FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34539/02 by Nicholas Richard DEBONO against Malta

The European Court of Human Rights (First Section), sitting on 10 June 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , Mr K. Hajiyev, judges , and Mr S. Quesada , Deputy Section Registrar ,

Having regard to the above application lodged on 6 September 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Nicholas Richard Debono, is a Maltese national, who was born in 1934 and lives in Marsascala. He is represented before the Court by Mr T. Abela, a lawyer practising in Malta.

A. The circumstances of the case

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

1. The first-instance proceedings instituted by the applicant

On 13 June 1996 the applicant instituted proceedings against the Water Services Corporation, against the Director of the Drainage Department in the Ministry of the Environment and against the Minister of the Environment. He complained about the infiltration of foul liquid in several of his properties, allegedly due to the seepage of drainage from the Government drainage system, and asked for compensation.

Thirty-three hearings took place before the Civil Court. A number of witnesses were examined and an expert report was prepared. Thirteen hearings were adjourned by reason of the defendants’ absence.

In a judgment of 5 July 2000, the Civil Court found in favour of the applicant. It freed the Minister of the Environment from the proceedings and declared that the two other defendants were responsible for the damages suffered by the applicant. It therefore awarded him 5,649.92 Maltese liras (LM – approximately 13,611 euros) for damages and a sum for reimbursement of all the legal costs of the case.

2. The proceedings before the Court of Appeal 

On 25 July 2000 the Water Services Corporation and the Director of the Drainage Department appealed against the judgment of 5 July 2000.

On 31 July 2002 the applicant requested that his case be dealt with and decided within a short time.

By a decree of 28 August 2002 the Court of Appeal ordered that the case be appointed according to law.

The hearing was fixed at 10 December 2002. An application for postponement presented by the Director of the Drainage Department on the ground of the absence of his lawyer was rejected.

On 10 December 2002 the parties presented their pleadings and the case was left for judgment to be delivered on 25 April 2003.

In a judgment of 8 May 2003, the Court of Appeal confirmed the first-instance decision. Observing that the first court had correctly concluded that the applicant had summoned the Minister of the Environment without good reason, the Court of Appeal decided that the legal expenses incurred by the Minister should be borne by the applicant.

(a) The constitutional complaint before the First Hall of the Civil Court

In the meanwhile, on 1 October 2002, the applicant had filed a constitutional complaint before the First Hall of the Civil Court. He alleged that as the appeal against the judgment of 5 July 2000 had not been decided, his right to a hearing with a reasonable time, guaranteed by Article 6 § 1 of the Convention and by Article 39 § 1 of the Constitution of Malta, had been violated.

By a judgment of 29 April 2002, the First Hall of the Civil Court upheld the applicant’s claim and awarded him a compensation of 500 LM (approximately 1,204 euros).

The Civil Court noted that the applicant had diligently checked whether the appeal hearing had been fixed, and that it was apparent that this had not been done due to the workload of the domestic jurisdiction. Now, the State had the duty of organising its judicial system in such a way that the courts could comply with the requirements established in Article 6 of the Convention.

Moreover, it should be observed that according to Article 152 (1) of Chapter 12 of the Laws of Malta, as in force at the relevant time, the Registrar had the duty to list an appealed cause for hearing not later than six months after the filing of the application to appeal. However, in the applicant’s case the date of the hearing had been fixed at 10 December 2002, and this had happened only after the applicant had filed two judicial acts, in which he was complaining about the undue delay. As a principal rule of procedure had been breached, and no fault could be imputed to the applicant, the Civil Court found a violation of the “reasonable time” requirement.

In reaching this conclusion and in determining the amount to be granted as a just satisfaction, the Civil Court took into account only the period which started from July 2000, as in his constitutional complaint the applicant did not refer to the duration of the first-instance proceedings.

(b) The appeal before the Constitutional Court

The Principal Registrar of the Courts of Justice, the Minister of Justice and the Local Government appealed against the judgment of 29 April 2002. They alleged that lack of observance of Article 152 (1) of Chapter 12 of the Laws of Malta could not be considered tantamount to a violation of the “reasonable time” requirement and that the appointment of cases for particular dates did not depend on the Registrar. The defendants also complained about the amount of compensation they had been ordered to pay.          

  In a judgment of 30 June 2003, the Constitutional Court upheld the appeal and annulled the impugned decision in so far as it had accepted the applicant’s claims.

The Constitutional Court noted that the lack of observance of the six months period mentioned in the said Article 152 (1) could not amount to a violation of Article 6 of the Convention. In fact, according to the Strasbourg case-law, a failure to comply with the time-limits set out in the domestic law did not in itself infringe the “reasonable time” requirement.

The Constitutional Court further observed that the applicant was complaining about the delay between the date on which his appeal was filed (25 July 2000) and the date of the first hearing before the competent court (10 December 2002). An overall period of less of two years and five months was at stake. Taking into account the number of duties that the Court of Appeal had to accomplish, such delay could not be considered excessive. It was true that the State was obliged to organise its judicial system in a way that all the guarantees afforded by Article 6 of the Convention were respected; however, regard must be had to all the circumstances of the case, and to the remedial actions undertaken by the authorities in order to cope with a temporary backlog of business affecting the domestic courts.

In the Constitutional Court’s view, the applicant’s case was not an easy one. It took more than four years to decide it at first instance. The applicant was not complaining about this first delay, which was in any case justified by the number of witnesses heard, by the volume of documents and notes submitted to the judge and by the factual and technical difficulties encountered by the expert. Moreover, there wasn’t any special reason to treat the appeal with urgency and it was necessary to consider that in 2002 the Court of Appeal had faced abnormal problems, as its President had changed twice within a few months. Notwithstanding this, when the applicant requested that his case be decided within a short time, the Court of Appeal fixed the hearing at 10 December 2002 and rejected a request for postponement presented by the Director of the Drainage Department.              

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention about the length of the civil proceedings he had instituted.

2. Invoking Article 6 § 1 of the Convention, the applicant complain about the unfairness of the proceedings at issue.

THE LAW

1. The applicant considers that the length of civil proceedings he had instituted before the Civil Court was excessive. He invokes Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations (...) everyone is entitled to a fair (...) hearing within a reasonable time by [a] tribunal (...).”

(a) As far as the complaint concerns the length of the first-instance proceedings, the Court observes that in his constitutional claim, the applicant complained only about the length of the proceedings before the Court of Appeal, failing to challenge the duration of the first-instance proceedings. Accordingly, the First Hall of the Civil Court and the Constitutional Court took into account only the delays which occurred after the filing of the Appeal (July 2000).

Now, it is to be noted that nothing prevented the applicant from raising before the competent constitutional jurisdictions the question of the duration of the first-instance proceedings. Had they found a violation of the “reasonable time” requirement in this respect, the Civil Court and the Constitutional Court could have awarded just satisfaction for any pecuniary and non-pecuniary damage sustained by the applicant (see, mutatis mutandis , Brusco v. Italy , no. 69789/01, ECHR 2001-IX, and Giacometti and others v. Italy , no. 34939/97, ECHR 2001-XII).

That being so, the Court considers that there is no reason to believe that the a constitutional claim relating to the duration of the first-instance proceedings would not have afforded the applicant the opportunity to obtain redress for his grievance or that it would have had no reasonable prospect of success. Furthermore, there do not appear to be any exceptional circumstances capable of exempting the applicant from the obligation to exhaust domestic remedies with respect of the length of the first-instance proceedings.

It follows that this part of the complaint must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

(b) As far as the applicant’s complaint concerns the length of the proceedings before the Court of Appeal, the Court notes that this part of the domestic proceedings started on 25 July 2000, date of the filing of the defendants’ appeal, and ended on 8 May 2003, when the Court of Appeal’s final judgment was delivered. Their overall length is therefore two years, nine months and thirteen days.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant complains about the unfairness of the proceedings he had instituted before the Civil Court.

The applicant refers, in particular, to the fact that the Court of Appeal decided that the expenses involved in the defence of the Minister of the Environment should be borne by him and that no award was given regarding the thirteen sittings which did not take place at first-instance due to the failure of the defendants to appear.

The Court first observes that the applicant has failed to introduce a constitutional complaint before the First Hall of the Civil Court alleging a violation of his right to a fair trial. However, the Court does not consider it necessary to ascertain whether the domestic remedies have been exhausted, as, even if they were, this part of the application would in any case be inadmissible, for the following reasons.

The Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention ( García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

For the purposes of the present case, the Court will confine itself in observing that the lack of compensation for the thirteen sittings adjourned during the proceedings before the Civil Court is connected to the fact, noted above, that the applicant did not complain about the length of the first-instance proceedings in the ambit of his constitutional claim.

As to the expenses for the defence of the Minister of the Environment, the Court points out that, making use of their uncontested right to assess the fact and to interpret the domestic legislation, the Maltese courts had found that the Minister had been summoned without reason. In the Court’s opinion, no appearance of arbitrariness can be seen in the fact that the person responsible for the summons was called to bear the costs sustained by the aggrieved party.     

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of the proceedings before the Court of Appeal;

Declares the remainder of the application inadmissible.

Santiago Quesada Christos Rozakis              Deputy Registrar President