FIFTH SECTION

DECISION

Application no . 34491/12 Franco BUTTIGIEG and O thers against Malta

The European Court of Human Rights ( Fifth Section ), sitting on 7 October 2014 as a Committee composed of:

Boštjan M. Zupančič , President , Helena Jäderblom , Aleš Pejchal , judges , and Stephen Phillips, Deputy Section Registrar ,

Having regard to the above application lodged on 22 May 2012 ,

Having regard to the comments submitted by the Maltese Government and the applicants ,

Having deliberated, decides as follows:

THE FACTS

1. The case originated in an application (no. 34491/12 ) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Conve ntion”) by Mr Franco Buttigieg , Ms Sandra KirkPatrick and Ms Maria Borg Costanzi , Maltese national s, (“the applicants”), on 22 May 2012.

2 . The applicants were represented by Dr T. Azzopardi , a lawyer practising in Valetta . The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech , Attorney General.

3 . On 14 March 2013 the complaint concerning the length of proceedings was communicated to the Government.

A. The circumstances of the case

4 . The applicants were born in 1963, 1959 and 1960 respectively. The first two applicants live in Sliema and the third applicant lives in Naxxar .

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

6. In 1991 the applicant ’ s father filed a human rights action before the Civil Court (First Hall) in its constitutional competence invoking Articles 3, 11 and 14 of the Convention and the relevant articles of the Constitution.

7. Pending proceedings in 2006 the applicants ’ father died. By a decree of 14 November 2006 the applicants, as heirs, were allowed to continue the case in his stead.

8. By a judgment of 8 October 2010 the Civil Court (First Hall) in its constitutional competence found that the applicants ’ father had suffered a violation of his right to protection from inhuman and degrading treatment and from discrimination as guaranteed by the Maltese Constitution.

9. The applicants filed an appeal on 1 November 2010. In their appeal application their lawyer explained that he had been very busy and had problems of a personal nature, and that declaring the appeal inadmissible by applying a procedural rule, without entering into the merits of the case would make them bear a disproportionate burden. Two requests to allow the appeal on this ground were refused by the Constitutional Court.

10. By a judgment of 28 November 2011 the applicants ’ appeal was rejected as being out of time, the twenty day time-limit having expired on 28 October 2010. The Constitutional Court noted that time-limits for appeals were matters of public order which could not be derogated from in the interests of legal certainty and equality of treatment.

B. Relevant domestic law and practice

11 . Subsidiary legislation 12.09, namely the Court Practice and Procedure and Good Order Rules, makes specific reference to constitutional cases. Rule 4 (2), in so far as relevant read as follows:

“The application of appeal shall be made within twenty days from the date of the decision appealed from”

Rule 6 thereof reads as follows:

“Once a case has been set down for hearing the court shall ensure that, consistently with the due and proper administration of justice, the hearing and disposal of the case shall be expeditious, and the hearing of the cause shall as far as possible continue to be heard on consecutive days, and, where this is not possible, on dates close to one another.”

COMPLAINTS

12. The applicant s complained under Article 6 § 1 of the Convention that their right of access to court had been impaired. They also complained about the length of the domestic proceedings .

THE LAW

A. Article 6 § 1 of the Convention – length of proceedings

13. According to the applicants, the length of the proceedings , particularly those in first-instance, wa s in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

The Government reject the allegation.

14. The Government first submitted that the applicants had failed to exhaust domestic remedies as they had failed to institute a fresh set of constitutional proceedings complaining about the alleged failings of the Constitutional Court in their case. They further submitted that if the Court were to find that the applicants were not required to exhaust a fresh set of constitutional redress proceedings, the complaint would in any event be inadmissible as the applicants had failed to bring their application within the six-month time-limit. They considered that since on 28 November 2011 the Constitutional Court rejected their appeal as being out of time, the first ‑ instance judgment became final on 8 October 2010 and therefore more than six months before the introduction of the application with the Court on 22 May 2012.

15. As to exhaustion of domestic remedies, the applicants considered that it was unrealistic to expect them to return to the constitutional jurisdictions after twenty years of proceedings. They were of the view that, for the purposes of the six-month rule, it was the decision of the Constitutional Court, about which they were also complaining, which was the final decision.

16. In the circumstances of the present case, the Court is not required to determine the Government ’ s contentions as to exhaustion of domestic remedies as even assuming that the applicants were not required to exhaust that further remedy this part of the application is in any event inadmissible for the following reasons.

17. The Court notes that in Vukadinovič v. Slovenia ( no. 44100/09 , § 25 , 18 April 2013 ), concerning a complaint of unreasonable delay, the Court noted that the applicant ’ s constitutional appeal (forming part of the main proceedings the length of which the applicant was complaining about) had been rejected as being lodged out of time. In consequence , in the absence of a remedy ( § 23) the Court considered that the final decision to be taken into account for the purposes of the applicant ’ s complaint regarding the undue length of proceedings was the previous decision, and the application had thus been introduced with the Court out of time.

18. The Court finds no reason to hold otherwise in the present case. In particular, it notes that the applicants themselves have repeatedly reiterated in their application that it was the first-instance proceedings that failed to comply with the reasonable time requirement. Having considered that there was no effective remedy, as they claimed before this Court, they could have at any time during those proceedings, or immediately thereafter, lodged an application with this Court. However, they did not do so. Furthermore, it is evident from the terms of his appeal (see paragraph 9 above) that the applicant ’ s legal representative was aware that he had lodged the constitutional appeal on the substantive complaint (Article 3) out of time, and he must be taken to have known that it would be rejected. It follows that, in the present case, there are no exceptional circumstances enabling the Court to consider that the six months should be taken to run from the date of the Constitutional Court ’ s decision rejecting the appeal as being out of time (compare, Bokal v . Slovenia , no. 34386/10, 3 April 2014).

19. In consequence, the final domestic decision for the purposes of this length complaint must be taken to be that of the first-instance constitutional jurisdiction and the Government ’ s objection is therefore upheld.

20. Accordingly, this complaint was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

B. Article 6 § 1 of the Convention – access to court

21 . The applicant s complained about the Constitutional Court judgment of 28 November 2011. They considered that the application by the Constitutional Court of the rules of procedure prevented their appeal from being examined on the merits, and thus, their right of access to court had been impaired.

22. The Court reiterates that in deciding, on the basis of a particularly strict construction of a procedural rule, not to examine the merits of a case, domestic courts may undermine the very essence of an applicant ’ s right to a court (see BÄ›leÅ¡ and Others v. the Czech Republic , no. 47273/99, § 51 , ECHR 2002 ‑ IX and Pérez de Rada Cavanilles v. Spain , 28 October 1998, Reports 1998-VIII, § 49). The rules governing the formal steps to be taken and the time-limits to be complied with in lodging an appeal are aimed at ensuring the proper administration of justice and compliance, in particular, with the principle of legal certainty. That being so, the rules in question, or the manner in which they are applied, should not prevent litigants from using an available remedy (see Miragall Escolano and Others v. Spain , nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, §§ 33 and 36 , ECHR 2000 ‑ I ) . However, those concerned must expect those rules to be applied (see Muscat v. Malta , no. 32771/96 , § 44 , 17 July 2012 ).

23. As to the present case , the Court observes that this complaint does not concern a particularly strict interpretation by the domestic courts of a procedural provision as in Běleš , cited above, or the application of a rule based on discretion as in Muscat , also cited above . It simply concerned the application of time-limits prescribed by law in the absence of any doubt or circumstances beyond the applicants ’ control.

24. In the present case, as noted above, the applicants ’ lawyer was aware that he had missed the time-limit as he had given priority to other matters. In the present case the applicants, represented by their lawyer had twenty days to lodge an appeal, this time-limit cannot be considered as restrictive, and the domestic courts ’ decision to reject the case was both reasonable and foreseeable.

25. Thus, even assuming that the applicants were not required to pursue separate constitutional proceedings in respect of this access to court complaint, the 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,

Declares the application inadmissible.

Stephen Phillips BoÅ¡tjan M. Zupančič              Deputy Registrar President