FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 970/04 by Victor SULTANA against Malta

The European Court of Human Rights (Fourth Section), sitting on 11 December 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr K. Traja , Mr S. Pavlovschi , Mr J. Šikuta , Mrs P. Hirvelä , judges , Mr G. Valenzia , ad hoc judge , and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 11 December 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The appli cant, Mr Victor Sultana, is a Maltese national who was born in Xaghra , Gozo , and lives in Malta . He was represented before the Court by Mr J. Brin cat , a lawyer practising in Malt a . The Maltese Government (“the Government”) were represented by their Agent, Mr S. Camilleri , Attorney General .

A. The circumstances of the case

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

1. The background of the case

T he applicant is a surgeon employed by the G overnment .

An o fficial a dvertisement for a post of c onsultant surgeon with an interest in vascular surgery in a public hospital was published in the Government Gazette of 19 January 1999 .

T he applicant applied for the post, considering that he satisfied all the conditions laid down in the advertisement . The Government qualified this statement to read that the applicant satisfied the conditions nece ssary to apply for the post of consultant s urgeon.

According to paragraph 6 (c) of the call for applications, applicants were required to have the following qualifications:

“be in possession of a recognised higher postgraduate qualification in surgery (FRCS or equivalent qualification recognised as such in the European Union or the USA ) and at least six years post registration experience in vascular surgery of which at least three years must be at Senior Registrar or Higher Surgical Trainee equivalent level.”

The applicant allege d that he was the only person eligible for the post but that other persons , not having the required qualifications , were interviewed . Eventually X, another surgeon, was appointed by the Prime Minister on the recommendations of the Public Service Commission (“PSC”). Under Maltese law, this body is immune from legal proceedings.

The Government contested the allegation that the other persons interviewed for the post did not possess the required qualifications. According to the Government, the applicant argued that the other candidates did not possess the experience required , since the period to be taken into consideration should have been calculated from the date when the candidates had officially been appointed to the post of Senior Registrar and not from a prior date when they had de facto started performing such duties.

The Government explained that there were three applicants for the said post. After having interviewed all the applicants, the Selection Board (appointed by the PSC), made up of four senior members of the public medical service and a senior official from the m anagem ent and p ersonnel office, found that all the candidates interviewed possessed both the academic qualificati ons and the experience required. Ho wever , they found the applicant to be unsuitable for the post whilst finding the other two candidates suitable. The PSC recommended the candidate with the highest mark as decide d by the Selection Board.

On 15 July 1999, two days after the said interview, the applicant complained about the decision and the composition of the Selection Board to the PSC Chairman.

On 3 January 2000 the PSC informed the applicant that on examining the selection process , the eligibility of the applicants as determined by the Selection Board had been correct and that none of his other allegations had been well-founded.

On 13 January 2000 the applicant reiterated his position to the PSC. On 3 March 2000 the PSC informed the applicant that given that the selection process had been completed and the appointment made, representations to the PSC had to be made in accordance with the provisions of the Esta c ode (“ code of ma nagement of the public service” ) which provided for the right to file a petition with the Prime Minister (“PM”) in respect of a selection process.

On 14 March 2000 the applicant petitioned the PM . This petition was suspended since in the meantime the applicant had lodged judicial proceedings and proceedings before the Permanent Commi ssion against Corruption, which had the power to investigate allegations of corruption.

On 29 May 2000 the applicant lodged a judicial protest against the PM and the Chairman of the PSC.

On 9 June 2000 the applicant requested the Civi l Court (First Hall) to issue an injunction against the above authorities to restrain them from proceeding with the appointment of the selected candidate. On 13 June 2000 the Civil Court refused this request.

2 . The proceedings before the Civil Court

On 28 June 2000 t he applicant filed a claim with the Civil Court (First Hall) against the PM. He alleged a violation of Article 110 of the Constitution of Malta by reason of the fact that in selecting the candidates for the post of consultant surgeon, the PM had failed to adhere to the notice announcing the call for applications. The applicant furthermore considered that, in setting up the board for the interviews, there had been a breach of the Estacode rules, which regulated the civil service and the manner in which applicants to it were recruited.

The applicant requested that the appointment of X be declared null and void and that his own application be considered the only one valid for the post .

The PM objected, stating that the applicant ’ s action was incompatible with Article 115 of the Constitution, since the action was intended to inquire into the interpretation of a call for applications made by the PSC, whereas the conduct of the PSC in such matters could not be questioned.

In a preliminary judgment of 14 February 2002 the Civil Court dismissed the PM ’ s objection and ordered that the case be continued. It observed that the PSC was not a defendant in the case and that it was too early to come to the conclusion that the applicant ’ s claims might amount to an investigation into the actions of the PSC. The applicant should know that if his action pursued such a line it would be dismissed. However, it was still open to the applicant to prove his complaint without questioning the workings of the Commission.

The applicant ’ s action had rightly been introduced against the PM who was not obliged to act according to the recommendation made to him by the PSC. Moreover, when the PM was taking a decision relating to the appointment of a civil servant, he was not merely giving formal effect to the wishes of the PSC. Although the Civil Court ’ s role was not to i nquire whether the PM had acted or not on the recommendation, its task was to determine whether his actions were in conform ity with the law.

3. The proceedings before the Court of Appeal

The G overnment challenged the Civil Court ’ s preliminary judgment , before both the Constitutional Court and the Court of Appeal. On 17 February 2003 the a ppeal to the Constitutional Court was withdrawn by agreement of both parties. It was agreed that the merits of th e appeal sh ould be examined by the Court of Appeal.

In a judg ment of 27 June 2003, the Court of Appeal found against the applicant. It accepted the Government ’ s plea of immunity and dismissed the applicant ’ s action .

T he Court of Appeal held that the PM ’ s actions “in many fields” could be examined by the domestic tribunals. However, according to Article 86(3) of the Constitution and the Constitutional Court ’ s case-law, when the PM was required to perform any function in accordance with the recommendation of any person or authority, judicial examination was excluded , unless there wa s an allegation of a v iolation of fundamental h uman r ights.

Furthermore, it resulted from Article 86(1) and (2) of the Constitution that when the PM was required to exercise any function after consultation with any person or authority, he was not obliged to follow the advice given to him, although when the functions were exercised on the recommendation of any person or authority, he should act in accordance with that recommendation. Therefore, when the PSC ma de a recommendation on an appointment to a post within the public s ervice, the PM was bound to a ppoint the person indicated. What were referred to in the Constitution as recommendations were in fact binding decisions and the only possibility enjoyed by the PM was to use his power to refer the recommendation back, once, for reconsideration.

In the present case, the only allegation against the PM was that he had acted in accordance with the decision of the PSC. In the Court of Appeal ’ s opinion, the applicant was trying to circumvent Article 115 of the Constitution, which grant ed immunity to the PSC.

B. Relevant domestic law

Article 110 (1) of the Constitution of Malta states:

“Subject to the provisions of this Constitution, power to make appointments to public offices and to remove and to exercise disciplinary control over persons holding or acting in any such offices shall vest in the Prime Minister, acting on the recommendation of the Public Service Commission ...”

The functions of the PM in this reg ard are regulated according to Article 86 of the Constitution of Malta , which , in so far as relevant, reads as follows :

“ (1) Where by this Constitution the Prime Minister is required to exercise any function on the recommendation of any person or authority he shall exercise that function in accordance with such recommendation:

Provided that –

(a) before he acts in accordance therewith he may once refer that recommendation back for reconsideration by the person or authority concerned; and

( b ) if that person or authority, having reconsidered the original recommendation under the preceding paragraph, substitutes therefor a different recommendation, the provisions of this sub-article shall apply to that different recommendation as they apply to the original recommendation .

(2) Where by this Constitution the Prime Minister is required to perform any function after consultation with any person or authority, he shall not be obliged to perform that function in accordance with the advice of that person or authority.

(3) Where by this Constitution the Prime Minister is required to perform any function in accordance with the recommendation of, or after consultation with, any person or authority, the question whether he has in any case received, or acted in accordance with such recommendation or whether he has consulted with such person or authority shall not be i nquired into in any court. ”

The PSC is immune f r om proceedings regarding its functions purs uant to Article 115 of the Constitution . This provision reads as follows :

“The question whether -

( a ) the Public Service Commission has validly performed any function vested in it by or under this Constitution;

( b ) any member of the Public Service Commission or any public officer or other authority has validly performed any function delegated to such member, public officer or authority in pursuance of the provisions of subarticle (1) of A rticle 110 of this Constitution; or

( c ) any member of the Public Service Commission or any public officer or other authority has validly performed any other function in relation to the work of the Commission or in relation to any such function as is referred to in the pre ceding paragraph, shall not be i nquired into in any court. ”

In so far as relevant, Article 469A of the Code of Organisation and Civil Procedure (“COCP”) relating to Judicial Review of Administrative Actions, reads as follows:

“ (1) Save as is otherwise provided by law, the courts of justice of civil jurisdiction may inquire into the validity of any administrative act or declare such act null, invalid or without effect only in the following cases:

( a ) where the administrative act is in violation of the Constitution;

( b ) when the administrative act is ultra vires on any of the following grounds:

( i ) when such act emanates from a public authority that is not authorised to perform it; or

(ii) when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon; or

(iii) when the administrative act constitutes an abuse of the public authority ’ s power in that it is done for improper purposes or on the basis of irrelevant considerations; or

(iv) when the administrative act is otherwise contrary to law.”

COMPLAINT

The applicant , a civil servant, complained under Article 6 § 1 of the Convention that his right of access to a court had been violated since he could not challenge the authorities ’ decision not to appoint him to a post of consultant surgeon, in view of the PSC ’ s immunity from court proceedings.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicant complained that he ha d no access to a fair and impartial tribunal as provided in Article 6 § 1 of the Convention, which reads as follows:

“1. In the determination of his civil rights...., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

A. The parties ’ submissions

1. The Government

The Government submitted that the application was out of time and that the applicant had not exhausted domestic remedies. The case that he lodged with the Maltese courts was not based on Article 6 § 1 of the Convention, even though he would have been entitled to bring a Convention-based action. Referring to domestic case-law, the Government noted that the Convention was fully applicable in Malta and that the protection it provided was independent from that provided by the Constitution. Moreover, previous domestic case-law had also established that the actions of the PSC were reviewable with regard to their compatibility with respect for fundamental human rights and freedoms.

The Government submitted that the issue raised by the applicant did not involve a dispute over a civil right in terms of Article 6 § 1 since there was no substantive civil right under domestic law to claim appointment to or a promotion in the civil service or to challenge an appointment to the civil service, which in this case fell within the PSC ’ s discretion in making its recommendations to the Government. Neither was there any right to contest the validity of the qualifications of other candidates, a matter which pertained to the Selection Board appointed by the PSC. Therefore no such right existed and it could not be said that Article 115 of the Constitution removed the jurisdiction of the courts to take cognisance of such claims. Article 115 reflected the theory of the “non-legal nature of the civil service” which derived from British common law and in this respect the Government referred to the case of Roche v. the United Kingdom ([GC], no. 32555/96 , ECHR 2005 ‑ ...).

Neither did the conditions laid down in the call for applications vest the applicant with any right, because the PSC retained the function of evaluating compliance by candidates with such conditions, which was a procedural issue, outside the scope of substantive rights. Moreover, a call for applications did not create a civil law “contractual obligation” with respect to the applicant. Had the call not been pursued or had the post been left vacant, any question about the applicant ’ s civil rights would not have arisen. At the stage of the call for applications, it could not be said that the applicant had acquired the right to be selected. Furthermore, calls for applications to fill posts in the public service were matters regulated by public law, and the Selection Board ’ s duty to act fairly also resulted from public law. Furthermore, judicial review of administrative discretion did not imply any substantive right; it only concerned the issue of due process in the exercise of administrative discretion.

The Government further submitted that the Court ’ s latest jurisprudence on the matter, namely Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00 , ECHR 2007 ‑ ...), could not be interpreted as having established that a dispute concerning the recruitment of a civil servant was governed by Article 6 in a case where the issue of recruitment did not give rise to any rights under national law.

Without prejudice to the above, the Government submitted that the PSC qualified as an independent and impartial tribunal set up by law. Thus, the applicant enjoyed a right of access to court by having the right to raise his complaint before the PSC. Even more so, according to domestic case-law the actions of the PSC were reviewable with regard to their compatibility with respect for fundamental human rights.

2. The applicant

The applicant submitted that he had attempted all possible remedies. A constitutional case based on Article 6 of the Convention would have been tantamount to a challenge to a provision of the Maltese Constitution, in so far as Article 115 of the Constitution violated the Convention. Since the Maltese Constitution had supremacy over all other laws, any such action would have been futile.

Moreover, the Government had failed to mention any case-law denying the absolute immunity from suit of the PSC in matters of appointment to the civil service. The applicant submitted that suing the PM was the only option available to him. He had in fact been successful before the Civil Court , but the decision was then reversed by the Court of Appeal. The impossibility of challenging this immunity had also been confirmed in the Attorney General ’ s submissions before the Civil Court . Furthermore, notwithstanding that Article 6 had not been invoked in the writ of summons, reference to the European Court ’ s case-law had been repeatedly made during the oral pleadings, and even more so on appeal, where it had been submitted that the revocation of the first-instance decision would have resulted in a violation of Article 6 of the Convention.

The applicant submitted that the right to challenge the decision of a public authority in general was a recognised c ivil right enshrined in Article 469A of the Code of Organisation and Civil Procedure, namely judicial review. However, in view of Article 115 of the Constitution, judicial review was not possible when a decision was taken by the PSC. Moreover, a civil right further arose from the call for applications, which stipulated conditions that had to be satisfied and therefore created a contractual obligation that those conditions would be applied to the appointment to the post. Thus, the fact that those conditions had been breached gave the applicant the right to be selected. However, there existed no judicial control over the lawfulness of the selection, notwithstanding a breach of conditions. The applicant referred to the domestic case of Mario Borg v Telemalta Corporation (judgment of 1 February 2002) where a public corporation was successfully sued for failing to abide by the advertised internal calls for applications for promotion. The latter case could proceed as the appointment had been made by the corporation without reference to the PSC, but had the same illegal act been carried out by the PSC, it would have been immune from suit. In a further domestic case, Edward Paul Tanti v Administrative Secretary (judgment of the Court of Appeal of 7 October 2005) it was held that a civil servant had a right to sue the Government as regards his conditions of service and pensions.

The applicant further submitted that the PSC was not an independent and impartial tribunal established by law; it only made recommendations to the PM who could ask them to reconsider the matter at issue, but it did not hear or determine claims brought by parties who were aggrieved by the PSC ’ s decisions. Moreover, as accepted by the Government, the only review possible would have been in the event of discrimination or a breach of other substantive human rights, which was not the case at issue.

B. The Court ’ s assessment

The Court reiterates that the six - month rule is complied with if the first communication has been made within the time-limit, although it may have arrived several days after its expiry (see Angelova v. Bulgaria ( dec .), no. 38361/97, 6 June 2000, and Erdogdu and Ince v. Turkey [GC], nos. 25067/94 and 25068/94, § 30, ECHR 1999-IV). The applicant ’ s first communication was dated 25 November 2003. The postmark attached to the envelope containing it shows that it was posted on 11 December 2003, and thus before the expiry of the six-month time-limit provided for by Article 35 § 1 of the Convention . Therefore the application cannot be considered inadmissible on this ground.

In respect of the exhaustion of domestic remedies, the Court considers that it is not necessary to examine whether the applicant has exhausted these in respect of his complaint under Article 6 of the Convention, as the complaint must in any event be declared inadmissible for the following reasons.

The Court notes that, according to its case-law, Article 6 § 1 secures the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only (see Osman v. the United Kingdom , judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3166, § 136, and Cordova v. Italy (no. 1) , no. 40877/98, § 48, ECHR 2003-I). This right extends only to disputes (“ contestations ”) over “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law (see, among other authorities, James and Others v. the United Kingdom , judgment of 21 February 1986, Series A no. 98, pp. 46-47, § 81, and Powell and Rayner v. the United Kingdom , judgment of 21 February 1990, Series A no. 172, p. 16, § 36). The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, for instance, Werner v. Austria , judgment of 24 November 1997, Reports 1997-VII, p. 2507, § 34). It further recalls that Article 6 § 1 does not guarantee any particular content for those (civil) “rights” in the substantive law of the Contracting States: the Court may not create through the interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see Fayed v. the United Kingdom, judgment of 21 September 1994, Series A no. 294-B, § 65 and Roche v. the United Kingdom, [GC], no. 32555/96 , § 117, ECHR 2005 ‑ ... ).

The Court has also indicated that whether a person has an actionable domestic claim so as to engage Article 6 § 1 may depend not only on the substantive content of the relevant civil right, as defined under national law, but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims to court, in which case Article 6 § 1 may be applicable (see, amongst others, Osman , cited above, § 138 and A. v. the United Kingdom , no. 35373/97, § 63 , ECHR 2002 ‑ X , see also Roche v. the United Kingdom , cited above, § 119 ). However, Article 6 remains inapplicable where it is clear beyond argument that no right exists in domestic law (see Powell and Rayner , cited above, § 36 ) .

The Court notes that in the present case the applicant did not claim to have a right recognised by domestic law to be appointed to a post in the civil service, and the Court considers that no such right existed.

The Court observes, however, that the applicant, claimed to have had a right to challenge a decision of a public authority, which in the present case was prevented due to the PSC ’ s immunity. The Court considers that even if the existence of the procedural bar caused by the PSC ’ s immunity from suit prevented or limited the applicant ’ s possibilities of bringing his claims before the domestic courts, this was not sufficient to make Article 6 applicable in the present case, as the right the applicant was claiming was not “civil” in nature. The right to challenge a decision of a public authority as provided by Article 469A is derived from the concept of due process as established in the Maltese Constitution, which in the present case has no elements which could make it akin to a “civil” right required to make Article 6 applicable. Article 469A of the COCP has no features of private law, nor does it have any direct career or economic consequences for the applicant - a finding that the PSC ’ s decision was illegal would not have guaranteed the applic ant the appointment in question since , as stated by the Government , the post could have remained vacant. Thus, the right claimed by the applicant cannot be held to have been of a civil character in terms of Article 6 of the Convention, since the result of these proceedings could only have had a remote effect on any civil right, if any, held by the applicant (see Revel et Mora v. France ( dec .), no. 171/03, 15 November 2005). Consequently, even seen from this standpoint, it must be concluded that Article 6 is not applicable in the present case.

In view of this conclusion it is not necessary for the Court to determine whether the PSC is a tribunal in terms of Article 6 of the Convention.

For the above reasons the Court finds that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 35 §§ 3 and 4 of the Convention.

In view of the above, it is appropriate to discontinue the application of A rticle 29 § 3 of the Convention.

For these reasons, the Cour t unanimously

Declares the application inadmissible.

T.L. Early Nicolas Bratza Registrar President