CEDH · CASELAW;CLIN;ENG — 22 novembre 2011

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Malta (no. 2) - 18544/08 Judgment 22.11.2011 [Section IV] Article 6 Civil proceedings Article 6-1 Civil rights and obligations Tribunal established by law Alleged lack of impartiality where same bench heard successive applications concerning a request for a stay of execution: article 6 applicable; no violation   Facts – In February 2005 the Court of Appeal, sitting in a three-judge formation, upheld a decision at first instance requiring the applicant company to execute certain works. On 3   November 2005 the same three judges of the Court of Appeal rejected a request by the applicant company for a stay of execution. On 14   December 2005, still in the same composition, it refused a request by the applicant company to reconsider its decision concerning a stay. In their application to the European Court, the applicant company complained of a lack of impartiality in that the bench which heard its request for reconsideration was identical to that which had refused a stay. Law – Article 6 § 1 (a)     Admissibility – The request for a stay of execution of the Court of Appeal’s judgment constituted a corollary of the execution phase of that judgment which was an integral part of the proceedings determining civil rights and obligations and therefore engaged the protection of Article   6. That conclusion was reinforced by the Grand Chamber’s judgment in Micallef v. Malta * which confirmed the applicability of Article   6 to preliminary or interim proceedings, such as cases of injunctive relief, provided certain conditions were fulfilled, namely (a)   that the right at stake in both the main and the injunction proceedings were “civil” within the autonomous meaning of Article   6 and (b)   following scrutiny of the nature, object and purpose of the interim measure, and its effects on the right in question, it could be considered effectively to determine the civil right or obligation at stake, notwithstanding the length of time it was in force. Article   6 was therefore applicable to the stay of execution proceedings. Conclusion : admissible (unanimously). (b)     Merits – It had not been shown or argued that the Court of Appeal held or manifested any personal convictions such as to cast doubt on its subjective impartiality. As to objective impartiality, the Court had previously held that it was not prima facie incompatible with the requirements of Article   6 for a judge involved in a decision on the merits subsequently to be involved in the examination of the admissibility of an appeal against that decision**. The assessment of whether a judge’s participation in different stages of a civil case complied with the impartiality requirement was to be made on a case-to-case basis, regard being had to the circumstances of the individual case and, importantly, to the characteristics of the relevant rules of civil procedure applied. It was appropriate to examine whether there was a close link between the issues successively examined by the Court of Appeal on the two occasions at issue***. The question determined by the Court of Appeal on 14   December 2005 was not the same as that it had determined on 3   November 2005 as, in the former decision it had examined the substance of the applicant company’s request for a stay of execution, whereas in the latter it had had to determine whether the applicant company’s request for reconsideration was compatible with domestic law and procedure. Only if it had found that it was could it have gone on to examine the merits of the request, a phase which never materialised. Thus, the scope of its examination in December could be considered tantamount to an assessment of admissibility and was not the same or intrinsically linked to the merits of the original request for a stay. In particular, when deciding the applicant company’s request for reconsideration, the Court of Appeal was not called upon to assess and determine whether, for example, sitting as a bench, it had correctly applied the relevant domestic law to the applicant’s case or whether or not it had committed an error of legal interpretation or application in its previous decision. There was no link between the substantive issues determined in the two decisions such as to cast doubt on the impartiality of that court. The applicant company’s fears as to the impartiality of the Court of Appeal could not, therefore, be said to have been objectively justified. Conclusion : no violation (unanimously). * Micallef v.   Malta [GC], no.   17056/06, 15   October 2009, Information Note no.   123 . ** Warsicka v.   Poland , no.   2065/03, 16   January 2007, Information Note no.   93 . *** Indra v.   Slovakia , no.   46845/99, 1   February 2005.   © 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