CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 18 juin 2024

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She was represented before the Court by Dr T. Azzopardi, a lawyer practising in Valletta. 2.     The Government were represented by their Agent, Dr C. Soler, State Attorney, and their then Co-agent Dr J. Vella, then advocate at the Office of the State Attorney. 3.     The facts of the case may be summarised as follows. Background to the case 4.     The applicant’s father, Mr Carmelo Abela (hereinafter ‘C.A.’), was a registered port worker. On 31 July 1992 C.A. reached the age of retirement. As a result, his name was struck off the register of port workers. 5.     By means of a letter of the same date, the applicant submitted her application “to be registered in the Prospective Port Workers Register” to take up the post of port worker which had been vacated by her father. 6.     By means of a letter of 30 September 1993 the applicant was informed that her application was rejected, inter alia , because according to Article   13(1) of the Port Workers Regulations (hereinafter ‘the Regulations’) eligibility to fill a vacancy was “limited to the son, or to the elder from among the sons, of a port worker”. Ordinary proceedings 7 .     On 9 December 1993 the applicant instituted proceedings in front of the Civil Court (First Hall) in its ordinary jurisdiction (hereinafter ‘the civil court’) against the Port Workers Board (hereinafter ‘the Board’). She asked the court to: (i) order the defendant not to employ any other person to fill the vacancy left by her father; (ii) order the defendant “to allow her to register as a prospective port worker”; (iii) liquidate any damages that she may suffer as a result of the fact that the vacancy left by her father would be filled by another person; and (iv) order the defendant to pay such damages. 8.     Nevertheless, a few days later, on 2 January 1994, the license was attributed to her uncle who thereby became registered as a port worker. 9.     In a preliminary judgment of 7 May 1999, the civil court invited the applicant to file constitutional redress proceedings and suspended the examination of the case in the meantime. The first set of constitutional redress proceedings 10 .     On 8 June 1999 the applicant instituted constitutional redress proceedings. She asked the court to: (i) recognise that Article 13 of the Regulations was discriminatory on the basis of sex, within the meaning of Article 14 in conjunction with Articles 3 and 8 of the Convention; (ii) declare Regulation 13 and other Regulations null and without effect since they were discriminatory; and (iii) “order the defendant Port Workers Board to register the applicant in the Port Workers Register”. 11.     On 19 October 2000 the Civil Court (First Hall) in its constitutional competence (hereinafter ‘the FHCC’) upheld her claims and found that Article 13 of the Regulations was discriminatory, in light of the fact that only male children and brothers could be registered as prospective port workers, and eventually to become port workers, and there was no justification for this difference in treatment. Thus, the FHCC found a violation of Article 14 of the Convention, read in conjunction with Article 3. It declared null and without effect the Regulations limitedly to the parts where they made a distinction on the basis of sex and ordered the defendant “to allow ( iħalli ) the applicant to register as a port worker in the Register of Port Workers with retroactive effect from the date of 1 August 1992, in such a way that the requirements of Regulation 11(3) [1] of the same Legal Notice no.   90 of 1993 are satisfied” (citation from the third paragraph of the operative part of the judgment). 12.     By a judgment of 2 November 2001 the Constitutional Court confirmed the first-instance judgment providing, for the sake of clarity, that the third paragraph of the operative part of that judgment should be understood as meaning that the order issued to the defendant was “to allow ( jħalli ) the applicant to register as an eligible person to be considered as a port worker after the retirement of her father from work”. The continuation of the ordinary proceedings 13.     The authorities took no action following the judgment in the constitutional proceedings. In consequence, by means of a judicial letter of 14 February 2003, the applicant called upon the Board to register her. Various exchanges ensued where the parties disputed the interpretation of the Constitutional Court judgment, and the applicant remained unregistered. Consequently, proceedings before the ordinary jurisdiction were resumed in 2004. The applicant reached forty-five years of age in April 2007 and thus was no longer eligible. 14 .     By a judgment of 14 November 2012, the civil court awarded the applicant EUR 799,168 in damage ( damnum emergens and lucrum cessans ) suffered as a result of the discrimination, plus costs and legal interest. The figure represented the difference in earnings between those she would have made as a port worker and those she actually made as a bank employee until her retirement (excluding commissions). It made it clear that the damage being awarded was the result of the undignified attitude of the Board (supported by the Malta Maritime Authority) which had continued to raise obstacles to impede the applicant’s right despite the judgments delivered by different courts. 15.     By a judgment of 26 May 2017 the Court of Appeal reversed the first ‑ instance judgment and found against the applicant, considering that the defendants could not be held responsible for any damage allegedly suffered. Second set of constitutional redress proceedings 16 .     On 11 August 2017 the applicant instituted a second set of constitutional redress proceedings. Relying on Article 14, in conjunction with Article 3 of the Convention, she complained that she had again been subjected to a novel discriminatory treatment given the actions of the Board and the determination by the Court of Appeal in her case which led her to remain uncompensated despite the finding of the Constitutional Court to the effect that she had suffered discrimination, and a consequent change of law. Under Article 6 §   1 of the Convention she argued that the Court of Appeal judgment had revoked a res judicata judgment of the Constitutional Court. She further complained under Article 13 of the Convention that as a consequence she had been left without a remedy in respect of her original complaint of discrimination which had been upheld by the Constitutional Court. As a result, she had also suffered a violation of Article   1 of Protocol No.   1 to the Convention. She further complained about the length of the proceedings which had started in 1993 and ended in 2017. 17.     By a judgment of 29 November 2018, the FHCC found a violation of Article 6 § 1 of the Convention only in respect of the reasonable time requirement and awarded her EUR 10,000 in damages in that respect but dismissed the remainder of her claims. 18 .     The Constitutional Court dismissed the applicant’s appeal on 7   October 2019. It reiterated that the applicant had failed to register despite an invitation to do so. There had also been nothing unconstitutional in the Court of Appeal’s judgment. The Constitutional Court which had found that the applicant had suffered discrimination had not ordered any payment of damage but solely a restitutio in integrum , namely she had been put in the position she would have been in had there been no discriminatory criteria applied. Subsequent events 19 .     The Regulations were amended in 2002 removing the discrimination on the basis of sex. The iter of the application form 20 .     According to the evidence submitted to the Court, the application form and relevant documents totalling approximately 1.6 Kg (hereinafter ‘the item’ for postal purposes), appropriately addressed to the Court, was sent by registered mail on 16 March 2020. At the time, however, it did not reach the Court. While it appears to have reached France it was then returned. 21.     According to the Maltese postal service website, the item was returned to Malta, Parcel Office, inbound mail, on 6 October 2020. It was held at the inbound mailing centre at the “sender’s request” waiting for it to be forwarded/redirected. On 20 February 2021 the item was forwarded to the Marsa Head Office for collection. It was collected by “the recipient” on the same day. 22.     In the meantime, on 2 February 2021, the applicant’s legal representative wrote to the Court enquiring about the application form and on 18 February 2021 he was informed that no application form in the name of the applicant had reached the Court. 23 .     At observation stage, the applicant’s legal representative explained that a “final” notice from the post office dated 9 October 2020 (a copy of which was sent to the Court and shows the legal representative as the “addressee” and the sender as “N/A”) only reached him on 20 February 2021, the date on which he retrieved the parcel upon relevant formalities. He claimed that no previous notices had been received. The notice explained that customs had retained the item and required the applicant’s legal representative (as addressee) to make a customs declaration for the item to be released by customs, in the absence of which it would be returned to “the sender”. 24.     The application form and documents were once again dispatched to the Court on 9 March 2021. COMPLAINTS 25.     The applicant complained that the authorities had failed to enforce a judicial decision in her favour contrary to Article 13. She further complained that (i) she remained a victim of the violation upheld by the Constitutional Court of Article 14 in conjunction with Article 3 of the Convention, and (ii) that the Board’s actions and inaction following that judgment constituted a fresh act of discrimination under those provisions. THE LAW The parties’ submissions 26.     The Government submitted that the application was inadmissible as being lodged out of time, namely for failure to comply with the six months’ time-limit at the relevant time. They considered that, even assuming that domestic remedies had been exhausted only at the end of the second set of constitutional redress proceedings (by judgment of 7 October 2019), the application was nonetheless submitted on 9 March 2021, and therefore out of time. The same applied even if the extension granted by the Court in relation to Covid-19 was to apply in the present case. 27.     Nevertheless, the Government considered that the exhaustion of domestic remedies process was to be considered as having come to an end on the first round of constitutional redress proceedings or at latest at the end of the ordinary proceedings. 28 .     In reply to the applicant’s explanations concerning the posted item, the Government submitted that, according to the Maltese postal service website, the item had returned to Malta on 6 October 2020 and held at the sorting centre on the “sender’s request”. They were therefore of the view that the applicant had been aware that the item was returned and yet waited for over four months to pick it up. Moreover, once the item had been picked up, it was sent again to the Court nearly three weeks later, on 9 March 2021 and no explanation had been submitted to justify such a delay. Nor had any evidence been provided showing that the application sent to the Court on 9   March 2021 was the same as that previously sent. 29.     The applicant submitted that the final domestic judgment in her case was delivered on 7 October 2019, and that she had sent her application to the Court on 16 March 2020, within the six-month time-limit (and irrespective of any Covid-19 extension). Referring to the explanations about the iter of the application (see paragraphs 20 et seq. above) she considered that she could not be held responsible for the actions of the French or Maltese postal services. The Court’s assessment General principles 30.     According to Article 35 § 1 of the Convention, as stood before the entry into force of Protocol No. 15 to the Convention (1 August 2021), the Court could only deal with the matter if the relevant complaint was raised within a period of six months. Article 4 of Protocol No. 15 has amended Article 35 § 1 to reduce the period from six to four months. According to the transitional provisions of the Protocol (Article 8 § 3 in fine ), this amendment applies only after a period of six months following the entry into force of the Protocol (as from 1 February 2022), in order to allow potential applicants to become fully aware of the new deadline (see, Orhan v. Turkey (dec.), no.   38358/22, § 28, 6 December 2022). Furthermore, the new time-limit does not have a retroactive effect, since it does not apply to applications in respect of which the final decision within the meaning of Article 35 § 1 of the Convention was taken prior to the date of entry into force of the new rule (see the Explanatory Report to Protocol No.15, § 22). 31.     As a rule, the period of six months, which is applicable in the present case, runs from the date on which the final decision in the process of exhaustion of domestic remedies has been taken (see Blokhin v.   Russia [GC], no.   47152/06, §   106, ECHR   2016; Mocanu and Others v. Romania [GC], nos.   10865/09 and 2 Others, § 259, ECHR 2014 (extracts)), Diamante and Pelliccioni v. San Marino , no. 32250/08, § 220, 27 September 2011; and Ellul v.   Malta (dec.), no. 18790/07, 8 September 2009). 32.     When lodging their applications with the Court, applicants are expected to take reasonable steps to inform themselves, inter alia , about the time-limit provided for in Article 35 § 1 of the Convention and act accordingly to comply with that time-limit (see Sabri Güneş v.   Turkey [GC], no.   27396/06, § 61, 29 June 2012). However, applicants cannot be held responsible for any delays that may affect their correspondence with the Court in transit; to hold otherwise would mean unjustifiably shortening the six-month period set forth in Article 35 § 1 of the Convention and negatively affecting the right of individual petition (see Anchugov and Gladkov v.   Russia , nos. 11157/04 and 15162/05, § 70, 4 July 2013). The Court has already held that the date of the postmark recording on which day the application was sent is treated as the date of the application, and not the date of receipt stamped on the application (see, for example, Brežec v.   Croatia , no.   7177/10, § 29, 18 July 2013). Therefore, it is the dispatch date which is of relevance to the six-month period provided by Article   35 § 1 of the Convention (see Vasiliauskas v.   Lithuania [GC], no.   35343/05, §   117, ECHR   2015). 33.     The Court reiterates that time ‑ limits, such as that of the six ‑ months applied by the Court are intended to promote security of the law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. It protects the authorities and other persons concerned from uncertainty for a prolonged period of time. Finally, it ensures that, insofar as possible, matters are examined while they are still fresh, before the passage of time makes it difficult to ascertain the pertinent facts and renders a fair examination of the question at issue almost impossible. In assessing whether an applicant has complied with Article 35 §   1, it is important to recall that the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period are closely interrelated (see Jeronovičs v.   Latvia [GC], no. 44898/10, §§ 74-75, 5 July 2016 and Farrugia v   Malta , no.   63041/13, § 82, 4 June 2019). 34.     Article 35 § 1 of the Convention requires that complaints intended to be made subsequently before the Court should have been made to the appropriate domestic body, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits, and further that any procedural means that might prevent a breach of the Convention should have been used (see Akdivar and   Others v.   Turkey , 16   September 1996, § 66, Reports 1996 ‑ IV; Chiragov and Others v.   Armenia [GC], no. 13216/05, § 116, ECHR 2015; and Muršić v.   Croatia [GC], no.   7334/13, § 70, ECHR 2016). However, Article 35 § 1 allows only remedies which are normal and effective to be taken into account as an applicant cannot extend the strict time ‑ limit imposed under the Convention by seeking to make inappropriate or misconceived applications to bodies or institutions which have no power or competence to offer effective redress for the complaint in issue under the Convention (see Lopes de Sousa Fernandes v.   Portugal [GC], no. 56080/13, § 132, 19 December 2017). It follows that the pursuit of inadequate or ineffective remedies will have consequences for the identification of the “final decision” and, correspondingly, for the calculation of the starting point for the running of the six-month rule (see Zaghini v. San Marino , no. 3405/21, § 47, 11 May 2023, and the case-law cited therein). Application to the present case 35 .     The Court observes that although related, the second set of constitutional redress proceedings concerned the actions of the Board and the determination of the Court of Appeal following the Constitutional Court’s judgment of 2 November 2001, which according to the applicant constituted novel discrimination, depriving her of any remedy in respect of the original discrimination suffered (see paragraph 16 above), and not a determination of the discriminatory nature of the Regulations prior to that judgment, which had already been decided upon in the first set of constitutional redress proceedings. They therefore were not of a repetitive nature, or devoid of any prospects of success, so much so that the constitutional jurisdictions in the second set of proceedings examined her complaints (see, a contrario , Barc Company Limited v. Malta (dec.), no.   38478/06, § 23, 21 September 2010). Thus, the Court is ready to accept that in the circumstances of the present case the process of exhaustion of domestic remedies came to an end by means of the Constitutional Court’s judgment of 7 October 2019. 36.     As to whether the application was lodged within six months of that date the Court notes as follows. The application was originally dispatched on 16 March 2020, and therefore within the six months’ time-limit from the final domestic decision of 7 October 2019. However, due to a postal malfunction, while the item reached France, it was not deposited with the Council of Europe and was returned to Malta, nearly six months later, on 6 October 2020. The Court cannot but note that the relevant period coincided with the Covid ‑ 19 lockdown in France, and it is common knowledge that postal services were severely disturbed during such time. 37.     The Government claimed that, once the item reached Malta, it had been held by the post office on a request by the applicant (or her representative) (see paragraph 28 above). The Court cannot accept this claim. While it is true that the Maltese postal website states that it was held at “the sender’s request”, there is no indication of who was considered as “the sender” at that stage, namely when the item was being returned. Indeed, the same website shows that the item was eventually collected by “the recipient”, the latter being the applicant’s representative. This being so, he could not be considered as also being the sender at that point. Furthermore, the customs notification refers to the applicant’s legal representative as the addressee, and the customs notice precisely states that it was the customs that decided not to release the item pending the required action from the addressee - in the absence of which it would have been returned to “the sender”. It is thus certain that “the sender” was not referring to the applicant or her legal representative. 38.     It remains unclear why the Maltese customs authorities felt the need to hold on to an item addressed to the European Court of Human Rights, even more so in a context of a delivery from Malta to France, and back, and therefore within the borders of the Schengen area. 39.     It also remains unclear, in the absence of any available evidence to that effect, whether the applicant’s legal representative had been sent any notices about the item prior to the “final notice” dated 9 October 2020, which he claimed to have received only on 20 February 2021 (the date on which the item was collected). Similarly, no evidence has been submitted as to the date of receipt of the final notice as the evidence submitted only refers to the date of the collection of the item but gives no indication of when the final notice was sent or received. While the applicant’s legal representative’s inquiry to the Court on 2 February 2021 could, on the one hand, give some credence to the submitted version of events, on the other hand, the timing of the query raises a doubt as to when the legal representative actually received the postal notification. Furthermore, the Court considers that the item having been sent by registered mail, it would have certainly been simpler to verify the situation on the Postal Service website, at any point in time since the item had been sent in March 2020 rather than enquiring with the Court months later. 40.     Nevertheless, and even assuming that the applicant’s legal representative had only received the notification on 20 February 2021, the date when it was collected, the Court agrees with the Government that no explanation has been submitted justifying the delay of more than two weeks to dispatch the application afresh (see, mutatis mutandis ,   Anchugov and Gladkov , § 72, cited above, concerning a difference between the date of the first letter – relevant at the time of that case – and dispatch of the application). In these circumstances, while the postal delays were certainly regrettable and cannot be attributed to the applicant, it cannot be said that the applicant pursued her interests diligently. It follows that the application must be considered as having been introduced on 9 March 2021. 41.     In consequence, the Government’s objection must be upheld and the Court finds that the application, which was introduced more than six months after the Constitutional Court judgment of 7 October 2019, is out of time and must be rejected in accordance with Article   35   §§   1 and   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 11 July 2024.     Hasan Bakırcı   Arnfinn Bårdsen   Registrar   President [1] These concerned the requirements to fill a vacancy of port worker and related to age, health and a clean conduct.