CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 juin 2025

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color:#ffffff } .s3E39F0D2 { width:24.22pt; display:inline-block } .sA0993303 { width:139.09pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } .s67CAFE05 { margin-top:14pt; margin-left:18.45pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase } FOURTH SECTION CASE OF A AND B v. MALTA (Application no. 4986/24)   JUDGMENT   Art 6 § 1 (civil) • Impartial tribunal • Judge’s former lawyer in separation proceedings appeared before her as a representative of the applicant’s opposing party in proceedings concerning the latter’s contact rights in respect of their child • Lawyer’s mandate had ended seven months prior to start of impugned proceedings • Sufficient time had passed to dilute professional ties and dispel any fears of partiality • Judge’s choice not to raise issue of her own motion, bearing in mind the passage of time, acceptable • Recusal procedure, including the review before the constitutional jurisdictions following the judge’s own decision on the challenge against her, not deficient and in compliance with Convention standards • Impugned relationship could not prompt objectively held misgivings as to the objective impartiality of the judge • In specific case-circumstances, courts of constitutional competence which examined impartiality complaint made up for failings in recusal proceedings Art 8 • Family life • Interlocutory decisions rejecting applicant’s request that opposing party’s contact rights be reduced or supervised accompanied by relevant and sufficient reasons • Impugned decisions pursued the interests of all concerned on the basis of information available at the time • No indication of unfair decision-making process   Prepared by the Registry. Does not bind the Court.   STRASBOURG 24 June 2025   FINAL   03/11/2025   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of A and B v. Malta, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Lado Chanturia , President ,   Faris Vehabović,   Tim Eicke,   Lorraine Schembri Orland,   Ana Maria Guerra Martins,   Anne Louise Bormann,   Sebastian Răduleţu , judges , and Simeon Petrovski, Deputy Section Registrar, Having regard to: the application (no.   4986/24) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Maltese nationals, Mr A and B (“the applicants”), on 17 February 2024; the decision to give notice to the Maltese Government (“the Government”) of the complaint under Articles 6 (concerning the impartiality of the Family Court, and the procedure for the recusal of judges) and 8 of the Convention and to declare inadmissible the remainder of the application; the decision not to have the applicants’ names disclosed; the parties’ observations; Having deliberated in private on 1 April and 27 May 2025, Delivers the following judgment, which was adopted on the latter date: INTRODUCTION 1.     The application concerns complaints under Articles 6 and 8 of the Convention in relation to the impartiality of a judge in childcare proceedings and the procedure relating to the withdrawal of a judge. THE FACTS 2.     The applicants were born in 1980 and 2012 respectively and live in Swieqi. They were represented by Dr R. Scott and Dr T. Azzopardi, lawyers practising in San Gwann and Valletta respectively. The first applicant A is the father of the second applicant B of whom at the time of lodging the application he had care and custody. 3.     The Government were represented by their Agents, Dr C. Soler, State Advocate and Dr A. Falzon, Advocate at the Office of the State Advocate. 4.     The facts of the case may be summarised as follows. BACKGROUND TO THE CASE 5.     The first applicant and C, parents of the second applicant separated in 2017. 6.     While the separation proceedings were in the mediation stage, in August 2018, the first applicant filed a request before the Civil Court, Family Section (hereinafter “the Family Court”) (in this domestic case composed of Judge E) asking the court, inter alia , to order that the second applicant reside with the first applicant and have no contact with D, C’s partner. This was due to the fact that D, with whom she resided, was accused of committing serious crimes related to drug hauls. As a result of this cohabitation, D was also being given access to the child and the first applicant had serious concerns regarding this matter. 7.     On 8 November 2018, following the receipt of a sealed Child Advocate’s report, Judge E granted the first applicant care and custody of the second applicant and ordered that C should enjoy visitation rights with the child on three specified weekdays for three and a half hours and on Sundays. D was ordered not to be present for such visits, but the judge considered that the visits need not be supervised by the relevant child agency. 8.     C breached these orders by taking the second applicant to D’s parents’ house, where D’s brother, who was known to keep firearms, also lived, on several occasions and keeping him overnight on Christmas eve. As a result, Judge E ordered that the second applicant should not be taken anywhere near the presence of D’s family. It also ordered that criminal action be brought against C for contempt of court. THE PROCEEDINGS COMPLAINED OF 9 .     Once the mediation proceedings were finalised, on 19 January 2019, C proceeded to file a lawsuit against the first applicant, before the Family Court, which was assigned to Judge F. 10.     By means of an application filed in February 2019, the first applicant asked Judge F to order that all visitation rights enjoyed by C be reduced or supervised on account of the fact that the second applicant was refusing to visit his mother, crying hysterically on every occasion. Further applications were lodged by both parties thereafter, the content of which was not discussed in the proceedings before the Court. 11.     On 28 October 2019 Judge F, having viewed the evidence and noted that the child was refusing visits with his mother, considered that the first applicant’s concerns were justified in view of the serious accusations pending against D. She noted that it was for that reason and in view of the child’s best interests that Judge E had ordered visits not to be held in the presence of D. Judge F considered that if the first applicant would pick up the child after visits, the latter’s reluctance to go on the visit might diminish. She found that insufficient grounds existed for the visits to be supervised, however, she ordered that C pick up the child from school on three specified week days for three and a half hours at which point the first applicant would collect the child at the end of the visit; that in respect of the visit to be held on Sundays, the first applicant was to take the child to C’s residence and pick him up at the end of the visit; that, on the days when no physical visit was held C was to have 30 minutes of communication with the child via video call; that visits were never to be exercised in the presence of D; and she appointed a child psychologist to investigate and report to the court on the issues between the parties. 12.     On 29 and 30 October 2019 respectively, the first applicant lodged a request to appeal from the above-mentioned decree and for the suspension of the latter pending a decision on leave to appeal. The latter request was reiterated on 1 and 21 November 2019. 13.     Meanwhile, on 31 October 2019, having considered the decision concerning the access arrangements as lacking protection towards the second applicant and showing bias against him while favouring the mother, the first applicant, via his lawyer, asked Judge F to abstain from the proceedings due to a conflict of interest, on which he did not elaborate. His lawyer requested the court to hear his motives and evidence in camera . However, the first applicant withdrew the request on 15 November 2019 after Judge F informed him (in what the applicant considered “manifestly controlled anger”) that his other requests (the request to appeal and urgent matters relating to visits) would be left pending if a hearing were to be held to examine the recusal request. 14 .     On 10 December 2019 Judge F refused the request to appeal the decree issued on 28 October 2019, considering that, given the evidence produced, this would not be in the best interests of the child. Parts of the decision (which was not submitted to the Court in full, but was partly reproduced in other documents) reads as follows: “The court has heard the recordings of the child filed by the defendant [A.], from which it seems to appear that not only was the defendant too busy recording the child crying hysterically to effectively try to comfort him during a substantial part of these recordings which lasted a total of approximately twenty minutes ... ... but also, that when the defendant did in fact try to comfort the child, he agreed with him that plaintiff [C] is ‘the worst mother’, suggested to the child that ‘it’s time you tell this to your mother’(with reference to the child’s expressing a wish not to see his mother again) and telling the child that he (A) tries to persuade the court to stop access but that the court does not understand the needs of children. These recordings confirmed the court’s opinion that what is in the best interest of the child right now is for a child psychologist to investigate the matter and report to this court what effect the behaviour of both parents is having on the child as soon as possible. An appeal procedure would stultify this investigation and is therefore clearly not in the best interest of the child.” 15 .     The first applicant found out thereafter from his lawyer that C’s lawyer (G) was Judge F’s lawyer in her personal separation proceedings. This information had been relayed to the first applicant’s lawyer by Judge F herself, in confidentiality, some time before, in the context of other proceedings where she had abstained from hearing the case on the ground that G was her, then current, lawyer. 16.     On the applicant’s instruction, a second request for recusal was thus immediately filed on 23 December 2019 where, this time, the first applicant argued that there existed a conflict of interest due to the fact that G was Judge F’s lawyer, so much so that Judge   F had abstained from hearing another case on the same ground. 17 .     Oral submissions in this respect were heard on 11 February 2020 and a decree was issued on 17 June 2020 by the same Judge F, in line with Article   738 (1) of the Code of Organisation and Civil Procedure (“the COCP”) (see paragraph 24 below). Judge F rejected the challenge against her having considered that it had not been submitted in limine litis (at the start of the proceedings); that a prior request for her recusal had been withdrawn, thus, the application had been pronounced as ceded; moreover, counsel to the first applicant had already appeared before the court in these proceedings and it could therefore not be said that he was unaware of the situation. She considered that following that unconditional withdrawal no further requests to that effect could legitimately be raised. Furthermore, the decree of 28   October 2019, which triggered the request, was a decree which upheld a previous decree on access arrangements given by another judge, save in respect of the modalities of the pickup of the child. It thus could not be evidence of any bias according to either the objective or subjective test expounded by the European Court of Human Rights. 18.     No appeal lay against such a decision (see Article 738 (1) of the COCP at paragraph 24 below) and proceedings continued before Judge F. However, the parties have not informed the Court about any subsequent decisions which may have altered the contact arrangements put in place. For the first time in their observations of September 2024, the applicants alleged that no child psychologist ever contacted them, and no report was drawn up. CONSTITUTIONAL REDRESS PROCEEDINGS 19 .     On 6 July 2020, pending the civil proceedings, the applicants instituted proceedings before the constitutional jurisdictions complaining about the lack of protection afforded to the second applicant, and the failure of Judge F to inform the parties of her situation with the opposing party’s lawyer and/or abstain from the case of her own motion which they considered amounted to a breach of Articles 6, 8 and 13 of the Convention. They further complained that Article 738 (1) of the COCP which provided that a judge decides on his own recusal was in breach of Article 6 of the Convention. 20 .     Several interim requests for the proceedings before the Family Court to be suspended, or heard by another judge, were refused by the First Hall Civil Court in its constitutional competence (“the FHCC”). 21 .     During the constitutional redress proceedings, on 20 October 2021, Judge F confirmed on oath in writing that G had been her lawyer in the proceedings concerning her consensual separation and that their professional relationship came to an end on 18 June 2018 upon the publication of her separation agreement. This testimony was the result of a specific request by the applicants, which was granted by the court limitedly to whether “G is currently [was at the time of the constitutional redress proceedings] Judge F’s lawyer” and if not, when that professional relationship came to an end. The applicants’ lawyer also testified about how he had learnt that G was her lawyer by Judge F herself, in confidence in the context of other proceedings. 22 .     On 4 April 2023 the FHCC rejected all the claims. It considered that the ground relied on by the applicants to challenge the judge was not one of the abstention grounds provided for in the law. Even though other grounds could justify a recusal these had to be serious and concrete which was not the case at hand. It could not be ignored that, from the evidence tendered in these proceedings, it transpired that the judge’s professional relationship with her lawyer had come to an end six (sic.) months before the impugned proceedings. There had therefore been no issue of objective partiality, and the applicants had not claimed nor proved any subjective partiality. As to Article   8, the FHCC considered that it would not have been in the child’s best interests to cut ties with his mother, and the mere fact that a decision was not in favour of the applicant could not amount to a violation of Article 8 by the Family Court who was better placed to assess the situation. As to the complaint concerning Article 738 of the COCP, it could not be said that the judge had been deciding in her own cause, as she was not a party to the proceedings. Citing domestic jurisprudence, the FHCC considered that a judge deciding on his own recusal request had to act impartially, in line with his oath and function, otherwise he could be liable to consequences. 23 .     On appeal, by a judgment of 25 October 2023, the Constitutional Court confirmed the first-instance judgment. It recalled that, under Article 8 of the Convention, the State had a positive obligation to safeguard family ties with both parents and the Family Court was better suited to examine the access arrangements. As to Article 6, no evidence had been submitted showing that once the professional relationship between the judge and the opposing party’s lawyer had ended, there had remained any reasons (such as gratitude) to put in doubt the judge’s impartiality. Moreover, the applicants’ lawyer was aware of this situation earlier, yet he had not told his client. Furthermore, in a small country it would be impractical for a judge to withdraw in such cases. As to the complaint concerning Article 738 of the COCP, it considered that its examination was an academic exercise which was not necessary in the present case. RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW 24 .     Articles 733-739 of the Code of Organisation and Civil Procedure (“the COCP”) 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 – (a) if he is related by consanguinity or affinity in a direct line to any of the parties; (b) if he is related by consanguinity in the degree of brother, uncle or nephew, grand-uncle or grand-nephew or cousin, to any of the parties, or if he is related by affinity in the degree of brother, uncle, or nephew, to any of the parties; (c) if he is the tutor, curator, or presumptive heir of any of the parties; if he is or has been the agent of any of the parties to the suit; if he is the administrator of any establishment or partnership involved in the suit, or if any of the parties is his presumptive heir; (d) (i) if he had given advice, pleaded or written on the cause or on any other matter connected therewith or dependant thereon; (ii) if he had previously taken cognizance 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 definitely dispose of the merits in issue or to any judgment of non-suit of the plaintiff; (iii) if he has made any disbursement in respect of the cause; (iv) if he has given evidence or if any of the parties proposes to call him as a witness; (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; (g) if the advocate or legal procurator pleading before a judge is the brother or sister of the said judge; (h) if the judge or his spouse has a case pending against any of the parties to the suit or happens to be his creditor or debtor in such manner as may reasonably give rise to suspicion of a direct or indirect interest that may influence the outcome of the case. (2) A judge may be challenged or abstain from sitting in a cause when he has previously taken cognizance of and expressed himself on the same merits of that cause when sitting as a judge in the court of voluntary jurisdiction.” Article 735 “(1) Any judge being aware of the existence in his respect of any of the grounds of challenge mentioned in the last preceding article, shall make a declaration to that effect previously to the trial of the cause, either verbally in open court, in which case a record of such declaration shall be entered in the proceedings of the cause, or in writing, in which case it shall be lodged in the registry before the day appointed for the trial of the cause, notice thereof being given to the parties. (2) Nevertheless, it shall be lawful for the judge to hear and determine the cause if the parties shall expressly give their consent thereto, unless, in the particular circumstances of the case, he shall deem it proper to abstain from sitting notwithstanding such consent.” Article 737 “Any objection to a judge shall be raised by the parties in open court, and the reasons thereof shall be alleged and, where necessary, proved.” Article 738 “(1) Where the court consists only of one judge and such judge is objected to, he himself shall decide on the alleged ground of challenge, and no appeal shall lie against his decision, and he shall either abstain from sitting and rule that a surrogation of another judge is required, or else proceed with the trial, as the case may be. (2) Where the court consists of more than one judge, all the judges, including the one objected to, shall decide on the ground of challenge, and where there is any reason to doubt as to whether an alleged ground of abstention is a good ground or otherwise, all the judges, including the judge alleging such ground, shall decide on such ground.” Article 739 “The challenge of a judge shall not be admissible where the party raising the objection, if the plaintiff, has already submitted his claim at the trial, or, if the defendant, has already set up his pleas in defence, unless the ground of challenge shall have arisen subsequently, or unless the party raising the objection, or his advocate, shall declare upon oath that he was not aware of such ground, or that it did not occur to him at the time.” 25.     The relevant articles of the Civil Code read as follows: Article 47 “During the pendency of the action the court shall give such directions concerning the custody of the children as it may deem appropriate, and in so doing the paramount consideration shall be the welfare of the children: Provided that in cases where there is evidence of domestic violence, the Court may limit or deny access to the children if such access would put the children or the other parent at risk.” Article 149 “Notwithstanding any other provision of this Code, the court may, upon good cause being shown, give such directions as regards the person or the property of a minor as it may deem appropriate in the best interests of the child.” DOMESTIC CASE-LAW 26 .     It is established in the domestic jurisprudence (see for example Sandro Chetcuti v Attorney General and Others , Constitutional Court judgment of 12   July 2005, and the case-law cited therein, and more recently Anna Vassallo gia Spiteri v the State Advocate judgment of the First Hall Civil Court in it constitutional competence of 29 May 2024) that notwithstanding the fact that Article   739 of the COCP gives the impression that the list contained in Article   734 of the COCP is exhaustive, there are instances where judges may be challenged for reasons other than those referred to in the law given that a situation may arise which contrasts with the fundamental and constitutional rights of the individual with the consequence that the latter shall prevail over the other provisions of ordinary law. Thus, even if there may be no recourse on the basis of Article   734 of the COCP, the parameters of the law shall be deemed to be broadened by the provisions of the Constitution and the European Convention guaranteeing due process. They must therefore be interpreted in their spirit and in the light of the principles enunciated in the case-law of the Court and of the European Commission.   COMPARATIVE LAW MATERIAL 27.     In the case of Alexandru Marian Iancu v. Romania (no. 60858/15, 4   February 2020) the Court conducted a comparative study of the legislation of twenty-eight then member States of the Council of Europe (Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Lithuania, North Macedonia, Norway, Poland, Portugal, the Russian Federation, Serbia, Slovenia, Spain, Sweden, Turkey, Ukraine and the United Kingdom). The comparative study suggested that in the civil legal systems common grounds requiring the withdrawal of judges were: (a) if the judge is a party; (b) if the judge is related to one of the parties to the proceedings; (c) if the judge has previously been involved in the case in a different capacity (for example as a prosecutor, police officer, legal representative, witness, and so on); (see Alexandru Marian Iancu , cited above, § 40, for the grounds relevant to the criminal context). 28.     In seventeen member States, the relevant criminal or civil codes of procedure laid down a general clause which required a judge to withdraw in all other circumstances which may cast doubt on his or her impartiality. 29 .     In addition, in the civil context, the comparative study revealed that in Azerbaijan one of the specific grounds for recusal is when the judge has any relationship, kinship or other kind of dependence with one of the participants in the case or with a legal representative or counsel of one of the participants; In the Czech Republic one of the specific grounds for recusal is when there are reasons to doubt the judge’s impartiality taking into account his or her relationship to the matter in dispute, to the participants in the case and or their representatives; In Italy a judge must also withdraw if he or she has habitual contact with one of the parties or with one of their defence lawyers, or has a financial interest in the proceedings or if any of the parties or the legal representatives is a debtor or creditor in respect of him or her, or his or her spouse or children. 30.     In the United Kingdom, The Supreme Court Judicial Conduct Guidance 2009 (as well as that of 2023) provides examples of when a judge must not sit in a case, and also situations in which, depending on the circumstances, it may be appropriate for a judge to withdraw. It also articulates situations in which it is likely inappropriate for the judge to withdraw. It states that likely insufficient reasons for a judge not to sit on a case (dependent upon the circumstances) include friendship or past professional association with counsel or solicitors acting for a party. THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 31.     The applicants complained that the Family Court in the civil proceedings (composed of Judge F) had not been impartial due to the links of the judge with the opposing party’s lawyer, moreover, the judge had herself decided on the challenge lodged against her, contrary to that provided in Article 6 § 1 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.” Admissibility The parties’ submissions (a)    The Government 32 .     The Government submitted that Article 6 § 1 did not apply to the procedure by which the Family Court decided the partiality challenge lodged against it, relying on Schreiber and Boetsch v. France ((dec.), no.   58751/00, 11 December 2003). (b)    The applicants 33.     The applicants submitted that in the present case the recusal challenge did not amount to separate proceedings but was an integral part of the main proceedings. The provision was thus applicable. The Court’s assessment (a)    Compatibility ratione materiae 34.     The Court notes that the Government did not challenge the applicability of Article 6 in relation to the interim decisions/ interlocutory decrees on access rights delivered by the Family Court, which are also complained of and constitute for ease of reference the decisions given in the main proceedings, but only in relation to the decision concerning the recusal of the judge. Bearing in mind that the applicability of a provision relates to the Court’s competence ratione materiae to assess a complaint, and therefore is a matter which goes to the Court’s jurisdiction and which it is not prevented from examining of its own motion (see, for example, Pasquinelli and Others v. San Marino , no. 24622/22, § 68, 29 August 2024) the Court finds it opportune to recall the relevant general principles and their application to the present case. 35.     The Court has previously held that it no longer finds it justified to automatically characterise injunction, interim or interlocutory proceedings as not determinative of civil rights or obligations. It was not convinced that a defect in such proceedings would necessarily be remedied at a later stage, namely, in proceedings on the merits governed by Article 6 since any prejudice suffered in the meantime may by then have become irreversible and with little realistic opportunity to redress the damage caused (see Micallef v.   Malta [GC], no. 17056/06, § 80, ECHR 2009). It, however, considered that not all interim or interlocutory measures determined such rights and obligations, and the applicability of Article 6 would depend on whether certain conditions were fulfilled (ibid., § 83, and Mercieca and Others v.   Malta , no. 21974/07, § 34, 14 June 2011). 36 .     In the present case it is not disputed that the subject of the main proceedings including that of the interlocutory decisions (namely, care and custody and access rights) was “civil” and that the measures ordered by the Family Court, which were immediately enforceable, can be considered to have effectively determined the civil right or obligation at stake, during the length of time they were in force, and thus, Article 6 is applicable to the main proceedings complained of (see, for general principles, Micallef , cited above, §§ 84-86, and compare, for an example in practice, A.K. v.   Liechtenstein , no.   38191/12, §§ 49-54, 9 July 2015). 37.     The Court accepts that in exceptional cases – where, for example, the effectiveness of the measure sought depends upon a rapid decision ‑ making process – it may not be possible immediately to comply with all of the requirements of Article 6 (see Micallef , cited above, § 86). However, the independence and impartiality of the tribunal or the judge concerned being an indispensable and inalienable safeguard in such proceedings, there is no doubt that such safeguard ought to apply to the proceedings in the present case (see, for example, Micallef , § 86, and A.K. v.   Liechtenstein , §§   48 and   55, both cited above). 38.     In so far as the Government challenged the applicability of Article 6 in relation to the decision of the judge on a request for her recusal (see paragraph 32 above), the Court notes that in Schreiber and Boetsch , relied on by the Government, the Court noted that the sole purpose of the proceedings complained of in that case was to challenge the judge responsible for investigating the case to which the applicants had been joined as civil parties. Accordingly, it considered that the challenge procedure was an ancillary action, independent of the main proceedings which gave rise to it. Since the right to obtain a judicial decision on the composition of a court is not a civil right, but solely a procedural right, even more so where the application had not related to the composition of a trial court, but to the replacement of an investigating judge as was in that case, the Court found that the possible applicability of Article 6 § 1 to the principal proceedings would not bring the challenged procedure within the ambit of Article 6 through association. However, in the present case, the Court notes that the procedure to challenge the judge was not a separate one, but rather part of the main proceedings, the civil nature of which has already been established in the preceding paragraph. There is therefore no reason to consider that Article 6 does not apply on that basis. The Government’s objection is therefore dismissed. (b)    Compatibility ratione personae 39.     The Court further notes that the Government did not raise an objection as regards the second applicant’s victim status. It notes, however, that the matter concerns the compatibility ratione personae of the complaint which also goes to the Court’s jurisdiction and which it is not prevented from examining of its own motion (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 70, 5 July 2016, and Erduran and Em Export Dış Tic A.Ş. v.   Turkey , nos. 25707/05 and 28614/06, § 58, 20   November 2018). 40.     The Court reiterates that the term “victim” used in Article 34 of the Convention denotes the person directly affected by the act or omission which is in issue and that a person cannot complain of a violation of his or her rights in proceedings to which he or she was not a party (see, among other authorities, F. Santos, Lda. and Fachadas v. Portugal (dec.), no.   49020/99, ECHR 2000-X; Nosov v. Russia (dec.), no. 30877/02, 20   October 2005; and Hambálek v. the Czech Republic (dec.), no. 38132/03, 9 May 2006). 41.     In the present case the second applicant was not a party to the civil proceedings complained of (see paragraph 9 above), thus the Court cannot regard the second applicant as a “victim” of the alleged violation of Article   6 of the Convention (see, mutatis mutandis , Biziuk and Biziuk v. Poland (dec.) no.   12413/03, § 1, 12 December 2006; Bezzina Wettinger and Others v.   Malta , no. 15091/06, § 68, 8 April 2008; and Erduran and Em Export Dış Tic A.Ş. , cited above, § 61). For the purposes of Article 6, this is so even if the outcome of the proceedings might have in practical terms certain consequences for him (see, mutatis mutandis , Q and R v. Slovenia , no.   19938/20, § 63, 8 February 2022). 42.     Having regard to the foregoing, the Court concludes that this complaint, in so far as it was lodged by the second applicant, is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 §   4. 43.     The Court will therefore confine itself to examining the complaint brought by the first applicant. 44.     The Court notes that the complaint in respect of the first applicant is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible. Merits The parties’ submissions (a)    The applicant 45 .     The first applicant submitted that Judge F had not been impartial, given her professional ties with the other party’s lawyer. He considered that the mere fact that her separation proceedings came to an end by a deed published in June 2018 was no guarantee that there was no aftermath to the personal separation, and that the professional relationship had ceased. In any event, even assuming that it had ceased, the brief passage of time was not enough to consider that there were no strong professional ties between them. As much as a patient would consult his personal medical doctor when needed and not on a continuous basis, the same applied to a legal consultant. Thus, the termination of one provided service could not imply the end of a client ‑ lawyer relationship. 46 .     The first applicant also considered that Judge F’s behaviour had shown bias against him. He submitted that the wording of the decrees indicated that Judge F blamed him for the issues encountered by the second applicant and wrongly attributed words not uttered by him. She ignored his requests for protection of the child from the drug underworld and chastised him for trying to do so. 47.     He argued that domestic law was deficient in so far as it did not provide for an automatic obligation for the judge to abstain if impartiality could be an issue. He also rebuked Judge F’s behaviour in so far as she had not abstained, as she had done in another case for the same reason, nor declared the situation asking for the parties’ consent, in line with Article   735 of the COCP (see paragraph 24 above). By omitting to raise the matter, she obstructed his right to challenge her hearing the case (see Article   737 of the COCP at paragraph 24 above). Once he became aware of the situation and she was asked to withdraw she refused to do so, deciding the matter herself. 48.     In this connection, he submitted that Article 738 (1) of the COCP (see paragraph 24 above), which provided for a judge to decide on a challenge against him or herself, and against which no appeal lay, amounted to a case of nemo iudex in causa propria (no one should be a judge in their own case) which was incompatible with Article 6 of the Convention. There being no automatic obligation for the judge to withdraw, this important issue was left to their own discretion. It was further submitted that since his lawyer had initially not informed him about the situation (because it had been brought to the lawyer’s attention in confidence) it was impossible for him to raise the matter in limine litis , a matter ignored by the judge when rejecting his request. The situation had not been remedied by the constitutional jurisdictions which rejected his requests for interim measures and eventually his complaint in toto . 49.     In reply to the Government’s argument (see paragraph 51 below), he considered that a population size of 600,000 people did not amount to a carte blanche to breach fair trial principles. The first applicant also submitted a list of around a hundred lawyers who could practice family law in Malta. Moreover, Judge F could have been replaced by any of the two other judges in the Family Court, as well as by the Chief Justice had it been necessary. (b)    The Government 50.     The Government submitted that the judge had been impartial according to both the subjective and objective tests. In the latter respect they noted that her working relationship with the other party’s lawyer had come to an end more than six months prior to the initiation of the proceedings complained of. Thus, the situation was different to the other case relied on by the first applicant where Judge F had abstained from hearing a case at a time when she had still been a client of the said lawyer. Moreover, bearing in mind the size of Malta, that only three judges sat on the Family Court and the handful of lawyers representing clients before the Family Court, one could not expect judges to withdraw because of such remote connections. Indeed, the Court had already found that even a professional relationship as office colleagues (of two judges one having to review the conduct of the other) would not suffice to raise doubts about a judge’s impartiality. As to the subjective test, the first applicant had not brought forward evidence of any bias against him, and the mere fact that a decision against him was delivered could be no indication of such bias. 51 .     In so far as he complained about the recusal procedure, the Government submitted that in deciding a challenge against themselves judges had to be independent and impartial. Failure to do so would result in an abuse of power with ensuing consequences. Moreover, should a party consider the decision to have been unfair, a two-tier constitutional remedy existed which could review the matter. The Government further considered that since the judge was not a party to the proceedings she could not be considered as deciding on her own case, the principle of nemo iudex in causa propria thus had no place in such a situation. Indeed, in the present case the judge had nothing to gain by deciding the case, and the Government had no doubt that the judge had acted impartially when deciding on this challenge in the present case. 52.     Lastly, the Government noted that the Court had already found in respect of Liechtenstein and Cyprus that “excessively strict standards in respect of motions for bias could unduly hamper the administration of justice” which should also apply to Malta given its size. The Court’s assessment (a)    General principles 53.     The Court reiterates that impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. According to the Court’s settled 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, for example, Kyprianou v. Cyprus [GC], no.   73797/01, §   118, ECHR 2005-XIII; Micallef , cited above, §   93; Morice v. France [GC], no. 29369/10, §   73, ECHR 2015; and Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, §   287, 4 December 2018). 54 .     As to the subjective test, the principle that a tribunal must be presumed to be free of personal prejudice or partiality is long-established in the case ‑ law of the Court (see Kyprianou , §   119; Micallef , §   94; and Morice , §   74, all cited above). The personal impartiality of a judge must be presumed until there is proof to the contrary (see Hauschildt v. Denmark , 24   May 1989, §   47, Series   A no. 154). 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 , 26 October 1984, §   25, Series A no. 86, and Morice , cited above, §   74). 55.     In the vast majority of cases raising impartiality issues the Court has focused on the objective test (see Micallef , cited above, §   95). However, there is no watertight division between subjective and objective impartiality 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 , cited above, §   119). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v.   the United Kingdom , 10   June 1996, §   32, Reports of Judgments and Decisions 1996-III, and Morice , cited above, §   75). 56.     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 or her impartiality. This implies 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 Micallef , cited above, §   96). 57.     The objective test mostly concerns hierarchical or other links between the judge and other protagonists in the proceedings. It must therefore 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 Morice , cited above, §   77). 58.     In this connection 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 , cited above, §   26). What is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see Castillo Algar v. Spain , 28 October 1998, §   45, Reports of Judgments and Decisions 1998-VIII; Micallef , cited above, §   98; and Morice , cited above, §   78). 59 .     Moreover, in order that the courts may inspire in the public the confidence which is indispensable, account must also be taken of questions of internal organisation (see Piersack v. Belgium , 1 October 1982, §   30 (d), Series A no. 53). 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 (see Zahirović v. Croatia , no. 58590/11, §   35, 25 April 2013). In addition to ensuring the absence of act