CEDH · CASELAW;COMMUNICATEDCASES;ENG — 21 novembre 2023

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 11 December 2023   SECOND SECTION Application no. 11314/23 AJD TUNA LTD. against Malta lodged on 8 March 2023 communicated on 21 November 2023 SUBJECT MATTER OF THE CASE The application concerns an alleged restrictive application of the domestic law by the Court of Appeal which dismissed the applicant company’s appeal. The applicant company had lodged proceedings against the Director for Agriculture concerning the use of the quota on bluefin tuna fishing. By a first instance decision of 30 July 2015 the ordinary court found against the applicant company. The latter lodged its appeal on 19 August 2015. Nearly five years later, on 19 June 2020, the applicant company was served with the notice to pay the security for costs as well as the notice of the first appeal hearing, which was to be held on 30 June 2020. According to the law at the time the deposit for the security for costs was to be paid “not later than two days before the date set for the hearing”. The applicant company’s director only took actual cognisance of the content of the notification late on Friday 26 June 2020 at which point he contacted his lawyer to effect payment. However, given that the court registry is closed on the weekend and Monday 29 June 2020 was a public holiday, the applicant company was unable to pay the deposit prior to the day of the appeal hearing. On the day of the hearing the applicant company, present in court through its director, informed the Court of Appeal that it could pay the deposit on the spot. Nevertheless, applying Article 249 of the Code of Organisation and Civil Procedure, the Court of Appeal dismissed the appeal as being deserted. A further request for reconsideration was also dismissed. The applicant company instituted constitutional redress proceedings complaining, inter alia , under Article 6 of the Convention about the circumstances leading to the dismissal of its appeal, including the five-year wait for its appointment, which eventually deprived it of access to court. It brought to the attention of the courts various examples of when exceptions to the procedural rules concerning the deadline to pay security for costs had been made, including on the same day of the hearing. By a final judgment of 10 November 2022, the Constitutional Court confirmed a violation of Article 6 § 1 in relation to the length of proceedings (awarding EUR 3,000 in non-pecuniary damage), but no violation of Article   6 § 1 regarding access to court. It considered that although it was unfortunate that the notice to pay the security for costs had been sent out so close to the hearing date, especially given that five years had passed since the appeal had been lodged, it was nonetheless the applicant company’s fault that its director had not taken proper cognisance of the content of the notification any earlier; thus, unlike other cases, there had been no justification to apply an exception. The applicant company complains under Article 6 that it was denied access to court as a result of a restrictive application of the law amounting to excessive formalism. QUESTIONS TO THE PARTIES 1.     Did the applicant company have access to a court for the determination of its civil rights and obligations, in accordance with Article   6 §   1 of the Convention? In particular, bearing in mind all the relevant circumstances of the case, has there been a restrictive application of the law by the Court of Appeal impairing the applicant’s right of access to court (see Mercieca and   Others v. Malta , no. 21974/07, §§ 45 et seq., 14   June 2011 and Hasan   Tunç and Others v. Turkey , no. 19074/05, §§ 29 et seq., 31 January 2017; and Zubac v. Croatia [GC], no. 40160/12, §§ 96-99, 5 April 2018)?   2.     Had the lawyer of the applicant company been separately served with the notice to pay the security for costs and/or the notice of the first appeal hearing? If so, when?