117 6th meeting – 10 July 2013

Appendix 14

( Item H46-1 )

Resolution CM/ ResDH (2013)145

Mercieca and others against Malta

Execution of the judgment of the European Court of Human Rights

(Application No. 21974/07, judgment of 14 June 2011, final on 14 September 2011)

(Adopted by the Committee of Ministers on 10 July 2013 at the 1176th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violation established;

Recalling that the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)653 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Execution of j udgments of the European Court of Human Rights

Action Report Mercieca and others against Malta

( Application N o. 21974/07; judgment of 14 June 2011, final on 14 September 2011)

Case s ummary

1. Case description

The applicants were certified public accountants who were being sued for damages arising out of claimed negligence. On 1 December 2003, in a preliminary judgment, the Civil Court dismissed their plea that the action should be dismissed. On 12 December 2003, the Civil Court granted leave to appeal . On 29 December 2003, the applicants lodged their appeal. On 8 June 2004, the Court of Appeal dismissed the appeal as being out of time due to its interpretation of the relevant rules in place. In March 2007, the Constitutional Court acknowledged that the Court of Appeal ’ s interpretation of the law had been erroneous and had deprived the applicants of their right to appeal. Nevertheless, it found that given that a defect in first-instance proceedings could be remedied on appeal, the right to a fair hearing had not been violated.

The European Court held that the applicants had been denied access to a court because the applicable rules on time limits had been erroneously construed by the Court of Appeal in such a way as to prevent the applicants ’ appeal being examined on the merits (violation of Article 6 § 1).

Individual m easures

2. Just satisfaction:

The just satisfaction awarded has been paid and evidence of payment previously supplied.

3. Individual measures:

The applicants ’ domestic proceedings, referred to in the judgment, have now reached the final stages prior to the first instance decision. Following the delivery of the judgment by the court of first instance, the applicants will have the opportunity to file an appeal against both the partial judgment as well as an appeal against the final judgment should they wish to do so. The time limits for such an appeal are clearly provided for by the amended Article 231 (1) of the Code of Organisation and Civil Procedure (set out below).

The authorities are of the opinion that the judgment does not require the adoption of any further individual measures.

General m easures

4. General measures:

The Maltese legislation regulating time limits for appeal has been amended to avoid any future misinterpretation. Act XIII of 2005 amended Article 231 (1) of the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta). This amendment, set out below, now clarifies the time limits for appeal, including after partial judgments:

“231 (1) Where several issues in an action have been determined by separate judgments, appeal from any such judgments may only be entered after the final judgment and within the prescribed time, to be reckoned from the date of such final judgment; and in such an appeal express mention of the judgment or judgments appealed from shall be made:

Provided that an appeal from such separate judgments may be entered before the final judgment only by leave of court to be read out in open court; such request for leave to appeal shall be made either orally immediately after the delivery of such judgment or by application within six days from such judgment and when such leave to appeal from such separate judgments is granted the time for the filing of the appeal in respect thereof shall commence to run from the day on which the said leave is read out in open court.”

5. Publication and d issemination:

The judgment was published and disseminated to the Constitutional Court. All judgments of the European Court in which Malta features as a party are automatically sent out to the competent authorities and are publicly available via the website of the Ministry for Home Affairs and National Security which provides a direct link to the European Court ’ s website.

The judgment received media coverage by local newspapers (article published on the Times of Malta online website of the 16th June 2011 entitled ‘ Ma ltese accountants win European C ourt case ’ ).

Judgment features in the publication in the names ‘ Malta at the European Court of Human Rights 1987 – 2012 ’ , Sammut , Cuignet & Borg, 2012.

State of execution of judgment

The g overnment considers that all necessary individual and general measures have been taken to execute the judgment and that the case should be closed.