Information Note on the Court’s case-law 66

July 2004

San Leonard Band Club v. Malta - 77562/01

Judgment 29.7.2004 [Section I]

Article 6

Civil proceedings

Article 6-1

Impartial tribunal

Examination of a request for a retrial by judges who had previously dealt with the merits of the case on appeal: violation

Facts : The applicant company occupied premises in a tenement. In 1986, the Housing Secretary issued a requisition order which protected the applicant’s occpancy. The owners of the tenement brought civil proceedings against the Housing Secretary and the applicant, which were rejected at first instance but subsequently granted by the Court of Appeal. The req uisition order was thus annulled and the owners were reinstated in the possession of the premises. Following the Court of Appeal judgment, the applicant company requested a retrial on the basis of an alleged misinterpretation of the law. At the time of fil ing its submissions, the applicant in addition requested that the judges of the Court of Appeal abstain from the case, as they were the same judges who had composed the bench which delivered the impugned judgment. The applicant’s plea challenging the judge s was rejected, as was, subsequently, the request for a new trial. The Constitutional Court recalled that retrial was not a third instance procedure and that the court which had pronounced the judgment was in the best position to identify any mistakes whic h might have been committed. It also found that there were reasons to believe that the applicant’s request for a retrial was an attempt to prolong the proceedings in order to delay the release of the premises.

Law : Article 6 § 1 – As there was no third in stance in the Maltese legal system such as a Court of Cassation, the sole possibility for a person dissatisfied with an appeal judgment was to apply for a “new trial” procedure. The ground invoked by the applicant for a “new trial” had been “wrong applicat ion of the law”, which was in substance similar to an appeal on points of law before a Court of Cassation, a remedy to which Article 6 has constantly been held to be applicable. Had the applicant’s plea that the law had been wrongly applied been accepted, the impugned judgment would have been quashed. Thus, the outcome of the new trial procedure would have been decisive for the applicant’s “civil rights and obligations” and Article 6 § 1 was therefore applicable. As regards the subjective test for assessing whether the Court of Appeal was an impartial tribunal within the meaning of Article 6 § 1, nothing showed that the judges composing the court had any personal prejudice. As to the objective test, the Court of Appeal judges were essentially called upon to decide whether or not they themselves had committed an error of legal interpretation or application in their previous judgment, being in fact requested to judge themselves on their own ability to apply the law. Such circumstances were sufficient to hold th e applicant’s fears as to the lack of impartiality of the Court of Appeal to be objectively justified.

Conclusion : violation (unanimously).

Article 41 – No claim for just satisfaction had been submitted.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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