CEDH · CASELAW;CLIN;ENG — 15 janvier 2008

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 104 January 2008 Micallef v. Malta - 17056/06 Judgment 15.1.2008 [Section IV] Article 34 Victim Application introduced on behalf of the applicant’s sister who died while her constitutional claim concerning the alleged breach of her right to a fair trial was pending: victim status upheld   Article 6 Civil proceedings Article 6-1 Impartial tribunal Statutory impossibility to challenge a judge on the basis of his/her family ties with a party’s advocate: violation   [This case was referred to the Grand Chamber on 7 July 2008] Facts : The applicant’s sister was an unsuccessful party to civil litigation. In 1993 she instituted constitutional proceedings, alleging that the president of the court of appeal lacked objective impartiality by reason of his family ties with the other party’s lawyers. In 2002, after his sister’s death, the applicant intervened in the proceedings. In 2005 the constitutional claim was dismissed. In 2006 the applicant lodged an application with the Court. Law : The applicant’s victim status – The direct victim had died while the constitutional proceedings were pending. In the Maltese legal system, the institution of constitutional proceedings was the only way to seek redress in such cases and was a required step in order to exhaust remedies before bringing proceedings before the Court. The Court was therefore persuaded that the applicant’s sister had wished to complain about the alleged breach of her right to a fair trial. Upon her death, the constitutional jurisdictions had not rejected the applicant’s request to intervene in the proceedings before them in his capacity as the plaintiff’s brother. The alleged defect in the relevant law which had made it impossible to challenge a judge on the basis of his or her relationship with a party’s advocate was a matter of sufficient general interest. The applicant therefore had standing to introduce the present application. Merits : Maltese law as it stood at the material time was deficient on two levels. Firstly, there was no automatic obligation on a judge to withdraw in cases where impartiality could be an issue, a matter which remains unchanged in the law in force at present. Secondly, the law did not recognise as a ground for challenge a sibling relationship between judge and advocate, let alone that arising from relationships of a lesser degree such as those of uncles or aunts in respect of nephews or nieces. Thus, the law in itself did not give adequate guarantees of subjective and objective impartiality.The applicant’s sister had faced a panel of three judges, one of whom was the brother and at a later stage the uncle of the opposing party’s advocate. The Court could not overlook the fact that Malta was a small country and that entire families practising law were a common phenomenon. Furthermore, the relationship at issue did not involve any professional or financial dependence. There was insufficient evidence that the judge in question had displayed personal bias.However, the close family ties between the opposing party’s advocate and the judge had sufficed to justify objectively the applicant’s sister’s fears that the presiding judge had lacked impartiality and nothing had been done to dispel her concerns. Conclusion : violation (four votes to three, the minority finding that Article 6 was inapplicable). Article 41 – The finding of a violation constituted in itself sufficient just satisfaction for any non‑pecuniary damage sustained by the applicant.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes