Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20802/92

by Robert BOND

against Malta

The European Commission of Human Rights (First Chamber) sitting

in private on 12 October 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 April 1992 by

Robert Bond against Malta and registered on 12 October 1992 under file

No. 20802/92;

Having regard to:

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the observations submitted by the respondent Government on

20 August 1993 and the observations in reply submitted by the

applicant on 26 and 30 October 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Maltese citizen, born in 1934 and resident at

Birkirkara, Malta.

a. The particular circumstances of the case

The facts of the case, as submitted by the parties, may be

summarised as follows.

On 12 December 1977, the applicant made a contract with A.A. and

J.S. for the purchase of a car for the amount of Lm 1.050 (Maltese

pounds). The parties agreed that the transfer of the car should be made

when the applicant paid Lm 400.

Although the applicant paid Lm 800 to A.A. and J.S. and received

delivery of the car, he found on application to transfer the car

licence into his name that the car was registered in the name of a

certain M.

On 19 October 1979 the applicant issued a writ of summons against

A.A. and J.S. in the Commercial Court (Qorti Tal-Kummerc) seeking a

declaration that the defendants had acted in an illegal and abusive

manner and the recovery of his Lm 800, interest and costs.

On 31 October 1979, the Court ordered the presentation of a note

by the applicant to clarify inconsistencies in the lodged documents.

On 27 November 1979, the applicant lodged further documents.

The case was listed before the Court on 10 January 1980,

28 February 1980 and 29 April 1980 but on each occasion J.S. has not

been notified and the matter was not proceeded with.

On 19 June 1980 and 20 November 1980, the Court adjourned the

case. When on 16 February 1981 the case was called, none of the parties

appeared.

Following the appearance of the lawyer for J.S. who considered

that he should be treated as having been served with the writ of

summons, the case was listed for hearing on 22 May 1981 but on that

date none of the parties appeared. Following the applicant's request,

the case was relisted and came up for hearing of his evidence on

8 February 1983. The defendants were not present. The case was subject

to adjournments by the Court on 14 April 1983 and 16 June 1983.

On 10 November 1983, the lawyer acting at that time for both

defendants submitted that J.S. had not as yet been notified of the

proceedings. The case was adjourned so that he could be notified.

On 15 February 1984, the applicant's lawyer obtained an

adjournment in order that a settlement might be tried.

On 16 April 1984, the case was adjourned due to the indisposition

of the judge.

When the case was called on 29 October 1984, only the lawyer for

the defendants appeared and the case was adjourned until 22 February

1985. On that date no-one appeared and the case was adjourned until

15 April 1985 for the hearing of the applicant's evidence. On

15 April 1985, the applicant informed the court that he had no further

evidence to give and the case was adjourned until 24 May 1985 for the

evidence of the defendants, in default of which judgment would be

given.

On 24 May 1985, only the applicant and his lawyer appeared. The

applicant's lawyer requested time from the court to study the

significance of a judgment given in favour of one of the applicant's

witnesses.

On 27 November 1985, the Court heard some of the witnesses in the

case.

On 15 March 1985, the case was adjourned as the judge was sitting

in the Criminal Court.

On 4 June 1986, only the applicant appearing in court, the case

was adjourned.

On 3 November 1986, no-one appeared and the case was adjourned.

On 13 February 1987, the Court heard evidence from a witness for

the applicant but the applicant's lawyer was unable to produce a

warrant indicating that he has summonsed other witnesses and the case

was adjourned for the continuation of his evidence.

On 16 October 1987, the applicant obtained an adjournment in

order to summon more witnesses.

On 22 January 1988, the Court was informed that J.S. had left

Malta indefinitely. The applicant's lawyer failing to appear, the case

was adjourned.

On 22 April 1988, the applicant's lawyer declared that he had no

further evidence to give. The case was adjourned to 15 June 1988 for

taking the evidence of the defendants in default of which the Court

would deliver judgment.

On 15 June 1988, none of the parties appeared and the Court

adjourned with the intention of proceeding to issue judgment.

On 23 November 1988, the Court pronounced judgment to the effect

that the agreement between the parties was not valid at law, that the

defendants should repay the Lm 800 on condition that the applicant

should deposit the car with the court.

A.A. appealed to the Court of Appeal (Qorti ta` l-Appell) against

the decision. The applicant applied to the Court requesting that the

initial summons of 19 October 1979 be declared null since it was signed

by his lawyer rather than himself personally.

The case was adjourned by the Court on 20 November 1990,

7 February 1990 (pending an issue of security of costs), 7 May 1990 (as

the defendants failed to appear) 22 October 1990, 5 December 1990,

25 February 1991 and 22 April 1991 (as none of the parties appeared).

On 14 October 1991, none of the parties appeared and the Court

adjourned with a view to treating the appeal as "deserted" if the

parties failed to appear again.

On 20 November 1991, the case was adjourned due to the

indisposition of one of the judges.

On 9 December 1991, an adjournment was granted on request of the

lawyer for A.A..

On 13 January 1992, the Court heard submissions from the parties.

The applicant's lawyer requested an adjournment in order to make

further submissions. Following an initial failure by the parties to

appear on 2 March 1992, the parties made their final submissions and

the case was reserved for judgment.

On 1 June 1992, the Court declared that since one of the

defendants, J.S., had not as yet been notified of the appeal

proceedings it suspended delivery of judgment.

On 5 October 1992, none of the parties appeared and the Court

noted that no step had been taken to notify J.S. It adjourned the case

pending filing of the proper notification in the court records.

On 7 December 1992, A.A informed the Court that J.S had been

notified and requested relisting of the matter.

On 20 January 1993, the Court adjourned giving judgment when the

applicant's lawyer failed to appear.

On 18 March 1993, the proceedings were adjourned by the Court

which required further time for consideration.

In its judgment delivered on 26 April 1993, the Court of Appeal

noted that the applicant continued to retain possession of the car and

that he had not taken the two courses open to him either of seeking the

annulment of the agreement, returning the car to the defendants and

claiming repayment of the money paid or by taking action against the

defendants requiring them to execute the agreement fully. It commented

that the applicant was attempting to retain the car and to recuperate

his money. It held that the lower court's annulment of the sale could

not stand since none of the parties had requested it. The Court denied

the applicant's request to annul the initial writ of summons.

b. Relevant domestic law and practice

Article 39 para. 2 of the Maltese Constitution provides:

"Any Court or other adjudicating authority prescribed by law for

the determination of the existence or the extent of civil rights

or obligations shall be independent and impartial, and where

proceedings for such a determination are instituted by any person

before such a court or other adjudicating authority, the case

shall be given a fair hearing within a reasonable time."

Proceedings may be instituted before the Civil Court (First Hall)

alleging breach of constitutional rights and seeking relief, including

damages, in respect of such breach. Complaints may in such

constitutional proceedings include or be combined with allegations of

breach of the rights guaranteed in the European Convention of Human

Rights which was incorporated in the laws of Malta with effect from

19 August 1987.

Proceedings seeking such relief in respect of delay in court

proceedings may be brought against the Prime Minister as representative

of the Government responsible for the administration of justice (see

eg. Attard and others v. the Prime Minister, decision of the Civil

Court (First Hall) 29 October 1992 and Manduca v. the Prime Minister,

decision in the Civil Court (First Hall) dated 16 September 1993).

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

that his case was not determined within a reasonable time. He also

complains under Article 3 of the Convention of his allegedly degrading

treatment by the Maltese courts, under Article 5 para. 1

concerning the insecurity inspired in him by the conduct of the judges,

under Article 10 paras 1 and 2 concerning the alleged refusal of the

courts to allow him to express his views, and finally, under

Article 13 of the Convention, concerning the judges' immunity under

Maltese law against suit in their official capacity.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 April 1992 and registered on

12 October 1992.

On 30 June 1993, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the applicant's complaints concerning

the length of proceedings.

The Government's observations were submitted on 20 August 1993

and the applicant's observations in reply were submitted on 26 and

30 October 1993.

THE LAW

1. The applicant complains of the length of proceedings in the

action brought by him in respect of his purchase of a car. He invokes

Article 6 para. 1 (Art. 6-1) of the Convention which provides as

relevant:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law..."

The Government submit, inter alia, that the applicant has failed

to exhaust domestic remedies as required by Article 26 (Art. 26) of the

Convention since he has failed either to file an application for

redress under section 39 of the Maltese Constitution alleging

unreasonable delay or to invoke in such constitutional proceedings the

provisions of the Convention which were incorporated as part of the

laws of Malta in 1987. Such an application concerning the alleged delay

in the courts can be filed against the Prime Minister as representative

for the Government which is ultimately responsible for the running of

the courts.

The applicant submits that there is no available remedy to him

since he alleges that he is unable to sue the judges in their personal

capacity for the damages, pain and suffering caused to him by the

delay.

The Commission recalls that Article 26 (Art. 26) requires an

applicant to exhaust those remedies available to him which may furnish

effective and sufficient redress in respect of the alleged breach (see

eg. Application No. 11208/84, Dec. 4.3.86, D.R. 46 p. 182).

The Commission notes that the Maltese Constitution contains a

provision requiring the determination of claims concerning civil rights

and obligations within a reasonable time and that since 1987 the

provisions of the Convention, including Article 6 para. 1 (Art. 6-1)

above, have been incorporated in Maltese law. Constitutional

proceedings may therefore be instituted claiming relief, including

damages, where it is alleged that proceedings have exceeded a

reasonable time. It appears from Maltese case-law that such proceedings

may be instituted against the Prime Minister as representative of the

Government which bears responsibility for the administration of the

courts and in those proceedings obtain relief, including damages. There

is nothing in the material before the Commission to indicate that these

proceedings would not have provided effective or sufficient relief in

respect of the applicant's claims of delay by courts in the

determination of his claims.

It follows that the applicant has not complied with the

requirements of Article 26 (Art. 26) of the Convention and that this

part of the application must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

2. The applicant also complains under Article 3 (Art. 3) of the

Convention of allegedly degrading treatment by the Maltese courts,

under Article 5 para. 1 (Art. 5-1) alleging insecurity inspired in him

by the conduct of the judges and under Article 10 paras. 1 and 2

(Art. 10-1, 10-2) alleging the refusal of the courts to allow him to

express his views.

The Commission has examined the applicant's complaints as they

have been submitted by him. It finds however that they fail to disclose

any violation of the provisions of the Convention invoked by him.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant has further invoked Article 13 (Art. 13) of the

Convention which provides:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Commission recalls however that Article 13 (Art. 13) does not

require a remedy under domestic law in respect of any alleged violation

of the Convention. It only applies if the individual can be said to

have an "arguable claim" of a violation of the Convention (Eur. Court

H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131,

p. 23, para. 52).

The Commission finds that the applicant cannot be said, in light

of its findings above to have an "arguable claim" of a violation of his

Convention rights under 2 above.

Insofar as the applicant invokes Article 13 (Art. 13) in respect

of his complaints about the length of proceedings, the Commission

recalls that it rejected that complaint for non-exhaustion in that he

had failed to avail himself of an effective domestic remedy (see 1

above).

It follows that this part of the application must also be

dismissed as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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BOND v. MALTA

BOND v. MALTA

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