117 6th meeting – 10 July 2013

Appendix 15

( Item H46-1 )

Resolution CM/ ResDH (2013) 146

San Leonard Band Club against Malta

Execution of the judgment of the European Court of Human Rights

(Application No. 77562/01, judgment of 29 July 2004, final on 29 October 2004)

(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 and noting that no award of just satisfaction was made by the Court in the present case (see document DH-DD(2013)651 );

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 Judgments of the European Court of Human Rights

Action Report San Leonard Band Club against Malta

( Application N o. 77 562/01; judgment final on 29 October 2004)

Case s ummary

1. Case description:

The case concerns the violation of the applicant ’ s right to a fair hearing before an impartial tribunal. In 1996, in the context of a petition for retrial of civil proceedings, the same judges of the Court of Appeal were called upon to ascertain whether their previous judgment was based on a misinterpretation of the law (violation of Article 6 § 1). Thus, the same judges were called upon to decide whether or not they themselves had committed an error of legal interpretation or application in their previous decision (§§63-64 of the judgment).

The European Court found that these circumstances were sufficient to hold that the applicant ’ s fears as to the lack of impartiality of the Court of Appeal were objectively justified (§65).

Individual m easures

2. Just satisfaction:

The applicant company ’ s lawyers did not submit any claim for just satisfaction or for reimbursement of costs and expenses, although invited to do so. Accordingly, the Court decided not to award any sum in these respects.

3. Individual measures:

The European Court indicated that in cases of violation of the right to a fair trial before an independent and impartial tribunal, the most appropriate measure in principle is reopening the case before an independent and impartial tribunal (§70).

In a decision of 18 May 2005, the Constitutional Court ordered that the applicant ’ s petition for retrial of 21 May 1994 should be heard afresh, and that the Court of Appeal should not be composed of the same judges who had presided over the previous proceedings. The domestic proceedings were subsequently reopened and a new panel of judges, different from those having sat in the original first-instance or appeal proceedings, presided over the new proceedings. On 27 February 2009 the proceedings were completed.

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

General m easures

4. Other g eneral measures:

The European Court ’ s judgment has resulted in a change of judicial practice: in the event of a request for retrial the judges involved have, to date, always abstained from presiding over the retrial proceedings.

5. Publication and d issemination:

The judgment has been published and disseminated to the Court of Appeal. All judgments of the European Court against Malta are automatically sent out to 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.

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 measures have been taken to execute the judgment and that the case should be closed.