CONCURRING OPINION OF JUDGE BONELLO

1. I had no hesitation in voting with the majority to find that a system which allows lawyers in adversarial proceedings to plead before courts preside d over by their close relatives violates in itself the Article 6 guarantee of an impartial tribunal, independently of the judge ’ s conduct in the specific circumstances.

2. It has to be borne in mind that quite often in civil proceedings what the presiding judge is called upon to determine may not be the factual merits of the lawsuit, but the professional competence, expertise, honesty, strategies and diligence of the defending lawyers. The court may be required to establish whether the lawyer ’ s management of the case was sound, fanciful, negligent or downright erroneous. (Did the lawyer sue the defendant in the competent court? Did the lawyer comply with the formalities required in written pleadings? Did the lawyer mislead the court? Did the lawyer summon all the relevant witnesses? Were time limits allowed to lapse?) When a court brands an advocate ’ s handling of a case as defective, this may open the way to an action for damages by the client against the lawyer. The Maltese system, until recently, allowed judges to determine whether their son, daughter, parents, spouse or sibling could be sued in tort. The impartiality of presiding judges called upon to decide the professional virtue or otherwise of their closest relatives would be seen to be rather problematic, and not solely by the passionately paranoid. This injury to fairness was retained in the Maltese legal system with a firmness of purpose worthier of causes more noble. We could all come round to accepting that the family is a fundamental value in society, but surely we would not want to take this value that far.

3. It seems to me that all members of the Court, whether in the majority or in the minority, decried as markedly unacceptable this blissful all-in-the-family jamboree, in lighter moments sometimes called administration of justice. What they disagreed about is whether the particular court proceedings (in which the impugned behavior of the presiding judge allegedly in favour of his brother ’ s professional conduct occurred) attract the protection of the Article 6 fair trial guarantees or not. The minority has suggested that this evil occurred in the course of injunction proceedings, and that , according to the Court ’ s case- law, these fall outside the protection of the fair trial guarantees enshrined in Article 6.

Injunction proceedings?

4. Let me state from the outset that I do not believe that the alleged violation occurred in injunction proceedings at all – and with this I will deal later. Equally at the outset I want to make clear that I find distressing, to say the least, this non-applicability of Article 6 to injunction proceedings det ermined by courts. The old case- law of the Strasbourg organs seems to have taken on board as altogether in conformity with the Convention the view that injunctions should be issued or denied by a biased judge, by a judge in the pocket of one of the parties, or by a judge with a personal or family interest in the outcome of that injunction. Family business which is none of Strasbourg ’ s business. I would be less than thrilled to be identified with a doctrine so bizarre, and fight back, with moderate success, an impelling urge to invite the European Court of Human Rights to grow up where Article 6 is concerned.

5. The argument of the non-interventionists is that injunctions do not really determine civil rights and obligations and are thus outside the ambit of Article 6. I have but little doubt that injunction proceedings do determine civil rights and obligations – even if provisionally. They hinder or permit the exercise of civil rights, and they determine – temporarily – civil rights and obligations, sometimes with extremely far-reaching consequences for the parties. Nowhere does the Convention, nor the basics of rationality, mandate that civil rights and obligations should be determined irretrievably in order for Article 6 to be allowed entry. If that were so, Article 6 would equally not apply at all to first instance civil proceedings, subject as they are to reversal on appeal and annulment by cassation. The inscrutable logic of leaving Article 6 out in the cold where civil injunctions are concerned struggles to climb very high on my scale of judicial virtue or virtuosity.

6. I grudgingly concede, but solely for the purpose of this opinion, that Article 6 fails to apply to injunction proceedings. The core question however remains whether the alleged misconduct of the court and the inability to disqualify a judge by reason of his close kinship with the adversary ’ s lawyer, occurred in injunction proceedings or not.

7. The answer, in my view, is clearly that they did not. Unless the sequence of these lawsuits in Malta is kept in mind, the pitfalls of lumping together the injunction proceedings with subsequent proceedings which with injunctions had nothing to do at all, will be hard to avoid.

8. The Maltese legal system incorporates provisions for the issue of injunctions to regulate civil controversies provisionally. More to the point, the system recognis es as enforceable and autonomous civil rights the observance of the principles of natural justice in court proceedings, coupled with the corresponding civil right to annul anything done in violation of these principles. The basic issue is whether the violation of Article 6

occurred in injunction proceedings, or, as the majority established, in the ambit of a totally different civil action which dealt with and determined irrevocably the separate audi alteram partem civil right.

9. In Malta the litigants went through three wholly distinct sets of civil proceedings:

a. The original civil lawsuit during which the plaintiff sought and obtained an injunction against the applicant. The Article 6 violation complained of did not occur in these proceedings.

b. This was followed by the audi alteram partem proceedings which the applicant instituted in accordance with Maltese civil law jurisprudence – not to review the merits of the injunction, but to establish whether her civil right to benefit from the principles of natural justice in civil proceedings had been complied with or not. In first instance the civil court ascertained that the plaintiff/applicant ’ s ‘ natural law ’ civil rights had been breached. On appeal, the c ourt was presided over by the brother of the lawyer of the other party, and this court revoked in favour of the defendant the judgment given by the first court in favour of the applicant. It is during these appeal proceedings which determined the applicant ’ s civil right of audi alteram partem - and not in any way the merits of the injunction - that the alleged violation of Article 6 occurred.

c. These were in turn followed by the Constitutional proceedings which challenged the violation of Article 6 by the court of appeal. The court of constitutional jurisdiction dismissed the applicant ’ s Article 6 complaint as frivolous and vexatious. The ECHR, subscribing to a rather different school of thought, found that complaint to be significant, momentous – and well-founded too.

10. In the injunction proceedings, at stake was whether the court should issue a restraining order against the defendant or not. The court set the case down for public hearing, but, allegedly on the initiative of the other party ’ s lawyer, issued the injunction without hearing the defendant at all. These were standard injunction procee dings to which the Court ’ s case- law denies the protection of Article 6. It is not, however, this irregularity that forms the basis of the Strasbourg complaint.

11. After this, a totally different set of civil proceedings was instituted by the defendant in which the matter at issue had absolutely nothing to do with the merits of the injunction or with whether the plaintiff in the original civil lawsuit was right in requesting and obtaining a restraining order against the defendant. This second set of proceedings were aimed at determining exclusively and conclusively the applicant ’ s autonomous civil right, recognis ed by Maltese law, to be heard when the adjudicating court had established that a hearing was essential for the proper administration of justice. The first set of proceedings discussed exclusively a neighbour ’ s right to restrain another tenant from hanging washing over his yard – standard injunction proceedings. The second set of proceedings, on the other hand, concerned exclusively the final determination of the eminently civil right of audi alteram partem according to the principles of natural justice - a civil right legally enforceable in Malta as an independent right. It is in this second set of non-injunction proceedings that the court was presided over by the brother and uncle of the opponent ’ s lawyers, and when the violation of Article 6, ascertained by this Court, occurred.

12. What was at stake in the first proceedings was whether to restrain clothes from dripping into a neighbour ’ s yard. What was at stake in the second set proceedings had nothing to do with wet washing and everything to do with determining finally the plaintiff ’ s autonomous civil right enshrined in Maltese law to be heard when a court opts to set down a judicial controversy for hearing. It was in these non-injunction proceedings that Article 6 was violated. The civil court determined this civil right in the applicant ’ s favour. The court of appeal, presided over by the brother and uncle of the defendant ’ s lawyers, determined this civil right in the defendant ’ s favour. The inescapable conclusion is that these proceedings determined finally the civil rights of the applicant which were the merits of the second action. Should this deformed final determination of a civil right be immune from Article 6 too?

13. I already find it difficult to concede that judges owe no responsibility at all to Article 6 in injunction proceedings. But I find it wholly unacceptable that this jaundiced principle of irresponsibility should also contaminate proceedings which have absolutely nothing to do with injunctions or their merits . That is why the majority voted for the applicability of Article 6 to the audi alteram partem appeal presided over by the brother of the defendant ’ s lawyer.

Vilho Eskelinen, Subsidiarity and Exhaustion of Domestic Pleading

14. This case also raised other compelling issues I would not be at all happy to overlook. The non-applicability of Article 6 to the second set of proceedings was only pleaded by the defendant government in Strasbourg (and solely after a specific question to this effect had been put to them at the communication stage). The Government could have pleaded in the Constitutional law-suit (the third set of proceedings in Malta ), the non-applicability of Article 6 - and they did not. The civil court in its Constitutional jurisdiction too could have raised that overriding plea ex officio , and again it did not. On the contrary, the court of constitutional jurisdiction which decided the merits proceeded on the premise that Article 6 did apply, and went on to examine and determine the case in accordance with its reading of Article 6.

15. This judicial schizophrenia (Article 6 protection flourishes in the domestic jurisdiction, but falls effortlessly dead on the doorstep of the Strasbourg Court ) brings into play two other pre-eminent considerations. Firstly , it goes frontally against the Vilho Eskelinen principle that when Article 6 applies to a controversy in the domestic jurisdiction, it is only exceptionally that it should be deemed inapplicable in Strasbourg . The ECHR, says Vilho Eskelinen , should never be seen to afford lesser protection to human rights than the domestic courts do. The Vilho Eskelinen doctrine, in my view, supersedes in time and breath the older case- law regarding the inapplicability of Article 6 to injunction proceedings. The Court still has an o bligation to apply its old case- law, but in the light of the supervening Vilho Eskelinen doctrine – in the sense that when the domestic courts deem Article 6 applicable to a judicial contro versy, Strasbourg would do ill t o act differently.

16. Secondly , the fact that the Government only raised the inapplicability of Article 6 in Strasbourg challenges the principle of subsidiarity of the European system to the domestic one. Neither the respondent Government nor the domestic courts ever questioned the applicability of Article 6 to these proceedings in Malta . The domestic jurisdictions were never given the opportunity to examine and determine this issue before it was served for lunch to the supranational European tribunal. It was only in Strasbourg that the Government first brought the issue up for adjudication.

17. I have heard very few persuasive reasons why the domestic jurisdiction should have been cheated of its function of being the first to determine this question. Even fewer why applicants should be denied access to this Court if they fail to exhaust domestic remedies, while Governments should walk the red carpet all the way to Strasbourg when they fail to exhaust domestic pleas. Actions and pleas are mirror images of each other in the symmetry of the adversarial judicial process, and an international supervisory court should be the last to disturb this symmetry. Why one weight and one measure for the applicant, and none at all for the Government? Why this slap in the face of equality of arms between the two contenders? Why is the principle of subsidiarity so religiously adhered to when the applicant contravenes it, and so submissively set aside for the Government? Exactly the same reasons which require the applicant to exhaust remedies in the domestic fora should require the Government to exhaust pleas in the domestic fora too. Otherwise this Court turns into one of last resort for the applicant and of first resort for the Government.