CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 janvier 2008

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margin-bottom:0pt; line-height:150%; font-size:10pt }     FOURTH SECTION     CASE OF MICALLEF v. MALTA     (Application no. 17056/06)       JUDGMENT       STRASBOURG     15 January 2008     THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 15/10/2009     This judgment may be subject to editorial revision. In the case of Micallef v. Malta, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Nicolas Bratza, President ,   Giovanni Bonello,   Kristaq Traja,   Lech Garlicki,   Ljiljana Mijović,   Ján Šikuta,   Päivi Hirvelä, judges,   Lawrence Early, Section Registrar , Having deliberated in private on 11 December 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 17056/06) against Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr   Joseph Micallef (“the applicant”) on 15 April 2006. 2.     The applicant was represented by Dr T. Azzopardi, a lawyer practising in Valletta (Malta). The Maltese Government (“the Government”) were represented by their Agent, Mr S. Camilleri, Attorney General. 3.     The applicant alleged that Mrs M. had been denied a fair hearing before an impartial tribunal contrary to Article 6 of the Convention. 4.     On 5 September 2006 the Court decided to communicate the complaint concerning the fairness of the appeal proceedings and the alleged lack of impartiality of the Court of Appeal to the Government and declared the rest of the application inadmissible. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the complaint at the same time as its admissibility. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant is a Maltese national and lives in Vittoriosa. A.     Background of the case 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. B. Proceedings before the Civil Court in its ordinary jurisdiction 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. C. Proceedings before the Court of Appeal 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. D. Proceedings before the Civil Court in its constitutional jurisdiction 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. E. Proceedings before the Constitutional Court 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. II.     RELEVANT DOMESTIC LAW AND PRACTICE 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;” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21.     The applicant complained that the Court of Appeal had lacked impartiality and that Mrs M. had consequently been denied the opportunity to make submissions, in breach of her right to a fair hearing 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.” 22.     The Government contested that argument. A.     Admissibility 1. Victim status 23.     The Court must first address the question of Mr Micallef’s right to pursue the application, since his sister, who had brought the proceedings in question, died before making any application to the Court. 24.     The existence of a victim of a violation, that is to say, an individual who is personally affected by an alleged violation of a Convention right, is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings (see Karner v. Austria , 40016/98, § 25, ECHR 2003-IX). 25.     The Court, through its jurisprudence, has developed various criteria to determine whether an applicant can be considered to have victim status after the death of the “direct” victim. The Court normally permits the next-of-kin to pursue an application provided he or she has sufficient interest, where the original applicant has died after the introduction of the application before the Court (see Malhous v. the Czech Republic (dec.), no.   33071/96, ECHR 2000 ‑ XII). However, the situation is more complex where the direct victim dies before lodging an application in Strasbourg (see Sanles Sanles v. Spain , (dec.), no.   48335/99, ECHR 2000 ‑ XI; Marie-Louise Loyen and Bruneel v. France , no.   55929/00, 5 July 2005; Biç and Others v. Turkey , no.   55955/00, 2 February 2006; and Ressegatti v. Switzerland no.   17671/02, 13 July 2006). Different criteria apply depending on the Convention right in issue. 26.     Where the proposed application primarily concerns a complaint under Article 6 of the Convention, the Court interprets the concept of victim autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act ( see Sanles Sanles, cited above). However, the fact that an applicant had been a party to the domestic proceedings, though by itself not sufficient and not always indispensable, can be considered as a preliminary step to be able to bring proceedings before the Court. Indeed in Nolkenbockhoff v Germany , (judgment of 25 August 1987, Series A no.   123-A, §   33), while holding that the widow had a material and legitimate interest to pursue proceedings under the Convention, the Court also noted that the Federal Constitutional Court, whose individual recourse procedure was similar to that of the Convention, had not rejected the applicant’s request for lack of victim status. Its preliminary nature was further highlighted in Georgia Makri and others v. Greece ((dec.), no. 5977/03, 24 March 2005), where the Court held that relatives of a deceased person could not be considered as victims in respect of complaints concerning, inter alia , Article 6 - length of proceedings - since they had not participated in their own name in the domestic proceedings at issue nor had they intervened as heirs in the proceedings before the “Conseil d’Etat” after the direct victim’s decease. 27.     Where the applicant has himself become a party to domestic proceedings, a further set of criteria has been applied. In Sanles Sanles (cited above) a complaint concerning Article 6 § 1 - length of proceedings - victim status had been supposed in favour of the applicant and therefore held to be a transferable right. In Loyen (cited above, § 29) victim status was again upheld in respect of Article 6 § 1 - length of proceedings and fair trial - both in view of the fact that it raised an issue of general interest and because the heirs had a legitimate interest in continuing the complaint. In Ressegatti (cited above, § 25) victim status in respect of Article 6 – fair trial - was upheld on the basis of the direct effect on the applicant’s patrimonial rights. On the contrary, in Biç and Others (cited above) the Court held that the applicants were not affected by the length of the criminal proceedings and there existed no general interest which required it to examine the complaint under Article 6. 28.     In the present case the Court notes that the direct victim survived the proceedings giving rise to the alleged violation. She further instituted constitutional proceedings before the Civil Court in order to redress the alleged violation and died while these were pending. The Court notes that in the Maltese legal system, the institution of constitutional proceedings is the only way to seek redress in such cases and is a required step in order to exhaust remedies before bringing proceedings before this Court. Thus, the Court is persuaded that Mrs M. wished to complain about the alleged breach. 29.     The Court further notes that on Mrs M.’s death, the Civil Court (constitutional jurisdiction) did not reject the applicant’s request to intervene in the proceedings before it in his capacity as brother of the plaintiff, nor was there any opposition to him appealing to the Constitutional Court – the last remedy required to be exhausted before the complaints could be introduced under the Convention. 30.     The Court further recalls that it has discretion as regards the granting of victim status when the complaint relates to an issue of general interest (see Karner , cited above, § 25). It reiterates the Commission’s position in relation to the instances when a question of general interest affecting the observance of the obligations undertaken by the High Contracting Parties would justify a further examination of the application: - “Such a situation can arise in particular where an application in fact concerns (...) the legislation or a legal system or practice of the defendant state (see Kofler v. Italy , Decisions and Reports no. 30, p. 9, § 18).   This might be so in particular where not only an individual case but also legislation, or a legal system or practice were at issue (see Altun v Germany , Decisions and Reports no. 36, p. 9, § 18).” 31.     The Court is of the view that the question of a defect in the relevant law which made it impossible to challenge a judge on the basis of his or her relationship with a party’s advocate (see paragraph 79 below), is a matter of sufficient general interest, in particular for the Contracting State concerned, since it goes to the fundamental issue of the impartiality requirements of a tribunal. Thus, the applicant’s complaint fulfils the general interest criterion. 32.     The Court further notes that the Maltese Government have not raised any objection relating to the applicant’s victim status, or lack of it. 33.     In conclusion, the Court considers that for the foregoing reasons the applicant has standing to introduce the present application. 2. The Government’s objection ratione materiae 34.     The Government submitted that Article 6 was not applicable to the proceedings before the Court of Appeal. 35.     They submitted that no determination of a civil right or obligation arose from the injunction proceedings, since they did not involve any determination of the merits of the right or obligation claimed. Consequently, the proceedings before the Court of Appeal, in which Mrs M. had requested that the injunction proceedings be declared null and void, were not decisive of any civil right or obligation. 36.     The applicant submitted that the proceedings complained of were formal proceedings commenced by writ of summons before the Court of Appeal which were concluded by a judgment at first instance and on appeal. Consequently, unlike injunction proceedings, which were merely preliminary proceedings and were concluded by a decree, the proceedings at issue were indeed decisive of civil rights and obligations. 37.         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. 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 (see Pudas v. Sweden, judgment of 27 October 1987, Series A no. 125-A, p. 14, § 31). The character of the legislation which governs how the matter is to be determined (civil, commercial, administrative law, etc.) and that of the authority which is invested with jurisdiction in the matter (ordinary court, administrative body, etc.) are therefore of little consequence (see Ringeisen v. Austria, judgment of 16 July 1971, Series A no. 13, p. 39, § 94). 38.     Preliminary proceedings, such as those concerned with the grant of an interim measure such as an injunction, are not normally considered to be decisive of civil rights and obligation and do not therefore normally fall within the protection of Article 6 unless the character of the interim decision exceptionally otherwise requires (see Markass Car Hire Ltd v. Cyprus , (dec.), no. 51591/99, 23 October 2001. 39.     However, the second set of proceedings involved the determination of the question whether a party to post-injunction proceedings had a right to be heard. The Court reiterates that Article 6 is applicable to matters which are not strictly of an economic nature, such as, inter alia , the right to a healthy environment (see Taskin and others v Turkey , judgment of 10 November 2004, Reports of Judgments and Decisions 2004-X), the right to liberty (see Laidin v. France (no. 2) , no. 39282/98, 7 January 2003), the right to a good reputation ( see Helmers v. Sweden , 29 October 1991, series A n o 212 ‑ A) and the right of access to administrative documents (see Loiseau c. France (dec.), no. 46809/99, 18 November 2003, ECHR 2003-XII). 40.     The Court notes that the court of first instance upheld Mrs M.’s complaint on the basis of domestic law or at least an interpretation of such. While it is true that the complaint was subsequently rejected, the Court of Appeal may be regarded as having examined the merits of the application and in so doing determined the dispute over the right to be heard (audi alteram partem). In such a situation where it appears that the domestic law and practice of the respondent State recognised that there existed a right to be heard during injunction proceedings, the Court considers that the applicant could claim on at least arguable grounds that the proceedings were covered by Article 6 (see, inter alia , Neves e Silva v. Portugal , judgment of 27   April 1989, Series A no. 153-A, p. 14, §   37). 41.   The Court recalls its judgment in Eskelinen v. Finland ([GC], no. 63235/00, 19 April 2007, § 61), where it introduced the new concept that, independently of the Court’s autonomous application of Article 6, its applicability would be recognised by the Court, if the domestic system had recognised it formerly: “If a domestic system bars access to a court, the Court will verify that the dispute is indeed such as to justify the application of the exception to the guarantees of Article 6. If it does not, then there is no issue and Article 6 § 1 will apply .”(emphasis added) In other words Eskelinen recognised the principle that Article 6 protection should not be less in Strasbourg than under the domestic system. 42.     Moreover, no plea of inapplicability of Article 6 was raised in the domestic proceedings, a factor which has previously been given weight in the debate regarding the applicability of Article 6 (see San Leonard Band Club v. Malta , judgment of 29 July 2004, ECHR 2004-IX, § 46). 43.     The Court notes that the applicant put forward his complaint before the Civil Court in its constitutional jurisdiction and that the Government did not raise any plea as to the inapplicability of Article 6; nor did the domestic court raise such a matter of its own motion, as both could and should have done had they considered Article 6 inapplicable. On the contrary, the Government disputed the merits of the application and the violation or otherwise of Article 6, and the Civil Court rejected the claim only after a thorough analysis of Article 6 in relation to the merits. Thus, it appears that the applicability of Article 6 to post-injunction proceedings was so clearly established in the Maltese legal system that it did not need to be further established and neither the Government nor the domestic court saw fit to question its applicability to post-injunction proceedings. 44.     The Court reiterates that through its system of collective enforcement of the rights it establishes, the Convention reinforces, in accordance with the principle of subsidiarity, the protection afforded at national level (see United Communist Party of Turkey and Others v. Turkey , judgment of 30 January 1998, Reports 1998-I, p. 17, §   28), but never limits it ( Article 53 of the Convention). The Court does not countenance the view that human rights protection in any particular area should be weaker in Strasbourg than it is in domestic tribunals. 45.     That being so, the Court notes that the concept of “civil right” under Article 6 § 1 cannot be construed as limiting an enforceable right in domestic law within the meaning of Article 53 of the Convention (see Okyay and Others v. Turkey , no. 36220/97, § 68, 12 July 2005). 46.     Moreover, Article 6 reflects the fundamental principle of the rule of law which underpins the whole Convention system and is expressly referred to in the Preamble to the Convention (see Golder v United Kingdom , judgment of 21 February 1975, Series A no. 18, p. 16, § 34). In a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6 § 1 would not correspond to the aim and the purpose of that provision (see, mutatis mutandis , Delcourt v. Belgium , no. 2689/65, § 25 in fine , 17 January 1970, Series A no. 11) and this restriction must be very compellingly established. 47.     In sum, Article 6 is applicable in the instant case and the application falls within the jurisdiction of the Court ratione materiae . Consequently, the Government’s objection is dismissed. 3. The Government’s objection of non exhaustion of domestic remedies. 48.   The Government submitted that it did not appear that at any stage of the appeal proceedings a complaint had been registered or submitted to the Court of Appeal regarding the lack of opportunity to make submissions; nor had any application been made in order to allow Mrs M.’s legal counsel to make further oral or written submissions. 49.     Consequently, it appeared that the only issue was whether the Chief Justice should have continued to sit in the Court of Appeal, given that his brother was appearing for one of the parties to the proceedings. The Government submitted that Mrs M. had never requested that the Chief Justice withdraw from the case, a plea which would not have been decided by the Chief Justice alone, but by the three judges sitting in the case. According to the Government, since Mrs M. believed that the Chief Justice should have withdrawn she should have made such a request under Article 734(e) (see Relevant Domestic Law above) which reflected the nemo iudex in causa propria rule in general. The Government made reference to various domestic decisions in which the courts had repeatedly attributed overriding importance to the fact that justice should not only be done but be seen to be done and that this had been an acknowledged legitimate ground for the withdrawal of or challenge to a judge. 50.     Moreover, Mrs M. could have raised the issue under Article 6 of the Convention and Article 30 of the Constitution, which specifically permitted the raising of such an issue during the court case and which, unless deemed frivolous and vexatious, would have been referred to the competent court for decision. Alternatively, she could have directly lodged such an application with the Constitutional Court in view of the fact that her rights were being or were likely to be infringed. However, Mrs M. failed to take any of the above measures and therefore the application should be declared inadmissible for non-exhaustion of domestic remedies. 51.     The applicant submitted that the grievance arose on 12 October 1992, the date of the hearing of the appeal lodged by the opposing party, when the Chief justice had expressed a mistaken and already formed opinion which had weighed heavily in the balance. Due to the Chief Justice’s anger and consequent suspension of the hearing (for judgment), there had been no opportunity to register a complaint regarding the conduct of the hearing. 52.     The Chief Justice must have known before the hearing that he would be raising the issue about his brother. However, Mrs M. and her legal counsel had had no idea of this and until the moment of the incident had had no reason to complain. Furthermore, the incident seemed to have been defused when the Chief Justice could not find any denigrating reference to his brother in the records of the case. Thus, Mrs M.’s legal counsel, who had claimed to have been reassured by this, had been under the impression that the matter had ended, at least until the appeal judgment had been delivered, some months later, which again made reference to the accusation. 53.     Subsequently, Mrs M., who was later succeeded by the applicant, lodged a constitutional complaint with the Civil Court and appealed against the latter’s decision to the Constitutional Court in proceedings which dragged on from 1993 to 2005. Consequently, it was evident that the applicant had exhausted available domestic remedies. 54.     The Court reiterates that, in accordance with Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of this rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). 55.     Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits (see Zarb Adami v. Malta (dec.), no. 17209/02, 24 May 2005). 56.     In the present case, the Court observes that a request under Article 734 (e) as suggested by the Government would not have been a proper remedy in accordance with the rule lex specialis derogat generalis . Article 734 (f) specifically referred to family relationships, but excluded siblings. Had the legislator intended to cover siblings it would have been included specifically in accordance with the principle ubi voluit dixit, ubi noluit tacquit . Thus, the Court considers that the applicant could not have challenged the Chief Justice under Article 734 of the Code of Organisation and Civil Procedure, since at the time a sibling relationship between advocate and judge was not amongst the listed grounds for challenge. 57.     The Court notes that after the judgment complained of, Mrs M., succeeded by the applicant, instituted constitutional proceedings before the Civil Court (First Hall) alleging a breach of the right to a fair trial as guaranteed by Article 6 of the Convention in view of the Court of Appeal’s lack of impartiality and the lack of opportunity to make submissions before it. The applicant further appealed to the Constitutional Court against the Civil Court’s judgment rejecting his claim. The Court considers that in raising this plea before the domestic constitutional jurisdictions, which rejected the Government’s objection of non-exhaustion of domestic remedies and did not reject the claims on procedural grounds but examined the substance of the claim, the applicant has made normal use of the remedies which were accessible to him and which related, in substance, to the facts complained of at the European level (see, mutatis mutandis , Zarb Adami , cited above). The mere fact that the applicant could have attempted to remedy the alleged violation in alternative ways throughout the different stages of the proceedings (see paragraph 50 above) does not alter this conclusion. 58.     It follows that the application cannot be rejected for non-exhaustion of domestic remedies and that the Government’s objection should be dismissed. 4.     The Court’s decision on admissibility 59.     In conclusion, the Court finds that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, or inadmissible on any other grounds. They must therefore be declared admissible. B.     Merits 1. The observations of the parties (a) The applicant 60.     The applicant submitted that the appeal hearing of 12 October 1992 and the subsequent judgment had violated Mrs M.’s right to a fair hearing. 61.     The applicant submitted that the Chief Justice had been biased on account of the fact that his brother had been the lawyer of the opposing party during the injunction proceedings. Notwithstanding that the Chief Justice must have known that the issue relating to his brother’s behaviour was going to be raised, he had not withdrawn and, as transpired also from the events in question, his objectivity was open to doubt, thus causing justified fears about his lack of impartiality. The same had been confirmed upon delivery of the judgment in that a part of the judgment read as follows: “The plaintiff’s lawyer, after he and the plaintiff had left the court room, affirms facts which are alleged to have taken place and does not hesitate at all to hypothesise about the conduct of another lawyer and of the judge.” This comment had been made in response to a question put by counsel, which had been based on concrete information. No wrongdoing had been attributed to anyone, neither to the brother of the Chief Justice nor the Chief Justice himself. 62.   The applicant contested the assessment of the evidence during the appeal proceedings and considered the appeal hearing and subsequent judgment as a negation of justice. 63.     The applicant disputed the Government’s argument regarding the Chief Justice’s career record and stated that on several occasions in separate constitutional redress proceedings the constitutional courts had upheld violations of the right to a fair hearing in cases presided over by the Chief Justice. In the present case, the Chief Justice had manifested serious bias which could be seen as linked to his family ties, and consequently the Court of Appeal had not been an impartial tribunal within the meaning of Article 6 § 1 of the Convention. 64.   The applicant moreover complained that the behaviour of the Chief Justice had made it impossible for Mrs M.’s legal counsel to put forward any arguments. Consequently, the right to make oral submissions at the appeal stage had not been respected and in fact the appeal had been decided and the first judgment set aside without his ever having had the opportunity of making any submissions on the merits. 65.     The applicant made reference to the evidence submitted during the proceedings. He reiterated the sequence of events: the fact that the Chief Justice had been annoyed and angry and that the atmosphere had been tense; during that time everyone had stood in silence; the hearing had then been suspended and was never resumed. Moreover, the applicant submitted that the Government, which had not been present at the proceedings, were not in a position to state whether or not all submissions had been made. (b) The Government 66.   In respect of the impartiality issue   the Government submitted that had Mrs M. harboured concerns she would have challenged the judge. She had not done so. Moreover, her legal counsel had himself said that after the meeting in chambers he had been satisfied that no bias existed and he had not added anything regarding his submissions. In addition, bias had only been alleged after the judgment was delivered, four months after the incident. Consequently, the applicant’s sister adopted a “wait and see attitude”, resulting in her claim before the constitutional courts being rejected as frivolous and vexatious. 67.     According to the Government, the said judgment did not disclose any bias on the part of the Chief Justice. On the contrary, it was a detailed and objective judgment which dispassionately analysed the facts and the legal issues involved, thus showing that the court had reached a decision in accordance with existing domestic case-law. No link was apparent between the reasoning and conclusions of the judgment and the incident of 12 October 1992. 68.     The Government submitted that in the period of almost seven years in which the Chief Justice had served as a judge, he had dealt with scores of cases where one of the lawyers had been his nephew and this was the only case where the issue of impartiality had been raised. 69.     In so far as the complaint referred to Mrs M.’s alleged lack of opportunity to make submissions, the Government submitted that she had had a fair hearing and that the principle of equality of arms had been respected since she had not suffered any disadvantage during the proceedings. There was nothing to indicate that Mrs. M had not been given the opportunity to make oral submissions. The fact that one of the judges had raised questions, as he was duly entitled to do, even if in a robust and raised voice, in the course of the applicant’s lawyer’s submissions, did not mean that her lawyer had not been able to complete them. The Government contested the allegation that her counsel had been prevented from making submissions, since irrespective of the length of these submissions he had still been allowed to make them. The essence of the counsel’s argument was that the date of the adjourned hearing had been changed without his own or his client’s knowledge, with the result that they had not been present at the date of the adjourned hearing and consequently the warrant had been issued in violation of the audi alteram partem principle, an argument which, in the Government’s view, had been amply made. 2. The Court’s assessment   (a) The general principles 70.     The existence of national procedures for ensuring impartiality, namely rules regulating the withdrawal of judges, is a relevant factor. Such rules manifest the national legislature’s concern to remove all reasonable doubts as to the impartiality of the judge or court concerned and constitute an attempt to ensure impartiality by eliminating the causes of such concerns. In addition to ensuring the absence of actual bias, they are directed at removing any appearance of partiality and so serve to promote the confidence which the courts in a democratic society must inspire in the public (see Mežnarić   v. Croatia , no.   71615/01, §   27, 15 July 2005). The Court will take such rules into account when making its own assessment as to whether the tribunal presided by the Chief Justice was impartial and, in particular, whether the applicant’s fears can be held to be objectively justified (see, mutatis mutandis , Pescador Valero v. Spain , no.   62435/00, §§ 24-29, ECHR 2003-VII) 71.     According to the Court’s 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 , judgment of 24   February 1993, Series A no. 255, p. 12, §§ 27, 28 and 30, and Wettstein v.   Switzerland , no. 33958/96, § 42, ECHR 2000-XII). It must be decided in each individual case whether the relationship in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (see Pullar v. the United Kingdom , judgment of 10 June 1996, Reports 1996-III, p.   794, § 38). 72.     As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see Wettstein v.   Switzerland , cited above, § 43). As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill-will for personal reasons (see De Cubber v. Belgium , judgment of 26 October 1984, Series A no. 86, p.   14, § 25). 73.     The Court has recognised the difficulty of establishing a breach of Article 6 on account of subjective partiality and for this reason has in the vast majority of cases raising impartiality issues focused on the objective test. However, there is no watertight division between the two notions since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test) (see Kyprianou   v. Cyprus [GC], no.   73797/01, § 119, ECHR 2005 ‑ ....). 74.     As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge 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 , judgment of 7   August 1996, Reports 1996-III, pp.   951-52, §   58). 75.     In this respect even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done” (see De Cubber v. Belgium , judgment of 26   October 1984, Series A no. 86, p. 14, § 26). What is at stake is the confidence which the courts in a democratic society must inspire in the public (see Wettstein loc. cit.; and Castill