SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48509/99 by Doris BUHAGIAR against Malta

The European Court of Human Rights ( Second Section ) sitting on 20 January 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr M. Fischbach, Mr G. Bonello, Mrs V. Strážnická, Mr P. Lorenzen, Mr A.B. Baka, Mr A. Kovler, judges ,

and Mr E. Fribergh , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 February 1999 by Doris Buhagiar against Malta and registered on 1 June 1999 under file no. 48509/99;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Maltese national, born in 1947 and living in Pieta , Malta .

She is represented before the Court by Professor Ian Refalo , a lawyer practising in Valletta , Malta .

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

The applicant, who is illiterate, was the tenant of M.F.R.

On 6 November 1996 M.F.R. requested the Rent Regulation Board (“the Board”) to grant her a re-possession order on the ground that the applicant had failed to pay rent. The applicant had been put on notice by M.F.R. that she was in arrears of rent in letters dated 15 November 1993 and 3 October 1994, the latter letter containing a warning that legal proceedings might be issued against her if she continued to fail to pay her rent.

The applicant was notified that she must appear before the Board on 8 January 1996 at 9 a.m. for a hearing on her landlady’s request for re-possession of her home.

The applicant failed to attend the hearing. M.F.R. did appear and gave evidence in support of her application for re-possession. On 7 May 1996 the Rent Regulation Board ordered that the applicant be evicted, being satisfied that she had been duly served with notice of the date of the hearing and of the nature of the summons served on her. An eviction warrant was issued on 9 October 1996.

The applicant appealed to the First Hall of the Civil Court, seeking a declaration that her right to a fair hearing had been breached and, in consequence, that the Board’s decision ordering her eviction was void. The applicant contended in particular that she could neither read nor write and that when she received the summons to appear before the Board she did not understand its contents. On that account the applicant maintained that she was not in a position to contest her landlady’s claim.

In its judgment of 23 March 1998 the First Hall of the Civil Court ruled against the applicant. The court found that M.F.R.’s application to the Board was served on the applicant on 9 November 1995 as evidenced by the fact that the applicant signed “the relative postal pink card.” However, she tore up the application, believing it to be a letter from the tax authorities. In the Court’s opinion:

“... the applicant acted unwisely when she tore up official documents not knowing what they referred to. ... It was her choice to remain ignorant of the contents ... since it was within her power to find out what the contents were. Her behaviour was not one in good faith. ... If the Court gives its approval to the maxim that says where ignorance is bliss it is folly to be wise, then everyone would act stupid in order to avoid paying his due.”

The First Hall of the Civil Court also gave weight to the fact that the applicant had been warned that her landlady might take legal proceedings against her and for that reason she should have been more cautious when she received official documents.

The applicant appealed to the Court of Appeal. She contended inter alia that the court documents sent to her through the post contained nothing to indicate their importance or how she was to proceed.

On 16 November 1998 the Court of Appeal upheld the decision of the First Hall of the Civil Court . The court found that the applicant was highly irresponsible with respect to official documents she received. The Court of Appeal rejected the applicant’s submission that the summons should have been hand delivered by a court official given that postal service of court documents was a universally recognised method of service. The court found that the applicant capriciously chose not to inform herself of the nature of the document she received by seeking the advice of a third party. It concluded that:

“It is difficult to imagine an appeal which is more frivolous or vexatious than this one.”

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that she was denied a fair hearing before the Rent Regulation Board since she was not given an effective and real opportunity to defend herself and was thereby placed at a substantial disadvantage with respect to her opponent in the proceedings. The applicant stresses that no consideration was given to the fact that she is illiterate and could not be taken to understand the importance of the summons to appear before the Board.

The applicant further complains under Article 8 of the Convention since she was evicted from the home which she occupied with her family for many years without being given an opportunity to respond to the allegations made by her landlord before the Board.

THE LAW

The applicant contests the fairness of the proceedings before the Rent Regulation Board which led to her being evicted from her home. She relies on Article 6 § 1 of the Convention as well as Article 8 thereof. These provisions state respectively and to the extent relevant:

Article 6 § 1

“In the determination of his civil rights ... everyone is entitled to a fair hearing ...”

Article 8 § 1

“Everyone has the right to respect for his ... his home ...”

The Court notes that the domestic courts found on the facts that the applicant received notification of the hearing before the Rent Regulation Board (“the Board”). Indeed, the applicant did not dispute this. The applicant chose not to inquire further into the contents of the communication. She did however appreciate its official nature. Believing it came from the tax authorities she, as was her confessed wont, tore it up. In these circumstances the Court considers that the applicant, through her negligent behaviour, must be taken to have implicitly waived her right to an adversarial procedure in her dispute with the landlady. Regardless of her illiteracy it was incumbent on her to apprise herself of the content of official documents. This she could have done without much difficulty. It was open to her to seek the assistance of a family member or other third party. It is also to be noted that the applicant had already been put on notice that she faced court proceedings on account of her failure to pay the rent on her home. The applicant has not disputed that she was made aware of that eventuality.

The Court is not persuaded either by the applicant’s argument that the summons should have been communicated to her in a more explicit and intelligible manner. Quite apart from the consideration that her illiteracy would still have been an obstacle to the comprehension of any document however clearly presented, the fact remains that the communication was served on her in the prescribed form and that reasonable notice was given to her of the date of the hearing to enable her to answer her landlady’s application for re-possession. Since she chose to ignore the communication it is not open to the applicant on the facts of the case to impugn from the standpoint of Article 6 § 1 that judgment was given against her in absentia .

For these reasons the Court finds that the applicant’s complaint does not disclose any appearance of a breach of Article 6 § 1 of the Convention.

Furthermore, the repossession of her home was effected pursuant to a lawful order which was issued in furtherance of the rights asserted by the owner under the terms of the applicant’s tenancy agreement. The applicant’s complaint under Article 8 of the Convention cannot be said either to disclose any appearance of a breach of her right to respect for her home.

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

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Erik Fribergh Christos Rozakis Registrar President