous judgment but the party cast was not aware of such fact;

(k) where, after the judgment, some conclusive document was obtained, of which the party producing it had no knowledge, or which, with the means provided by law, he could not have produced, before the judgment;

(l) where the judgment was the effect of an error resulting from the proceedings or documents of the cause.

For the purposes of this paragraph there shall be deemed to be such error only where the decision is based on the supposition of some fact whereof the truth is incontestably excluded or on the supposition of the non-existence of some fact whereof the truth is positively established, provided that, in either case, the fact was not a disputed issue determined by the judgment.”

31. Under Article 814 of the COCP a request for a new trial must be made to the court by which the judgment complained of was given, and the same judges “may” sit. Article 816 of the COCP sets out the contents of an application for a retrial. The plaintiff must, in particular, state the provisions of the judgment complained of, the grounds for a new trial and the facts giving rise to each ground. Where the ground is the wrong application of the law, as provided for in Article 811(e), he or she must refer to the law that should have been applied.

“(1) The time for demanding a new trial is three months, which shall commence to run

(a) in regard of the cases referred to in paragraphs (a) and (k) of section 811, from the day on which the fraud was discovered, or the document obtained;

(b) in regard to the case referred to in paragraph (b), from the day on which the plaintiff became aware of the judgment;

(c) in regard to the cases referred to in paragraph (j), if the falsity was, at the suit or complaint of the plaintiff himself, declared subsequently to the judgment complained of, from the day of such declaration, and if it was declared subsequently to such judgment, but at the suit or complaint of other parties, or if it was declared previously from the day on which the plaintiff became aware of such declaration;

(2) A new trial may in no case be demanded after the lapse of five years from which the first judgment was given.”

33. In the decision given on 25 October 2002 in the case of A v. B, the Court of Appeal held that the possibility of a retrial was an extraordinary remedy for the exceptional cases stated in the law. It also emphasised that the relevant legal provisions were to be strictly interpreted.

34. The applicant company considered that the bench of the Court of Appeal which decided on the admissibility of its request for a retrial had not been 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 ... by an independent and impartial tribunal established by law.”

35. In its decision on the admissibility of the application, the Court considered that the question of the applicability of Article 6 of the Convention to retrial proceedings was linked to the substance of the applicant company's complaint and that it should be joined to the examination of the merits of the case. It will therefore deal with this question in the present judgment.

36. The Government considered that Article 6 was not applicable in the present case. They underlined that no right to a retrial was included among the rights and freedoms guaranteed by the Convention, and that the Commission had consistently held that Article 6 did not apply to proceedings concerning the admissibility of a request for a retrial, this provision entering into play only when the retrial itself had been ordered (see, in particular, X v. Austria, no. 7761/77, Commission decision of 8 May 1978, Decisions and Reports (DR) 14, p. 171, at pp. 173-74).

37. The Government observed that in Malta retrial proceedings in civil matters consisted of two parts. During the first part, the domestic court had to consider whether there was a prima facie case, examining whether the correct law had been applied to the facts. This preliminary examination did not involve any interpretation of the law, whereas under Article 811(e) of the COCP only a wrong application of the law was a ground for a retrial. In the Government's opinion, the first part of the retrial proceedings was therefore not decisive for the parties' civil rights and obligations, the only issue to be decided being whether there were sufficient grounds for opening the second part of the proceedings and holding a new trial.

38. The Government also noted that under the Maltese legal system the retrial of a case was not automatic, but could be granted only when certain conditions prescribed by law were fulfilled. In this respect, a retrial was different from an ordinary appeal and its admissibility stage could be compared to proceedings for leave to appeal.

39. The applicant company disputed the Government's position and observed that leave to appeal did not exist in the Maltese legal system, the right to appeal being automatically granted to virtually anybody who felt aggrieved by a judgment of the court of first instance. As to the procedure in which the domestic tribunals were called upon to decide whether a right to a retrial should be granted, it involved a decision on the civil rights and obligations of the aggrieved party, as the issue at stake was whether this party had access to the “civil” remedy of a retrial. Moreover, the admissibility of the request was the most delicate stage in retrial proceedings and was closely linked to the merits of the case.

40. The Court reiterates the Convention institutions' case-law according to which Article 6 is not applicable to proceedings concerning an application for a retrial or to proceedings which determine whether the case in a civil matter is to be re-opened or not (see, for instance, Carlotto v. Italy, no. 22420/93, Commission decision of 20 May 1997, DR 89, p. 17, at p. 27, and, with reference to a civil case, X v. Austria, no. 7761/77, Commission decision of 8 May 1978, DR 14, p. 171, at p. 173).

41. In the present case, it must be determined whether the “new trial” procedure provided by Article 811 of the COCP may be compared to proceedings determining whether a finally adjudicated civil case should be re-opened. In this respect, the actual name given to the proceedings in the domestic legal system or the fact that the national jurisdictions have considered them as an extraordinary remedy cannot be considered determinant: what is decisive is the nature and the scope of the proceedings at issue (see, mutatis mutandis and with reference to the concept of “civil rights and obligations”, Feldbrugge v. the Netherlands, judgment of 29 May 1986, Series A no. 99, pp. 12-13, § 28).

42. The Court subsequently observes that in the Maltese legal system there is no third level of jurisdiction, such as a Court of Cassation, after an appeal decision, the sole possibility for a person dissatisfied with an appeal judgment being to apply for a new trial under Article 811 of the COCP (see paragraphs 29 and 30 above).

43. The Court has examined the grounds listed in this provision. It is true that some of them (notably those relating to the discovery of a new conclusive document after the judgment) are connected to exceptional circumstances commonly justifying the re-opening of proceedings in a number of member States; however, the particular ground invoked by the applicant company in the present case was “wrong application of the law”. As the applicant company had alleged, in substance, unlawfulness of the second-instance judgment, its application was similar to an appeal on points of law before a Court of Cassation, a remedy to which Article 6 has consistently been held to be applicable (see, for instance, Delcourt v. Belgium, judgment of 17 January 1970, Series A no. 11, pp. 13-15, §§ 25-26).

44. The Court observes, moreover, that in deciding to grant a new trial, the Maltese authorities do not exercise any discretionary power, nor do they act ex gratia. On the contrary, once an applicant has shown that the conditions laid down in Article 811(e) of the COCP are fulfilled, the legality of the appeal judgment will be re-examined. This distinguishes the new trial procedure from the leave to appeal procedure.

45. Furthermore, in the present case and in previous cases decided by the Constitutional Court (i.e. the Frank Cachia case – see paragraph 20 above) the Maltese courts (the First Hall of the Civil Court and the Constitutional Court) accepted that Article 6 of the Convention could be invoked in respect of the new trial procedure.

Maltese levels of jurisdiction, that Article 6 of the Convention was not applicable to new trial proceedings. This plea was raised for the first time before the Court.

47. Finally, it is to be noted that had it accepted the applicant company's plea that the law had been wrongly applied, the Court of Appeal would have set aside its previous judgment. Accordingly, the outcome of the new trial procedure was decisive for the applicant company's “civil rights and obligations”.

48. The Court finds that Article 6 § 1 of the Convention is applicable to the application for a new trial lodged by the applicant company.

49. The Government considered that the bench of the Court of Appeal which declared inadmissible the applicant company's request for a retrial had been an impartial tribunal within the meaning of Article 6 of the Convention. They underlined that there were no elements to call into question the personal impartiality of the judges composing the bench of the Court of Appeal. As to the objective test, the Government emphasised that it would be contrary to the interests of a fair and speedy administration of justice if the judges had had to withdraw simply because a request for a retrial, which was not prima facie admissible, had been made.

50. The Government further noted that the judges who had decided on the merits were not obliged to sit during the preliminary examination of the admissibility of the request for a retrial. Under Article 814 of the COCP they “may” do so, but they may also decide, if need be, to withdraw from hearing the case. In the present case, nothing had justified such a withdrawal. The Government observed in this regard that, contrary to Article 816 of the COCP, the applicant company had failed to indicate the law that should have been applied. Its request for a retrial had in fact been based on an alleged misinterpretation of the law and had therefore at first sight been inadmissible on a procedural point.

51. According to the Government, on a request for a retrial the Court of Appeal was not called upon to adjudicate the merits of the case, but only to ascertain whether the conditions prescribed by law for granting the request had been fulfilled. In doing so, it did not decide any issue which had previously been put before it.

52. The Government referred to the judgment in the case of Thomann v. Switzerland, in which the Court had held that the fact that the applicant, convicted in absentia, was retried in his presence by the same judges did not cast any objectively justified doubt as to their impartiality. They argued that a similar conclusion should a fortiori be reached in the present case, where the issues to be determined regarding a retrial were completely different from the merits adjudicated in the original trial.

53. Finally, the Government pointed out that the applicant company had failed to issue a formal challenge to the judges, which was the normal step for persons alleging that judges had not been impartial.

54. The applicant company conceded that the Court of Appeal had satisfied the subjective test of impartiality. However, it challenged the Government's argument that the objective test had also been satisfied. The applicant company considered in this respect that, as they had previously heard the merits of the case, the three judges composing the bench of the Court of Appeal should have withdrawn from the retrial proceedings, which were meant to ascertain whether the Court of Appeal had wrongly applied the laws.

55. The applicant company emphasised that the situation in the present case was different from that of a judge taking certain pre-trial decisions totally unconnected with the merits. In retrial cases the merits had in fact already been adjudicated, and the admissibility of the request was examined by judges who had already taken cognisance of the file in the most exhaustive manner possible.

56. The applicant company acknowledged that Article 814 of the COCP did not compel the same judges to examine a request for a retrial. However, it submitted that this provision violated Article 6 of the Convention in so far as it failed to guarantee the right to a fair trial of the party applying for a retrial (“the plaintiff” in the relevant Maltese legislation – see paragraphs 30-32 above).

57. The applicant company submitted finally that its failure to issue a formal challenge regarding the judges had not amounted to an express or tacit renunciation of its right to apply to the Court. It emphasised in this respect that in order to exhaust all available domestic remedies it had made its submissions before the Constitutional Court.

58. The Court reiterates that there are two tests for assessing whether a tribunal is impartial within the meaning of Article 6 § 1: the first consists in seeking to determine the personal conviction of a particular judge in a given case; the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, among other authorities, Gautrin and Others v. France, judgment of 20 May 1998, Reports of Judgments and Decisions 1998-III, pp. 1030-31, § 58, and Thomann v. Switzerland, judgment of 10 June 1996, Reports 1996-III, p. 815, § 30).

59. As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see, among other authorities, Padovani v. Italy, judgment of 26 February 1993, Series A no. 257-B, p. 20, § 26, and Morel v. France, no. 34130/96, § 41, ECHR 2000-VI). In the present case, nothing shows that the judges composing the bench of the Court of Appeal acted with any personal prejudice. This is not disputed by the parties.

60. As to the second test, when applied to a body sitting as a bench, it means determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality. In this respect even appearances may be of some importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see Castillo Algar v. Spain, judgment of 28 October 1998, Reports 1998-VIII, p. 3116, § 45, and Morel v. France, cited above, § 42). It follows that when it is being decided whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether the fear can be held to be objectively justified (see Ferrantelli and Santangelo v. Italy, judgment of 7 August 1996, Reports 1996-III, pp. 951-52, § 58, and Wettstein v. Switzerland, no. 33958/96, § 44, CEDH 2000-XII).

61. In the instant case, the concerns regarding the Court of Appeal's impartiality stemmed from the fact that its bench was composed of the same three judges who had previously heard the merits of the case and adopted the impugned judgment of 30 December 1993.

62. The Court accepts that that situation could raise doubts in the applicant company's mind about the impartiality of the Court of Appeal. However, it has to decide whether those doubts were objectively justified. The answer to this question depends on the circumstances of the case.

63. In this connection, the Court observes that as regards the request for a retrial, the Court of Appeal was essentially called upon to ascertain whether its previous judgment of 30 December 1993 was based on a misinterpretation of the law. Thus, the same judges were called upon to decide whether or not they themselves had committed an error of legal interpretation or application in their previous decision, being in fact requested to judge themselves and their ability to apply the law.

64. The Court notes that the present case is distinguishable from that of Thomann, invoked by the Government (see paragraph 52 above). In the latter, during the retrial proceedings new and comprehensive information was available to the judges, who were undertaking a fresh consideration of the whole matter and were not called upon to evaluate and determine their own alleged mistakes (see Thomann v. Switzerland, cited above, p. 816, § 35). In the instant case, the trial judges were called upon to assess and determine whether their own application of the law had been adequate and sufficient.

65. These circumstances are sufficient to hold the applicant company's fears as to the lack of impartiality of the Court of Appeal to be objectively justified.

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

68. The applicant company's lawyers did not submit any claim for just satisfaction or for reimbursement of costs and expenses, although invited to do so.

70. Where the Court finds that an applicant's case has been decided by a tribunal which is not independent and impartial within the meaning of Article 6 § 1, it considers that, in principle, the most appropriate form of relief would be to ensure that the applicant is granted in due course a retrial by an independent and impartial tribunal (see, mutatis mutandis and in regard to a criminal case, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003).

1. Holds that Article 6 § 1 of the Convention is applicable to the proceedings complained of;

Done in English, and notified in writing on 29 July 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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You are here: BAILII >> Databases >> European Court of Human Rights >> SAN LEONARD BAND CLUB v. MALTA - 77562/01 [2004] ECHR 411 (29 July 2004) URL: http://www.bailii.org/eu/cases/ECHR/2004/411.html Cite as: (2006) 42 EHRR 23, [2004] ECHR 411, 42 EHRR 23