FOURTH SECTION

DECISION

Application no . 46661/12 Edmond Espedito MUGLIETT and Mary Theresa MUGLIETT against Malta

The European Court of Human Rights (Fourth Section), sitting on 28 May 2013 as a Chamber composed of:

Ineta Ziemele, President,

David Thór Björgvinsson ,

Päivi Hirvelä , George Nicolaou, Ledi Bianku , Zdravka Kalaydjieva , Krzysztof Wojtyczek , judges,

and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 19 July 2012,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Edmond Espedito Mugliett and Ms Mary Theresa Mugliett , are Maltese nationals, who were both born in 1962 and live in Birkirkara , Malta. They were represented before the Court by D r P. Pullicino , a lawyer practising in Valletta.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Background of the case

3. The applicants were holders of a bank account together with a third party. On 24 April 2001, the day after the death of the third party, the applicants withdrew approximately EUR 95,000 from the account, without informing the bank of the death of the third party.

2. The main proceedings

4. The heirs of the deceased third party instituted proceedings claiming that the withdrawal made by the applicants was unauthorised. They requested the court to order the applicants to return the money to the account.

5. The applicants argued that the third party was solely a figurehead ( prestanome ) and not the owner of the money in the account. They noted that they would prove this if the heirs were to claim an interest in the said account.

6. By a judgment of 2 June 2006, the court ordered the applicants to restore the status quo ante by depositing the relevant sums in the bank account plus interest. It considered that it would then be for the parties or another court to decide on who owned the money as it was not within the scope of the requests of the heirs or counter requests of the defendant (applicants in this case) in the action.

7. The applicants appealed arguing that it was inconceivable to enforce the said judgment before the owner of the said account had been determined.

8. By a judgment of 27 June 2008 the Court of Appeal rejected the appeal as frivolous and vexatious and ordered the applicants to pay double the costs. It clarified that it had not found that the heirs had a share of the money, but given that the bank account was a joint account there was a prima facie case that the heirs had an interest in it, which could not be defeated by the applicants ’ unilateral and abusive action. It reiterated that the court had not been asked to determine who owned (and in what amount) the said money and thus the court could not decide on that matter. It had only ruled on the restoration of the account to its original state and the applicants had not been ordered to pay the heirs.

3. The proceedings related to the execution of the above judgment

9. The applicants did not deposit the relevant sum. In consequence, on 16 February 2009 the heirs of the deceased third party requested the issuance of a warrant in procinctu (a new measure in domestic law) requesting the court to order the sale of the applicants ’ home to secure payment of the sum due. Despite the applicants ’ objection, on 3 April 2009 the court acceded to the request. The court ordered the court registrar to proceed with the sale by auctioning the applicants ’ home and to deposit the relevant sum and interest following the sale. Any remaining balance was to be given to the applicants.

10. The applicants requested the revocation of the said warrant, which they claimed was not applicable in their case. They argued that the judgment which the warrant was meant to enforce was not enforceable since the heirs had failed to request to be recognised as creditors. Moreover, they considered that that judgment had breached their human rights and the issuance of the warrant would do the same. On 14 May 2009 the court refused to examine the case.

11. The applicants appealed requesting the Court of Appeal to annul the decision not to take cognisance of the case. Given that the composition of the Court of Appeal was the same as for the judgment of 27 June 2008 (see above) the applicants requested the judges to withdraw from hearing the case. The said judges rejected the request.

12. By a judgment of 26 June 2009 the Court of Appeal declared null and void the decision of 14 May 2009. Because of the legal time-limits imposed, it examined the merits of the case and confirmed the lawfulness of the issuance of the warrant, thus rejecting the applicants ’ request. It considered that, by means of the new warrant, the legislator had intended to offer to a person who had won a court case and was therefore “the creditor of an obligation”, a means of ensuring enforcement by requesting a judge to order that the relevant steps be taken. There was no limit to what the court could order in so far as there was a request by a creditor and that the court was satisfied that there was no other way of executing the judgment. In the present case the court was satisfied that the issuance of other warrants could not lead to the execution of the judgment of 2 June 2006 and that the warrant in procintu was the only way to enforce it.

4. Other proceedings

13. In the meantime, pending the above proceedings, on 16 April 2009 the applicants (and a company owned entirely by them) instituted proceedings to determine the ownership of the said bank account. They claimed that the third party was solely a figurehead ( prestanome ) and not the owner of the money in the account. They further submitted that the amount withdrawn on 24 April 2001 was part of the larger proceeds of a sale of property owned by the said company. That sale was registered and published by a notary on 14 March 2001, the very same day that the joint account was credited with the sum eventually withdrawn. These proceedings were still pending on the date of the application to the Court.

5. Constitutional redress proceedings

14. The applicants instituted constitutional redress proceedings. They complained that before a decision was taken as to who was the owner of the bank account in question, or that they were in any way criminally or civilly liable to pay damages, a warrant in procinctu (an executive warrant) had been issued for the sale by auction of their family home to ensure the observance of the judgment of 2 June 2006 (given in the ambit of precautionary proceedings). They considered that the situation was a violation of their rights under Articles 6, 8 and Article 1 of Protocol No. 1. They further complained that the same judges had been on the bench of the Court of Appeal earlier in their case, contrary to the impartiality requirement, and that they had been denied the right to a double degree of jurisdiction to contest the issuance of the warrant.

15. The Civil Court (First Hall) in its constitutional competence noted that under domestic law the heirs had had the right to request and obtain such a warrant. Indeed, the applicants had refused to observe the judgment of 2 June 2006 and this remained the only way to ensure its execution. It followed that the measure was lawful and legitimate and could not breach their fair trial rights. As to their complaints under the Protocol and Article 8, it considered that there had not been an interference with the applicants ’ rights and that in any event the applicants could avoid the sale of their home by paying the sums due. Even assuming that there had been an interference with the applicants ’ Article 8 rights to respect for their home, it had been justified since the impugned measure was in accordance with the law and pursued a legitimate aim. Moreover, the issuance of the measure could not be considered disproportionate to the aim pursued, namely the observance of a court judgment following fair proceedings (irrespective of the issue of ownership of the bank account). As to the impartiality of the judges it considered that there had been no breach of the applicants ’ rights as the decisions did not relate to the same subject matter.

16. The applicants appealed.

17. By a judgment of 5 March 2012 the Constitutional Court, also noting that the appeal had been framed in a confused manner and that the applicants had not explained how the facts of their case were linked to the provisions invoked by them, rejected the appeal on the merits and confirmed the first-instance judgment.

18. As to the judgments ordering the applicants to return the money to the account, it considered that this had not been a preventive measure but a final judgment finding in favour of the heirs ’ request to restore the status quo ante , irrespective of who owned the money. The final judgment constituted an executive title according to law. In that respect the applicants had had access to a court and a fair trial. The applicants had failed to make any relevant counter-claims to extend the scope of the action. Indeed, this had not been requested by either of the parties, and it was still open to the applicants to have such a determination made by a court of law. The same judgments had not interfered with the applicants ’ rights under Article 8, and even assuming they had, the interference had been a proportionate measure to restore matters to a state of legality that had been disturbed by the applicants ’ unilateral and illegal actions. As to Article 1 of Protocol No. 1 it considered that there had been no deprivation of property as a result of the first set of judgments.

19. As to the second set of judgments, namely those issuing the warrant, the same considerations applied. Moreover, the Constitutional Court noted that the warrant was an execution measure to enforce a final court judgment following proceedings to which the applicants had had full access. The interference with the applicants ’ Article 8 rights was in accordance with the law and necessary for the prevention of disorder or crime, and the protection of the rights and freedoms of others, it was aimed at returning the sums illegally withdrawn and was, moreover, justified as there was no other alternative given that the applicants had refused to deposit those sums. The same judgments had not arbitrarily deprived the applicants of their property, but had solely enabled the execution of a judgment which the applicants had chosen to ignore. It had not been argued that the applicants no longer had that sum or that they were unable to return it by means of a loan. It followed that the action had been totally proportionate.

20. As to the composition of the Court of Appeal, it considered that the first time the Court of Appeal sat in the case it had to decide whether to confirm the judgment holding that the applicants should pay back the money they had withdrawn from the joint bank account following the third party ’ s death. On the second occasion, they were called upon to revoke the court ’ s decision not to examine the applicants ’ request to revoke the warrant. Thus, at no time was it necessary for the Court of Appeal to contradict its previous finding. The matters considered were different, and even though in the second case the Court of Appeal had examined the merits of the applicants ’ claim (after accepting to revoke the contested decision), it only examined whether the warrant had to be revoked, which was not an issue covered by the previous appeal decision. Moreover, the fact that they had been ordered to pay double costs was due to the fact that the appeal had been found frivolous, and that in itself was not a reason for doubting the court ’ s impartiality. As to the applicants ’ complaint that by entering directly into the merits of the case the Court of Appeal had denied them a double degree of access to court, it noted that there was no right to appeal in civil matters, and given that their claims had been heard and decided upon, their right to access to court had been satisfied.

B. Relevant domestic law

21. Article 388 G (E, at the time of the relevant facts) of the Code of Organisation and Civil Procedure reads as follows:

“ (1) Subject to the other provisions contained in Title VII of this Code, the court may on demand of the party, issue such orders to the Registrar as it may deem necessary for the orders contained in the judgement to be executed:

Provided that this warrant shall not be issued except after an application has been made to this effect by the creditor and after the court is satisfied that the creditor does not have any other means of execution.

(2) There shall be clearly indicated in the application the reason for the necessity of such orders and a decree shall be given thereon after that the debtor has been served notice thereof, to which he may file a reply within four days.”

COMPLAINTS

22. The applicants complained under Article 6 of the Convention that they had been denied a fair hearing in the first set of proceedings, as a result of the incongruous assessment of their case by the domestic courts, the lack of impartiality of the Court of Appeal in the second proceedings, and the fact that they were denied the benefit of two instances as a result of the Court of Appeal ’ s decision. Invoking Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention they complained of a breach of their rights as a result of the domestic courts ’ assessments, which were contrary to Article 6.

THE LAW

A. Article 6

23. The applicants made various complaints under Article 6 of the Convention. The relevant provision reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

1. Impartiality of the Court of Appeal

24. The applicants complained that the Court of Appeal which decided their appeal on 26 June 2009 had been the same Court of Appeal that had considered their earlier appeal frivolous and vexatious (on 2 June 2006). In the first appeal the judges sitting in the Court of Appeal had decided that the judgment debt against them was valid at law. In the second appeal proceedings the applicants had argued that the warrant in procinctu could not be used to enforce money judgments. Thus, there was a risk that these same judges would again find that the judgment was not a debt-based judgment.

25. The Court reiterates that according to its constant case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, inter alia , Fey v. Austria , 24 February 1993, Series A no. 255, §§ 27, 28 and 30, and Wettstein v. Switzerland , no. 33958/96, § 42, ECHR 2000-XII).

26. As to the objective test, when applied to a body sitting as a bench, it means determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality. In this respect even appearances may be of importance. What is at stake is the confidence that the courts in a democratic society must inspire in the public (see Castillo Algar v. Spain , 28 October 1998, Reports 1998-VIII, § 45). It follows that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Central Mediterranean Development Corporation Limited v. Malta (no. 2) , no. 18544/08 , § 30 , 22 November 2011) . In this respect, it is necessary to look at the circumstances of the case (ibid, see also San Leonard Band Club v. Malta , no. 77562/01, § 62, ECHR 2004 ‑ IX).

27. As regards the subjective test, it has not been shown that any of the judges sitting in the Court of Appeal held or manifested any personal convictions such as to cast doubt on their or the bench ’ s subjective impartiality.

28. As to the objective test, the assessment of whether the participation of the same judge in different stages of a civil case complies with the requirement of impartiality laid down in Article 6 § 1 is 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 to the case (see Warsicka v. Poland , no. 2065/03, § 40, 16 January 2007, as well as the cases cited therein particularly at § 37 ). The real question is whether the previous participation of the judge could have raised legitimate fears in the applicant that the judge would not have approached the case with the requisite impartiality (see Indra v. Slovakia , no. 46845/99, §§ 51-54, 1 February 2005).

29. In the instant case, the concerns regarding the Court of Appeal ’ s alleged lack of impartiality stemmed from the fact that its bench on 26 June 2009 was composed of the same three judges who had previously decided an earlier appeal of the applicants relating to the main judgment. It must therefore be decided whether there was a link between the first and second decision of the Court of Appeal so as to raise a justified doubt as to the lack of impartiality of the Court of Appeal.

30. The Court notes that the Court of Appeal ’ s first decision concerned the confirmation of the first-instance court ’ s order to the applicants to lodge the money in the bank account. The second decision concerned (besides the putting aside of the decision not to examine the case) the confirmation of the first-instance court ’ s decision to issue a warrant ordering the sale of the applicants ’ house in order to enforce the decision to lodge the money in the bank account. Notwithstanding the common background of the second set of proceedings with the first, it cannot be said that the second set concerned the same factual or legal issues as the first. It is clear that the second were not in this sense connected at all with the first. An impartiality problem will arise in this context where there is a link, and one sufficiently close at that, between the issues examined in the respective proceedings (see Warsicka , cited above § 40). Such a link existed in Indra ( cited above) where, although there was a difference in a technical sense between the two proceedings, they related in essence to the same set of facts, the crucial question being, in both, whether the applicant ’ s dismissal had been justified. In the present case, the second decision related solely to the execution of the earlier judgment and the Court of Appeal ’ s function had been to determine whether the requirements for issuing the warrant in procinctu had been fulfilled. In that context there was no room for reviewing the validity of the original decision which had become final and enforceable. Thus, the Court of Appeal in its second decision had not been called upon to assess and determine whether it had correctly applied the relevant domestic law to the applicants ’ case or whether or not it had committed an error of interpretation or application of the relevant law in its previous decision (see, a contrario , San Leonard Band Club , cited above, § 63) . Having regard to the circumstances of the case taken as a whole, it cannot be said that there existed any appearance of objective impartiality.

31. It follows that this complaint must be rejected as manifestly ill ‑ founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

2. Other complaints under Article 6

32. The applicants complained that they had been denied a fair hearing in so far as the domestic courts had ordered them to pay money into a bank-account without addressing the question as to who was the owner of the said money. They had been considered civilly liable and ordered to pay a hypothetical debt plus interest, without being able to put forward their defence which focused on the ownership of the said money.

33. The applicants ’ complaint clearly relates to the assessment made by the domestic courts regarding the case at issue. The Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by the national courts (see García Ruiz v. Spain [GC] , no. 30544/96, § 28, ECHR 1999-I). In particular, the Court cannot itself assess the facts which have led a national court to adopt one decision rather than another; otherwise, it would be acting as a court of fourth instance and would disregard the limits imposed on its action (see, mutatis mutandis , Kemmache v. France (no. 3) , 24 November 1994, § 44, Series A no. 296-C). The Court ’ s sole task in connection with Article 6 of the Convention is to examine applications alleging that the domestic courts have failed to observe specific procedural safeguards laid down in that Article or that the conduct of the proceedings as a whole did not guarantee the applicant a fair hearing (see, among other authorities, Centro Europa 7 S.r.l . and Di Stefano v. Italy [GC], no. 38433/09 , § 197, ECHR 2012 ).

34. In the instant case, the Court finds nothing to suggest that the proceedings at issue were not conducted in accordance with the requirements of a fair hearing. It further reiterates that it is for the national courts to assess the relevance of proposed evidence (see, mutatis mutandis , Centro Europa 7 S.R.L. and di Stefano , cited above , § 19 8 ) and the Court sees no reason to consider arbitrary the domestic courts ’ decision not to enter into the question of the ownership of the money, which they clearly considered to be beyond the scope of those proceedings.

35. It follows that this part of the complaint must be rejected as manifestly ill ‑ founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

36. The applicants further complained that the Court of Appeal ’ s decision of 26 June 2009 to examine the merits of the case instead of remitting it to the first-instance jurisdiction had denied them an appeal at second instance.

38. It follows that this part of the complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 35 §§ 3 and 4 of the Convention.

B. Article 8 and Article 1 of Protocol No. 1 to the Convention alone and in conjunction with Article 6

39. The Court notes that the complaints under the above Articles have been drafted in a confused manner, providing little indication as to the way in which the Articles invoked were breached. The applicants appear to have complained about the cumulative effects of the judgment of 2 June 2006 and its subsequent execution. They complained about the outcome of those proceedings in so far as they had been held to be responsible for their predicament. Invoking Article 1 of Protocol No.1 they considered that there had been no public purpose behind the deprivation of their property by the domestic courts and that the measure had been disproportionate in the circumstances of the case. Under Article 8 the applicants complained about the decision leading to the likely loss of their family home where they had brought up their children, one of whom was born with Downs Syndrome. The relevant provisions read as follows:

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

40. The Court notes that in so far as the applicants invoke Article 6 in conjunction with the above provisions, the Court has already held above that the complaints under Article 6 are manifestly ill-founded.

41. As to their complaint under Article 8, the Court notes that there is nothing to indicate that the domestic court judgment of 2 June 2006 had not been adopted in accordance with the law as interpreted by the domestic courts. As to the execution measur e following that judgment, the C ourt notes that it was also in accordance with the law, namely the then Article 388E of the Code of Organisation and Civil Procedure.

42. The domestic court judgments in both sets of proceedings constituted measures which pursued the legitimate aim of, at least, the protection of the rights of others and in that light the Court considers that they were proportionate in their effect. In respect of the first final judgment the Court considers that it had been necessary in a democratic society - in order to safeguard the interests of third parties - for the domestic courts to order the applicants to restore the money which they had unilaterally withdrawn until ownership of that money had been determined. As to the judgment relating to the execution of the original judgment, the Court observes that the domestic courts, in particular the Court of Appeal, held that there had been no other way of enforcing the judgment save for the warrant in procinctu . The Constitutional Court also confirmed that there was no other alternative method of enforcement given that the applicants had refused to restore the money. Although the matter was raised by the applicants, the domestic courts did not consider whether any other property was available for the same purpose, probably because such a warrant could only be issued on the basis of the request made by the party, in this case the heirs. The Court reiterates that it is in the first place for the national authorities, and notably the courts, to interpret domestic law and that the Court will not substitute its own interpretation for theirs in the absence of arbitrariness (see Bezzina Wettinger and Others v. Malta , no. 15091/06, § 79, 8 April 2008). In this light it appears irrelevant for this Court to examine whether the applicants owned any other property which the heirs could have requested to be sold, or whether payment could be secured in some other way. Indeed, the Court notes that if alternative means of payment existed, it sufficed for the applicants to perform the obligation by those means in order to avoid the sale of their house. In the three years following the judgment of June 2006 the applicants could have taken the necessary steps to ensure the fulfilment of their obligation. Bearing in mind the applicants ’ refusal and failure to fulfil their obligation, it cannot be considered disproportionate for the domestic courts to have taken all relevant measures envisaged by the legislator to ensure that the rights of third parties were not prejudiced by the applicants ’ actions or omissions. Even if the only avenue available entailed the likely loss of the applicants ’ house, the Court finds that the domestic courts ’ decisions struck a fair balance between the rights of the applicants and those of third parties, bearing in mind the entirety of the circumstances of the case.

43. It follows that this complaint must be rejected as manifestly ill ‑ founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

44. In so far as the same complaint appears to have been brought under Protocol No. 1, the Court considers that, in relation to the first judgment, even assuming that the applicants can be considered to have a possession (the monies in the bank account), the measure simply constituted a control of use of that property for a temporary period, namely pending the determination of the ownership of that money. That measure had been in accordance with the law and had been taken in the general interest, in particular that of interested third parties. Moreover, it was proportionate in the light of the aim pursued. In relation to the second judgment, the Court notes that the order to sell the applicants ’ house by auction was an interference with their possession, namely their house. However, that measure was also in accordance with the law as mentioned above, pursued a legitimate aim and was proportionate for the same reasons considered under Article 8.

45. It follows that this complaint must also be rejected as manifestly ill ‑ founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Françoise Elens-Passos Ineta Ziemele Registrar President