CEDH · CASELAW;CLIN;ENG — 21 juin 2011

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Malta - 46575/09 Judgment 21.6.2011 [Section III] Article 6 Civil proceedings Article 6-1 Impartial tribunal Independent tribunal Alleged lack of impartiality where Constitutional Court President’s judicial assistant had acted for one of the parties in prior civil proceedings in same case: no violation   Facts – The first applicant and his wife brought civil proceedings against a maritime authority for permission to use a mooring berth. After failing in that action they instituted constitutional-redress proceedings claiming various violations of his Convention rights. While at first instance their claims were upheld, the Constitutional Court reversed the judgment. In their application to the European Court, the applicants (the first applicant and his children, as heirs to the first applicant’s wife) complained that the Constitutional Court had not been impartial because the judicial assistant assigned to the Office of the Chief Justice (the Chief Justice presided over the Constitutional Court) had been on the team of lawyers who had represented the maritime authority in the earlier civil proceedings. Law – Article 6 § 1 (a)     Admissibility – The Government had objected that the applicants had failed to exhaust domestic remedies as they had not lodged a fresh set of constitutional proceedings complaining of the fairness of the first set. While there was no reason for the Court to doubt that constitutional proceedings were accessible and capable of providing redress for human-rights violations, what was of concern was the length of another set of constitutional proceedings at a stage where the initial complaint had been conclusively decided after several years of litigation before various degrees of jurisdiction including seven years before courts of constitutional jurisdiction. Lodging a fresh constitutional complaint would have involved a cumbersome procedure and the length of the proceedings would have detracted from their effectiveness. Moreover, while the constitutional jurisdictions (the Civil Court in its constitutional jurisdiction and the Constitutional Court) would have been differently constituted, the former would most likely have had to rule on the conduct of the Chief Justice and other hierarchically superior judges and this could have raised issues in respect of the impartiality and independence requirements. Consequently, even though the domestic law provided a remedy against a final judgment of the Constitutional Court, in view of the specific situation of the Constitutional Court in the domestic legal order, it was not one requiring exhaustion in the circumstances of the instant case. Conclusion : preliminary objection dismissed (unanimously). (b)     Merits – The principles of impartiality established in the Court’s case-law applied equally to jurors, professional and lay judges and other officials exercising judicial functions such as assessors and court officials such as “referendaries”. The exercise of different functions within the judicial process by the same person or hierarchical or other links with another actor in the proceedings gave raise to objectively justified misgivings as to the impartiality of the tribunal. It therefore had to be ascertained in each individual case whether the connection was of such nature and degree as to indicate a lack of impartiality on the part of the tribunal concerned. The time-frame was relevant when assessing the significance of a judge’s previous relationship to an opposing party. In the present case the Court had to examine the impartiality of the Constitutional Court in the applicants’ case in the light of the specificities of the judicial assistant’s role within the domestic legal and judicial system. That role included assisting in the judicial process and, at the request of the court, participating in the proceedings, taking witness testimony and affidavits, receiving documentary evidence and holding sittings as directed. Judicial assistants were also entitled to draw up opinions in respect of the cases put to the court. Such tasks could be of important significance to the judicial process. In the present case the judicial assistant had actively represented the applicants’ opponent at an earlier stage of the proceedings, but her involvement had been temporary and she had withdrawn from the case almost six years before the Constitutional Court’s decision. As to her participation in the constitutional proceedings, it was noted that apart from pointing to her general role as judicial assistant to the Chief Justice the applicants had not provided any evidence to suggest she had been entrusted with the case. Indeed, under domestic law a judicial assistant could be involved in any named case only at the court’s request and the Chief Justice had declared she had had no involvement. The applicants had not contested the veracity of that statement and had acknowledged that he had been unaware of the identity of the Chief Justice’s judicial assistant, so confirming she had not taken any witness or documentary evidence, held sittings or issued procedural deadlines. Accordingly, since it had not been established that the judicial assistant had participated in the impugned proceedings, there were no ascertainable facts capable of raising legitimate doubts as to the impartiality of the Constitutional Court in the present case. Conclusion : no violation (unanimously).   © 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