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FOURTH
SECTION
CASE OF CENTRAL MEDITERRANEAN DEVELOPMENT CORPORATION LIMITED v.
MALTA (No. 2)
(Application
no. 18544/08)
JUDGMENT
STRASBOURG
22
November 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Central Mediterranean Development Corporation
Limited v. Malta (no. 2),
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Päivi Hirvelä,
Ledi
Bianku,
Zdravka Kalaydjieva,
Nebojša
Vučinić, judges,
David Scicluna, ad hoc
judge,
and Fatoş Aracı,
Deputy Section
Registrar
Having
deliberated in private on 3 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18544/08) against Malta lodged
with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by Central Mediterranean Development Corporation Limited (“the
applicant company”), a company registered in Malta, on 27 March
2008.
- The
applicant company was represented by Dr A. Mifsud-Bonnici, a lawyer
practising in Valletta. The Maltese Government (“the
Government”) were represented by their Agent, Dr Silvio
Camilleri, Attorney General.
- The
applicant company alleged that the Court of Appeal as composed on 14
November 2005 had not been an impartial tribunal.
- On
6 January 2010 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
- Mr V. De Gaetano, the judge elected in respect of
Malta, was unable to sit in the case (Rule 28 of the Rules of Court).
The President of the Chamber accordingly appointed Mr David Scicluna
to sit as an ad hoc judge (Rule 29 § 1(b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The Background of the case
- On
an unspecified date the applicant company was sued in relation to its
failure to honour a contractual obligation, namely to construct roads
and keep them in a good state of repair. On 27 June 2003 the
first-instance court found against the applicant company and gave it
three months to execute the works. The decision was confirmed, in
part (in relation to certain roads), on appeal on 25 February 2005 by
the Court of Appeal sitting in a three judge formation.
- On
17 May 2005 the applicant company lodged a request for retrial under
Article 811(e) of the Code of Organisation and Civil Procedure
(“COCP”) (see Relevant domestic law below), and a request
for a stay of execution of the judgment under Article 823 (2) of the
COCP, pending the decision on the retrial request.
- On
3 November 2005 the Court of Appeal, sitting in the same composition
as in the appeal on the main proceedings, rejected the request for a
stay of execution. It considered that the bank guarantee of 100,000
Maltese liras (“MTL”) offered by the applicant company
was not a sufficient guarantee for the execution of a judgment which
might involve expenses amounting to MTL 400, 000. A further request
by the applicant company to be allowed to lodge the sum of MTL 400,
000 was also rejected on the same day.
- On
9 November 2005 the applicant company requested the Court of Appeal
to reconsider the said decision and asked for its revocation. It
invoked Article 229 (4) of the COCP (see Relevant domestic law
below). The matter, yet again, fell to be heard before the same
composition of the Court of Appeal which gave the decision appealed
against. The applicant company therefore lodged a request for the
withdrawal of the three judges, under Article 734 (1) (d) (ii) of the
COCP, on the basis that they could not be considered impartial since
they had determined the merits of the claim subject to “appeal”.
- On
14 December 2005, the Court of Appeal, in the same composition,
dismissed the applicant company’s request for withdrawal and
declared the appeal null and void. It held that a request for
reconsideration under Article 229 (4) of the COCP did not require the
said judges to withdraw. On the contrary, it implied that the case
had to be reconsidered by precisely the same judges, and the claim
was therefore frivolous and vexatious. As to the appeal, it
considered that the decision of 3 November 2005 amounted to
a final judgment against which no appeal lay, it being covered by
Article 227 and not 229 of the COCP (see Relevant domestic law
below).
B. The constitutional redress proceedings
- On
2 April 2006 the applicant company instituted constitutional redress
proceedings, claiming that its appeal proceedings culminating in the
decision of 14 December 2005 had not been heard by an impartial
tribunal.
- On
10 October 2006 the Civil Court in its constitutional jurisdiction
found against the applicant company. It considered that, while it was
true that the provisions of Articles 227 and 823 (6) of the COCP
appeared contradictory, the logical interpretation of the provisions
was that an appeal for dismissal of a request for a stay of execution
was available only if the decision had been taken by a court other
than the Court of Appeal. Had this not been the case, the applicant
company would have had reason to question the Court of Appeal’s
impartiality. However, the latter court had not reconsidered its
decision of 3 November 2005, but abstained from taking cognisance of
the request on the basis that it was null and void. Thus, the
applicant company’s claim was unfounded.
- The
Constitutional Court on 17 October 2007 confirmed the Civil Court’s
judgment. Noting that it had not been necessary for the Civil Court
to enter into the interpretation given by the Court of Appeal, it
held that on 14 December 2005 the Court of Appeal had not assessed
its own previous conduct. It delivered a decision on a new legal
question, namely the legal and procedural question of whether the
appeal application was null and void, viz, whether the method
of appeal used by the applicant company was one envisaged and allowed
according to the COCP. It therefore did not decide on the merits of
its previous decision. Moreover, it found that it had not been
sufficiently proved that there was a real risk that the relevant
judges had been biased. Indeed, the applicant company had not
contested the impartiality of the Court of Appeal at the beginning of
the proceedings, namely on the basis that the appeal in respect of
the decision of 25 February 2005 had also been decided by the same
formation of the Court of Appeal. Furthermore, the judicial code of
ethics, the judicial oath and the relevant law provisions in respect
of withdrawal and abstention of judges offered a sufficient guarantee
of impartiality.
II. RELEVANT DOMESTIC LAW
- The
pertinent provisions of the COCP, in so far as relevant, read as
follows:
A. As to the possibility to appeal
Article 227
“Judgments delivered by the Court of Appeal are
not appealable.”
Article 229
“(1) An appeal from the decrees mentioned
hereunder shall only lie after the final judgment and together with
an appeal from such judgment, and such decrees may not be challenged
before the final judgment is delivered: ...
(m) a decree disallowing a request for stay of
proceedings.
(2) A decision of the court in the cause listed
hereunder shall be given by a decree to be read out in open court on
a day duly notified to the parties, and an appeal from such decree
may be entered before the final judgment subject to the procedure
laid down in sub-article (4) and (5): ...
(e) a decree ordering the stay of proceedings.
(3) Save as otherwise specifically provided for in this
Code an appeal from any other interlocutory decree not included in
subarticles (1) and (2) may be entered before the definitive judgment
only by special leave of the court hearing the case, to be requested
by an application to be filed within ten days from the date on which
the decree is read out in open court. The court, after hearing the
parties, may grant such leave of appeal if it deems it expedient and
fair that the matter be brought before the Court of Appeal before the
definitive judgment and the time limit for the filing of such an
appeal shall commence to run from the date of the said decree.
(4) In the case of any decree under subarticles (2) and
(3), provided that any application for an appeal has not been filed,
the aggrieved party may file an application within six days from the
date on which the decree is read out in open court, requesting the
court which delivered the decree to reconsider its decision.
(5) The court shall decide, as expeditiously as possible
by decree to be read out in open court, the application for special
leave to appeal in terms of sub-article (3) or the application to
reconsider its decision in terms of sub-article (4), expounding fully
therein the reasons for the decision. ”
B. As to the challenging of judges
Article 734
“ (1) A judge may be challenged or abstain from
sitting in a cause -
(d) (ii) if he had previously taken cognisance of
the cause as a judge or as an arbitrator:
Provided that this shall not apply to any decision
delivered by the judge which did not finally dispose of the merits in
issue or to any judgment of non-suit of the plaintiff;”
C. As to retrial requests
Article 811
“A new trial of a cause decided by a judgment
given in second instance or by the Civil Court, First Hall, in its
Constitutional Jurisdiction, may be demanded by any of the parties
concerned, such judgment being first set aside, in any of the
following cases:
(e) where the judgment contains a wrong
application of the law;
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;”
Article 823
“(1) The demand for a new trial shall not operate
so as to stay the execution of the judgment sought to be set aside.
(2) Notwithstanding the provisions of sub-article (1),
the court before which a new trial is demanded may, at the instance,
by application both before the Court of Appeal and before the court
of first instance, of the party making such demand, order a stay of
execution of the judgment if -
(a) together with his demand such party gives
sufficient security for the execution of the judgment, if it is not
set aside, including such security as is mentioned in
Article 266(10); and
(b) it is shown to the satisfaction of the court
that the execution of the judgment is likely to cause greater
prejudice to such party than the stay of execution would cause to the
opposite party.
(5) Where the enforcement of a judgment has been
authorised by the judgment sought to be set aside the provisions of
sub-articles (2), ... shall not apply.
(6) An appeal from a judgment disallowing the demand for
the stay of execution of the judgment sought to be set aside shall in
no case operate as a stay of execution of the latter judgment.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant company complained that the Court of Appeal as composed on
14 November 2005 had not been an impartial tribunal as provided in
Article 6 of the Convention, which 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.”
- The
Government contested that argument.
A. Admissibility
- The
Government argued that Article 6 was not applicable to the stay of
execution proceedings since the proceedings did not relate to a
determination of any civil rights or obligations. In the present
case, any civil rights or obligations had been finally determined by
the judgment of the Court of Appeal of 25 February 2005 which had
given the plaintiffs an executive title against the applicant
company, then defendant. Therefore, the only subject matter of the
impugned proceedings was simply whether or not to stay the execution
of the said judgment. The decision on the matter depended on whether
a sufficient guarantee had been given for the execution of the
judgment and whether its execution would have caused greater
prejudice to the requesting party than the stay would have had on the
other party. Thus, at no point did the court decide on any civil
right or obligation, either definitely or provisionally.
- The
Court reiterates that for Article 6 § 1 in its “civil”
limb to be applicable, there must be a dispute (“contestation”
in the French text) over a “civil right” which can be
said, at least on arguable grounds, to be recognised under domestic
law, irrespective of whether it is also protected under the
Convention. The dispute must be genuine and serious; it may relate
not only to the actual existence of a right but also to its scope and
the manner of its exercise; and, finally, the result of the
proceedings must be directly decisive for the right in question, mere
tenuous connections or remote consequences not being sufficient to
bring Article 6 § 1 into play (see, inter alia, Mennitto v.
Italy [GC], no. 33804/96, § 23, ECHR 2000 X, and Gülmez
v. Turkey, no. 16330/02, § 28, 20 May 2008).
- Moreover,
the execution of a judgment given by a court must be regarded as an
integral part of the “trial” for the purposes of Article
6 (see Hornsby v. Greece, 19 March 1997, § 40, Reports
of Judgments and Decisions 1997 II).
- The
Court notes that the impugned proceedings concerned the applicant
company’s request for the reconsideration and revocation of the
decision on the stay of execution of the judgment (ordering the
applicant company to perform works), pending the outcome of its
application for retrial, and its request for withdrawal of the
relevant judges.
- It
notes that Article 6 cannot be made to apply on the basis of the
request for withdrawal of the said judges which is entirely
procedural in nature and not determinative of civil rights and
obligations. However, the Court considers that the applicant
company’s other demand, namely its request for a stay of
execution of the judgment of the Court of Appeal of 25 February
2005, constitutes a corollary of the execution phase of that judgment
which is an integral part of the proceedings determining civil rights
and obligations and therefore engages the protection of Article 6.
That Article is therefore applicable to the stay of execution
proceedings.
- The
Court considers that this conclusion is reinforced by the Grand
Chamber’s judgment in Micallef v. Malta ([GC], no.
17056/06, ECHR 2009 ...) which confirmed the
applicability of Article 6 to preliminary or interim proceedings,
such as cases of injunctive relief, where certain conditions are
fulfilled. First, the right at stake in both the main and the
injunction proceedings should be “civil” within the
autonomous meaning of that notion under Article 6 of the Convention.
Second, the nature of the interim measure, its object and purpose as
well as its effects on the right in question should be scrutinised.
Whenever an interim measure can be considered effectively to
determine the civil right or obligation at stake, notwithstanding the
length of time it is in force, Article 6 will be applicable (§§
83-85).
- It
follows that Article 6 is applicable to the stay of execution
proceedings in the present case.
- The
Court further notes that the application is not manifestly ill-
founded within the meaning of Article 35 § 3 of the Convention.
It further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
- The
applicant company argued that when the members of the Court of Appeal
refused to withdraw from the case and continued to hear an appeal
against their own previous judgment, it suffered a violation of its
right to a fair hearing by an impartial tribunal. It was clear that a
bench of judges confirming their own judgment could not be considered
objectively impartial.
- The
Government submitted a priori that the applicant company had
never requested the withdrawal of the said judges on the basis that
they had delivered the appeal judgment on the merits of the claim on
25 February 2005. Thus, it appeared that the applicant
company had had no doubts as to the impartiality of the bench in that
respect.
- The
Government submitted that it was evident that there had not been any
signs of subjective impartiality on behalf of the bench of judges.
- As
to objective impartiality, the Government contended that the court’s
application of the law was consonant with the law as it stood in
respect of both requests. As to the judges’ refusal to withdraw
from the case, the law expressly provided that reconsideration was to
be made “by the court which delivered the decree”. As to
the dismissal of the request for reconsideration, after postponing
the case to later on that same day, the court concluded that the
judgment of 3 November 2005, rejecting the request for a stay of
execution, constituted a final judgment (as opposed to “a
decree”) and therefore Article 229 of the COCP, invoked by the
applicant company, did not apply. Thus, the court abstained from
taking cognisance of the merits of the claim. Therefore, the Court of
Appeal’s decision was purely of a procedural nature, and it
could not be said that it had decided a question of merits already
decided by the same formation. In such circumstances, there had not
been any violation of the fair trial principle.
- The
Court reiterates that according to its constant case-law, the
existence of impartiality for the purposes of Article 6 § 1 must
be determined according to a subjective test where regard must be had
to the personal conviction and behaviour of a particular judge, that
is, whether the judge held any personal prejudice or bias in a given
case; and also according to an objective test, that is to say by
ascertaining whether the tribunal itself and, among other aspects,
its composition, offered sufficient guarantees to exclude any
legitimate doubt in respect of its impartiality (see, inter alia,
Fey v. Austria, 24 February 1993, Series A no. 255, §§
27, 28 and 30, and Wettstein v. Switzerland, no.
33958/96, § 42, ECHR 2000-XII).
- As to the objective 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 that the courts in a democratic society must
inspire in the public (see Castillo Algar v. Spain, 28 October
1998, Reports 1998-VIII, § 45). It follows that, in
deciding whether in a given case there is a legitimate reason to fear
that a particular judge or a body sitting as a bench lacks
impartiality, the standpoint of the person concerned is important but
not decisive. What is decisive is whether this fear can be held to be
objectively justified (see Wettstein, cited above, § 44,
and Ferrantelli and Santangelo v. Italy, 7 August
1996, Reports 1996-III, § 58). In this respect, it
is necessary to look at the circumstances of the case (see San
Leonard Band Club v. Malta, no. 77562/01, § 62, ECHR
2004 IX).
- In
the instant case, the concerns regarding the Court of Appeal’s
impartiality stemmed from the fact that its bench on 14 December 2005
was composed of the same three judges who had previously decided the
applicant company’s request for a stay of execution “at
first-instance”.
- As
regards the subjective test, it has not been shown or argued that the
Court of Appeal held or manifested any personal convictions such as
to cast doubt on its subjective impartiality.
- As
regards the objective test, the Court reiterates that it is not prima
facie incompatible with the requirements of this provision if the
same judge is involved, first, in a decision on the merits of a case
and, subsequently, in proceedings in which the admissibility of an
appeal against that decision is examined (see Warsicka v. Poland,
no. 2065/03, § 40, 16 January 2007 and Eur. Comm. HR, R.M.B.
v. the United Kingdom, No. 37120/97, dec. 9 September 1998).
The assessment of whether the participation of the same judge in
different stages of a civil case complies with the requirement of
impartiality laid down by Article 6 § 1 is to be made on a
case-to-case basis, regard being had to the circumstances of the
individual case and, importantly, to the characteristics of the
relevant rules of civil procedure applied to the case. In particular,
it is necessary to consider whether the link between substantive
issues determined in a decision on the merits and the admissibility
of an appeal against that decision is so close as to cast doubt on
the impartiality of the judge (see Warsicka, cited above, §
40).
- It
is true that in the present case the applicant company did not have
the possibility of a further recourse in the terms of the Warsicka
case. Unlike in Warsicka, where the applicant had recourse to
the Supreme Court having a full remit to decide on the applicant’s
claims, in the instant case, the proceedings the applicant company
brought before the constitutional jurisdictions could only deal with
the impartiality issue and not with the admissibility or merits of
the applicant company’s request. Nevertheless, the absence of
such a review cannot alone be determinative. The Constitutional Court
found that the applicant company’s impartiality complaint was
unfounded. Having regard to the nature of the issues involved, namely
that the Court of Appeal concluded that Article 229 invoked by the
applicant company did not apply in those circumstances, as no appeal
lay against the final judgment delivered by the Court of Appeal on 3
November 2005, it considered that the fact that the same formation
gave a judgment on the merits of a case and subsequently decided that
the applicant’s request in the form of an appeal application
was null and void, could not be in violation of Article 6 (see
paragraph 13 above).
- As
in Indra v. Slovakia, (no. 46845/99, §§ 51-54, 1
February 2005) the Court considers it appropriate to examine whether
there was a close link between the issues examined by the Court of
Appeal on the two occasions at issue. In the present case, the
question determined by the Court of Appeal on 14 December 2005 was
not the same as the question which the Court of Appeal had determined
on 3 November 2005. In the November hearing the court was examining
the substance of the applicant company’s request for a stay of
execution. In the December decision, the court had to determine
whether the applicant company’s request for reconsideration
under Article 229 (4) of the COCP was compatible with domestic
law and procedure, and could be allowed. Only if that had been the
case could the court have carried out an examination of the merits, a
phase which never materialised in the circumstances of the case.
Thus, in the Court’s view, the scope of the examination
involved, which can be considered tantamount to an assessment of
admissibility, cannot be said to be the same or intrinsically linked
to the merits of the original claim.
- Hence,
the Court considers that, in the instant case, the Court of Appeal
when deciding on the applicant company’s request for
reconsideration under Article 229 was not called upon to assess and
determine whether, for example, sitting as a bench, it had correctly
applied the relevant domestic law to the applicant’s case or
whether or not it had committed an error of legal interpretation or
application in its previous decision (see San Leonard Band Club,
cited above). There was no such link between the substantive issues
determined on 3 November 2005 regarding the merits of a request for a
stay of execution and the decision of 14 December 2005 on
whether the applicant company had a legal avenue of access to an
appeal or reconsideration of the previous decision, which would cast
doubt on the impartiality of that court.
- Having
regard to the circumstances of the case taken as a whole, the Court
is of the view that it cannot be said that the applicant company’s
fears as to the impartiality of the Court of Appeal when examining
its request of 9 November 2005 were objectively justified.
- Accordingly,
there has been no violation of Article 6 § 1 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 22 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza Deputy
Registrar President
