DISS ENTING OPINION OF JUDGE BRATZA, JOINED BY JUDGES TRAJA AND HIRVELÄ

1 . I regret that I am unable to agree with the majority of the Chamber that the present case is admissible or, in consequence, with the majority ’ s view that Article 6 has been violated. In my view, the applicant ’ s complaint should have been declared inadmissible on the grounds that Article 6 was inapplicable to the proceedings in which the impugned decision of the Court of Appeal was taken and that the application is accordingly incompatible ratione materi a e .

2 . The facts underlying the application are of considerable importance to the question of the applicability of Article 6 and merit repetition.

The applicant ’ s sister, Mrs M., was the defendant to civil proceedings brought by her neighbour, Mr F., who claimed that the hanging out of her washing interfered with his property rights. In the proceedings, he sought, inter alia , injunctive relief to restrain the further infringement of his rights. While the proceedings were pending, Mr F. applied for the grant of an interim or interlocutory injunction pending the determination of the merits of the dispute. An interlocutory injunction was granted by the presiding magistrate in the absence of Mrs M. and her lawyer and without her having been given notice of the date of the hearing.

3 . Since no appeal lay in interlocutory proceedings, Mrs M. brought fresh proceedings in the Civil Court (First Hall) complaining of the breach of the audi alteram p a rtem principle in the grant of the interlocutory injunction. On 15 October 1990 the Civil Court upheld her claim, and declared the injunction to be null and void.

4 . Mr F. appealed to the Court of Appeal against the judgment of 15 October 1990. However, before the appeal was heard, the merits of the dispute were determined on 6 March 1992 after an inter partes hearing attended by both parties. The court decided in favour of Mr F. and granted a permanent injunction to restrain Mrs M. from violating his property rights in the manner alleged. It has not been suggested that the determination of the dispute failed to comply with Article 6 and it would not appear that Mrs M. appealed against the court ’ s decision.

5 . Despite the fact that the substantive action had been decided, the appeal against the setting aside of the interim injunction proceeded. The decision of the Court of Appeal upholding Mr F. ’ s appeal which is the

subject of the present complaint under Article 6 was delivered on 15 February 1993. Since Mr F. ’ s action had been resolved in his favour and a permanent injunction granted, the Court of Appeal ’ s decision was without practical effect. Nevertheless, Mrs M. sought to pursue her complaint about the fairness of the interlocutory proceedings by lodging a constitutional complaint before the Civil Court (First Hall) in its constitutional jurisdiction but died before her claim could be determined. The claim, which was taken up by the applicant in his capacity as Mrs M. ’ s brother, was dismissed on 29 January 2004.

6 . As this recital of the facts makes clear, the applicant ’ s complaint relates to the impartiality of the Court of Appeal in ruling on the fairness of the interlocutory proceedings which had led to the grant of an interim injunction.

7 . The Court ’ s case-law on the applicability of Article 6 to interlocutory proceedings relating to interim orders or other provisional measures adopted prior to the determination of the merits of a claim is well-established and is encapsulated in the decision of the Court in the case of APIS a.s. v. Slovakia (dec.), no. 39754/98, 13 January 2000. The applicant company in that case had filed an action with the Bratislava City Court claiming entitlement to 51% of the shares in another limited company. The applicant company at the same time applied for an interim injunction ordering the defendant not to sell the shares at issue pending the outcome of the proceedings. The application was granted by the City Court and its decision was upheld by the Supreme Court. The City Court subsequently dismissed the defendant ’ s request for annulment of the interim measure but, on appeal, the Supreme Court quashed the interim measure without having heard the parties. The Constitutional Court rejected the petition of the applicant company alleging a violation of its right to a fair and public hearing before the Supreme Court, noting that the interlocutory proceedings had not determined the merits of the company ’ s claim.

In declaring inadmissible the applicant company ’ s complaint of a violation of its right under Article 6 to a fair and public hearing in the proceedings leading to the Supreme Court ’ s decision, the Court noted that the alleged violation had occurred in the course of interlocutory proceedings relating to an interim injunction. The Court continued:

“ The decision of the Supreme Court ... was only an interim order and did not involve a decision on the merits of the case, which was at that time dealt with by the Bratislava City Court. In these circumstances the Court finds that the interlocutory proceedings complained of did not involve a “determination” of the applicant company ’ s civil rights or obligations within the meaning of Article 6 § 1 of the Convention ...

It follows that the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.”

The same principle has been re-affirmed and applied in the subsequent cases of Starikow v. Germany (dec.), no. 23395/02, 10 April 2003 (provisional grant of parental authority); Libert v. Belgium (dec.), no. 44734/98, 8 July 2004 (interim stay of execution of a judgment); Dogmoch v. Germany (dec.), no. 26315/03, 18 September 2006, ECHR 2006- (order for the attachment of the applicant ’ s assets); Dassa Foundation and Others v. Li e chtenstein (dec.), no. 696/05, 10 July 2007 (order for seizure of applicants ’ assets); and Saarekallas O ü v. Eston ia , no. 11548/04, 8 November 2007 (prohibition on disposal of applicant company ’ s building).

8 . Only very exceptionally has the Court considered Article 6 to be applicable to proceedings relating to interim orders. In the case of Markass Car Hire Ltd v. Cyprus (dec.), no. 51591/99, 23 October 2001, to which r eference is made in paragraph 38 of the judgment of the Chamber, the Court confirmed its earlier case-law to the effect that Article 6 did not apply to proceedings relating to interim orders but found the case-law to be inapplicable in the particular circumstances of that case. In that case the applicant company, which was the owner of a fleet of vehicles, was the defendant to proceedings in which K. sought damages for breach of contract for the delivery of vehicles. At the same time, K. sought and obtained an interim order requiring the applicant company to hand over a number of vehicles which were still in the applicant ’ s possession at the time. Having noted that the interim decision partly coincided with the main action and that, unless reversed by the Appeal Court within a short time-limit, would affect the legal rights of the parties resulting from the contract, the Court continued as follows:

“In this respect, the Court cannot overlook the drastic character of the interim decision which concerned, as the applicant maintains, almost the whole of the company ’ s fleet of vehicles and disposed to a considerable degree of the relevant civil action against the applicant. The combined effect of the measure and its duration caused irreversible prejudice to the applicant ’ s interest and drained to a substantial extent the final outcome of the proceedings of its significance.

In these circumstances the Court considers that the interim decision in effect partially determined the rights of the parties in relation to the final claim against the applicant ... and thereby acquired the character of a “dispute” over a civil right and obligation to which Article 6 of the Convention was applicable.”

9 . It cannot arguably be said in the present case that the interlocutory injunction granted by the presiding magistrate caused irreversible prejudice to the applicant ’ s interests and I do not understand the majority of the Chamber to suggest that it did. Instead, emphasis is placed in the judgment on the fact that the impugned decision of the Court of Appeal was taken not in the course of the interlocutory injunction proceedings brought by Mr F. but in separate proceedings brought by Mrs M., which involved the determination of the question whether a party had, as a matter of domestic law, a right to be heard. It is said that the Court of Appeal may be regarded as having examined the merits of Mrs M. ’ s application and, in so doing, to have determined the dispute over the right to be heard, a dispute which the applicant could claim at least on arguable grounds was covered by Article 6.

10 . I am unable to accept this conclusion or reasoning. In particular, I find wholly artificial the reliance placed on the fact that the impugned decision of the Court of Appeal was reached in separate proceedings rather than in an appeal from the grant of the interim injunction. Had Maltese law allowed such an interlocutory appeal, and had the Court of Appeal rejected an appeal by Mrs M. based on the fact that she had not been heard when the injunction was granted, the case would have fallen squarely within the Court ’ s constant case-law. The fact that, in the absence of an interlocutory appeal, Mrs M. was required to resort to separate proceedings to have the injunction set aside does not in my view change anything. The proceedings were clearly brought not, as the judgment suggests, for the purpose of establishing that she had a right to be heard under domestic law but for the purpose of setting aside the injunction which had in her submission been granted in breach of that principle. Furthermore, even if as the judgment asserts the procedural requirement of audi altera m partem can be said to be a substantive “right” under domestic law, I do not consider that it could be regarded as a “civil right” for the purpose of Article 6, such that any dispute concerning such right would attract the protection of that Article.

11 . I similarly cannot agree with the view of the majority that the applicant ’ s case is assisted by the Grand Chamber ’ s recent decision in Vilho Es ke linen and Others v. Finland ([GC], no. 63235/00, 19 April 2007, ECHR 2007-). The Court in that case was concerned with the specific problem of the applicability of Article 6 to disputes involving civil servants, which had traditionally been treated by the Court as falling within a special category so far as the right of access to court was concerned. In reversing its decision in the case of Pellegrin v. France ([GC], no. 28541/95, ECHR 1999-VIII) so as to widen the scope of application of Article 6 to include disputes concerning civil servants, the Court noted that it was primarily for Contracting States to identify those areas of public service involving the exercise of the discretionary powers intrinsic to State sovereignty where the interests of the individual to have access to a court must give way. It was in this context that the Court ob served (as noted in paragraph 41 of the current judgment) that if the domestic system barred access to a court, the Court would verify that the dispute was indeed such as to justify the application of the exception to the guarantees of Article 6, but that, if it did not, there was no issue and Article 6 § 1 would apply. This statement of the Court was confined to the case of civil servants and was not intended to overrule or otherwise affect the Court ’ s established case-law as to the applicability of Article 6 in other contexts. This was indeed made clear in the very next sub-paragraph of the Court ’ s judgmen t, where it was emphasised that:

“ ... this situation is distinct from other cases, which due to the claims being made are regarded as falling outside the civil and criminal heads of Article 6 § 1 of the Convention (see, inter alia, for the assessment of tax, Ferrazzini v. Italy ([GC]. no. 44759/98 ECHR 2001–VII); for matters of asylum, nationality and residence in a country, Maaouia v. France ([GC], no. 39652/98, ECHR 2000-X); and for the adjudication of election disputes in respect of members of Parliament, Pierre-Bloch v. France , cited above). The reasoning in this case is therefore limited to the situation of civil servants.”

12. In paragraph 46 of the judgment, the majority of the Chamber emphasise that Article 6 reflects the fundamental principle of the rule of law which underpins the whole Convention system and that the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6 would not correspond to the aim and purpose of that provision. I fully share these sentiments but I am unable to conclude that they are such as to justify the Chamber in departing from well-established case-law so as to find Article 6 to be applicable to what in my view are to be seen as interlocutory proceedings.

13 . My conclusion that the application is incompatible ratione materiae relieves me of the need to consider the difficult issue of the victim status of the applicant, who was not directly concerned with the impugned proceedings and whose only involvement arose at the stage of Mrs M. ’ s constitutional complaint.