JOINT DISSENTING OPINION OF JUDGES COSTA, JUNGWIERT, KOVLER AND FURA

(Translation)

There are several reasons why we have not been able to agree with the majority of the Grand Chamber in this case.

1. First of all, Mrs M., the applicant’s sister (now deceased), does not appear to us to have incurred a significant disadvantage in this case, which concerned a trivial dispute between neighbours, and respect for human rights did not, in our view, require our Court to examine this case on the merits. Admittedly, Protocol No. 14 (which has been signed and ratified by Malta) has not yet come into force. However, without waiting for the amendment to Article 35 § 3 of the Convention that will be made once this Protocol does come into force, it is surprising that the Court – overburdened as it is with applications – did not consider this application to be inadmissible, particularly as an “abuse of the right of application” within the meaning of Article 35 § 3 in fine of the current text. It will suffice to recall how the case originated: it started in 1985 with an injunction being taken out to restrain Mrs M. from hanging her washing out to dry over her neighbour’s yard. The Civil Court subsequently made two orders, followed by a judgment; after that, the Court of Appeal gave a judgment, and then Mrs M. lodged a constitutional appeal which her brother – the applicant – took up nine years after it had been lodged, following his sister’s death. The Civil Court and the Constitutional Court ruled two and three years later respectively, and, lastly, a Chamber of the European Court of Human Rights, by a majority of four votes to three, declared the application admissible and found a violation of Article 6 § 1 of the Convention. The disproportion between the triviality of the facts and the extensive use – or rather over-use – of court proceedings is an affront to good sense, especially as serious human rights violations subsist in a number of States Parties. Is it really the role of our Court to determine cases such as this?

2. Next, we are not at all convinced that the applicant can be considered to have victim status. In this respect we fully agree with the very well argued opinion of our colleagues, Judges Davíd Thór Björgvinsson and Malinverni.

Whatever the importance of sibling ties, we do not see any sufficient interest on the part of the applicant in lodging an application with the Court alleging impartiality of the domestic courts fourteen years after Mrs M.’s death. We are verging on an actio popularis here. In this respect too there is an element of abuse of the right of petition because even if impartiality, which is a fundamental plank of the right to a fair trial, is a matter of general interest, Mr Micallef cannot rely on it without having personally sustained prejudice. Moreover, the European Court of Human Rights, which does not have the power to deliver opinions on its own initiative, has always taken care to rule in concreto and not decide legal issues in the abstract.

3. We will pass over the Government’s preliminary objection regarding the failure to exhaust domestic remedies, debatable though it is.

4. However, we cannot find Article 6 § 1 applicable in the present case. It is clearly not applicable under its criminal limb. As regards its civil limb, we entirely agree with the view expressed in the dissenting opinion annexed to the Chamber judgment (opinion of Judge Bratza, joined by Judges Traja and Hirvelä). In substance, we find that the Grand Chamber stretches the notion of a dispute over civil rights and obligations to an almost unlimited degree and places undue weight on the decision in Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007-II), which was confined to extending the applicability of Article 6 § 1 to disputes involving civil servants, thus reversing the decision in Pellegrin v. France (([GC], no. 28541/95, ECHR 1999-VIII – see paragraph 61 of the judgment in Vilho Eskelinen and Others , cited in point 11 of the above-mentioned dissenting opinion of Judge Bratza).

We have also observed the following procedural anomaly. In the present Micallef case the Civil Court gave a judgment on the merits (and not in interlocutory proceedings) on 6 March 1992. In that judgment the court recognised the merits of the complaints made by the neighbour, Mr F., and awarded costs against Mrs M. The latter never appealed against that judgment, which accordingly became final. Article 6 § 1 could have been found to be applicable to those proceedings, but by preferring to continue the proceedings relating to the interlocutory application, Mrs M., and subsequently the applicant – her brother – chose to pursue proceedings which, in our view, did not concern a dispute over civil rights or obligations and, in any event, did not settle it. As our colleague, Judge Bratza, explained, proceedings relating to interim orders should only very exceptionally attract the protection of Article 6 § 1 because this provision requires the court to determine civil rights (décide d’une contestation in French). This was not the case here. This argument supplements and supports those expressed in the excellent dissenting opinion annexed to the Chamber judgment.

5. So – assuming that Mr Micallef can be regarded as a victim (of what?) – Article 6 § 1 is inapplicable. Accordingly, it cannot have been infringed.

PARTLY DISSENTING OPINION OF JUDGES DAVÍD THÓR BJÖRGVINSSON AND MALINVERNI

(Translation)

1. We disagree with the majority in this case in that, in our view, the applicant could not claim to be a victim of a violation of Article 6. According to the case-law, in order to claim to be a victim of a violation of the Convention, a person must be directly affected by the impugned measure (see Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008).

Admittedly, the Court has always stated that the concept of victim cannot be applied in a rigid, mechanical and inflexible way (see Karner v. Austria , no. 40016/98, 24 July 2003, § 25, ECHR 2003-IX). It has, for example, recognised that the cases before it generally also have a moral dimension and that persons near to an applicant may thus have a legitimate interest in seeing to it that justice is done. This holds true all the more if the leading issue raised by the case transcends the individual and the interests of the applicant and may affect other persons.

We also know that the Court may decide, in certain circumstances, that respect for human rights as defined in the Convention and the Protocols thereto requires the Court to continue the examination of the case (Article 37 § 1 in fine of the Convention), where it raises an issue of general interest (see Karner , cited above, and Marie-Louise Loyen and Bruneel v. France , no. 55929/00, § 29, 5 July 2005). Such an issue may arise in particular where an application concerns the legislation or a legal system or practice of the respondent State (see Altun v. Germany , no. 10308/83, Commission decision of 3 May 1983, Decisions and Reports 36, p. 209, and, mutatis mutandis , Karner , cited above, §§ 26 and 28).

Regarding more particularly complaints under Article 6, the Court has been prepared to recognise the standing of a relative either when the complaints were of a general interest and the applicants, as heirs, had a legitimate interest in pursuing the application (see Marie-Louise Loyen and Bruneel , cited above, § 29, and, conversely, Biç and Others v. Turkey , no. 55955/00, § 23, 2 February 2006), or on the basis of the direct effect on the applicant’s patrimonial rights (see Ressegatti v. Switzerland , no. 17671/02, § 25, 13 July 2006).

2. It is mainly on the basis of the foregoing considerations that, like the Chamber, the majority of the Grand Chamber held that the applicant had standing to lodge the application with the Court (see paragraphs 49-51 above).

3. We would point out, for our part, that even if, in assessing the applicant’s victim status, it takes account of the fact that the applicant, as in this case, was a party to the domestic proceedings, the Court interprets the concept of victim autonomously (see Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000-XI).

4. In the present case the direct victim, Mrs M., died during the constitutional proceedings at domestic level.

In assessing the victim status of an applicant in the event of the death of the direct victim, the case-law makes a distinction according to whether the death occurred before or after the application was lodged with the Court.

(a) Where the direct victim has died after the application was lodged with the Court, the latter normally grants the members of the victim’s family leave to pursue the application, on condition that they have a sufficient interest.

Accordingly, in of Malhous v. the Czech Republic ((dec.) [GC], no. 33071/96, ECHR 2000-XII), the Court recognised the victim status of the applicant’s nephew, who had sought leave to pursue the application lodged with the Court by the applicant, on the ground that the latter had designated his nephew as universal heir of his estate and that there were prospects of his being eventually recognised as such, in which case at least part of the applicant’s estate would accrue to him.

Similarly, in Dalban v. Romania ([GC], no. 28114/95, ECHR 1999-VI) the Court recognised the victim status of the applicant’s widow, who had merely pursued the proceedings instituted before the Court by her husband before he died.

(b) The situation is different, however, where the direct victim has died before having lodged an application with the Court. Thus, in Fairfield v. the United Kingdom ((dec.) no. 24790/04, ECHR 2005-VI), the Court found that the daughter and executors of a person who had died – the application had been lodged in that person’s name after his death – did not have victim status even though the executors had been granted leave to pursue the appeal at domestic level.

An analysis of the case-law shows that where the direct victim has died before the application was lodged with the Court, the latter will only very exceptionally recognise the members of the victim’s family as having victim status. This will be the case where, for example, the very nature of the alleged violation has prevented the direct victim from asserting his or her complaints in person. Thus the members of the family of a person missing and presumed dead have standing to rely on Article 2.

Such will also be the case where an applicant is himself affected by what he considers to be the adverse consequences of the alleged violation. In Ressegatti (cited above, § 25), the Court held that the alleged violation of the right to a fair trial had had a direct effect on the applicants’ patrimonial rights given that, by virtue of their capacity as heirs, the judgment had become binding on them and that, by virtue of the res judicata principle, they could not obtain any further decision in the same case.

5. In our opinion, the above-mentioned conditions were not fulfilled in the present case. As the concept of victim is an autonomous one, it is irrelevant, in our view, that the domestic courts did not reject the application lodged by the applicant with a view to intervening in the proceedings in his capacity as brother and heir of the complainant or that they did not refuse to rule on his application.

While it is true that the legal issue raised in the present case concerned the proper administration of justice and could be considered to constitute a matter of general interest, it did not, in our view, do so to the point of extending the concept of victim to such a degree. It is worth pointing out in this connection that in its judgment of 29 January 2004 the Civil Court dismissed Mrs M.’s claim as frivolous and vexatious (see paragraph 23 above). As the Court rightly stated in its decision in Fairfield , Article 34 does not institute for individuals a kind of actio popularis for the interpretation of the Convention or permit individuals to complain against a law.

Nor is the present case comparable to the Ressegatti case, because in this case the applicant had to pay only the costs of the proceedings instituted by his sister.

6. Lastly, it is debatable whether the applicant could still legitimately rely on a current interest seeing that on 6 March 1992 the court having jurisdiction to try the merits of the civil action brought by Mr F. found against Mrs M. and that, as no appeal had been lodged, that decision became final on 24 March 1992 (see paragraph 14 above).

7. This is where our disagreement with the majority ends. Aside from that, we approve this judgment and welcome the development of the case-law that it inaugurates, in so far as it extends the application of Article 6 to interim measures including injunctions (see paragraphs 78-89 above).