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764 15.10.2009   Press release issued by the Registrar   Grand Chamber judgment[1]   Micallef v. Malta (application no. 17056/06)   COURT’S OR JUDGE’S INDEPENDENCE AND IMPARTIALITY ARE INALIENABLE SAFEGUARDS THAT MUST BE GUARANTEED EVEN IN INJUNCTION PROCEEDINGS   Violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights     Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 2,000 euros (EUR) in respect of costs and expenses. (The judgment is available in English and French.)   Principal facts   The applicant, Joseph Micallef, is a Maltese national who lives in Vittoriosa (Malta).   In 1985 his sister, Mrs M., who has since died, was sued in the civil courts by her neighbour in connection with a dispute between them.   The presiding judge of the court hearing the case granted the neighbour an injunction in the absence of Mrs M., who had not been informed of the date of the hearing. In 1992 the court found against Mrs M. on the merits.   In the meantime Mrs M. had brought proceedings in the Civil Court, sitting in its ordinary jurisdiction, alleging that the injunction had been granted in her absence and without giving her the opportunity to testify. In October 1990 the Civil Court found that the injunction had been issued in violation of the adversarial principle and declared it null and void.   In February 1993 the Court of Appeal upheld an appeal lodged by the neighbour and set aside the judgment of the Civil Court in favour of Mrs M. The Court of Appeal was presided over by the Chief Justice, sitting with two other judges. Mrs M. then lodged a constitutional appeal with the Civil Court, in its constitutional jurisdiction, alleging that the Chief Justice had not been impartial given his family ties with the lawyers representing the other party. She pointed out that he was the brother and uncle, respectively, of the lawyers who had represented her neighbour.   The constitutional appeal, which was taken over by the applicant after his sister’s death, was dismissed in January 2004. In October 2005 a further appeal lodged with the Constitutional Court was also dismissed.   Complaints, procedure and composition of the Court   Relying on Article 6 § 1 of the Convention, Mr Micallef complained of the Court of Appeal’s lack of impartiality on account of the family ties between the presiding judge and the lawyer for the other party. He added that this had given rise to an infringement of the principle of equality of arms.   The application was lodged with the European Court of Human Rights on 15 April 2006. In a judgment of 15 January 2008, the Court held, by four votes to three, that there had been a violation of Article 6 § 1 of the Convention on account of the lack of objective impartiality of the Court of Appeal and held that it was not necessary to examine separately the complaint of an alleged infringement of the principle of equality of arms. It also held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by Mr Micallef and awarded him EUR 2,000 for costs and expenses. On 7 July 2008 the case was referred to the Grand Chamber at the Government’s request. On 25 August 2008 the President of the Court gave the Czech Government leave, under Article 36 § 2 (third party intervention) of the Convention and Rule 44 § 2 of the Rules of Court, to intervene as a third party in the procedure before the Chamber. A public hearing was held at the Human Rights Building, Strasbourg, on 22 October 2008.   Judgment was given by the Grand Chamber of 17 judges, composed as follows:   Jean-Paul Costa (France), President, Christos Rozakis (Greece), Françoise Tulkens (Belgium), Giovanni Bonello (Malta), Corneliu Bîrsan (Romania), Karel Jungwiert (the Czech Republic), Anatoly Kovler (Russia) Vladimiro Zagrebelsky (Italy), Elisabet Fura (Sweden), Khanlar Hajiyev (Azerbaijan), Egbert Myjer (the Netherlands), David Thór Björgvinsson (Iceland), Dragoljub Popović (Serbia), Giorgio Malinverni (Switzerland), András Sajó (Hungary), Zdravka Kalaydjieva (Bulgaria), Mihai Poalelungi (Moldova), judges, and also Michael O’Boyle, Deputy Registrar.   Decision of the Court   Admissibility   The Maltese Government and the Third Party Government argued that Mr Micallef did not have victim status allowing him to lodge an application with the Court. In their submission, he might have had the right to pursue an application lodged with the Court by his sister but not to lodge one on his own behalf after his sister had died while the proceedings were still going on at domestic level. The Court found that the applicant did have victim status, firstly because he had been made to bear the costs of the case instituted by his sister and could thus be considered to have a patrimonial interest in the case and, secondly, because the case raised issues concerning the fair administration of justice and thus an important question relating to the general interest.   The Government also submitted that the applicant had not exhausted all domestic remedies as required by Article 35 § 1 of the Convention. The Court pointed out in that connection that at the material time there had been no provision under Maltese law for challenging a judge on the basis of an uncle-nephew relationship with a lawyer representing the other side in a trial. Accordingly, the possibilities available to the applicant to challenge the judge could not be regarded as effective and nothing obliged him to use them before applying to the Court. Moreover, the Court found that, in complaining of a violation of his right to a fair trial before the domestic constitutional courts, which had dismissed the Government’s objection of non-exhaustion of ordinary remedies and examined the substance of the complaint, the applicant had made normal use of the remedies which were accessible to him and which related, in substance, to the facts complained of before the Court.   Lastly, the Maltese Government and the Third Party Government submitted that the guarantees provided by Article 6 § 1 did not apply to proceedings such as these, which concerned interim or provisional measures. In their view, the application was therefore inadmissible on that ground as well.   The Court reiterated that preliminary proceedings, like those concerned with the grant of an interim measure such as an injunction, did not normally fall within the protection of Article 6. The Court observed that there was now a widespread consensus amongst Council of Europe member States regarding the applicability of Article 6 to interim measures, including injunction proceedings. This was also the position adopted in the case-law of the Court of Justice of the European Communities. The Court observed that a judge’s decision on an injunction would often be tantamount to a decision on the merits of the claim for a substantial period of time, or even permanently in exceptional cases. It followed that, frequently, interim and main proceedings decided the same “civil rights or obligations”, within the meaning of Article 6, and produced the same effects. In the circumstances the Court no longer found it justified to automatically characterise injunction proceedings as not determinative of civil rights or obligations. Nor was it convinced that a defect in such proceedings would necessarily be remedied in proceedings on the merits since any prejudice suffered in the meantime might by then have become irreversible.   The Court therefore considered that a change in the case-law was necessary. Article 6 would be applicable if the right at stake in both the main and the injunction proceedings was “civil” within the meaning of Article 6 and the interim measure determined the “civil” right at stake. However, the Court accepted that in exceptional cases it might not be possible to comply with all of the requirements of Article 6, though the independence and impartiality of the tribunal or the judge remained an inalienable safeguard of course.   In the present case the substance of the right at stake in the main proceedings concerned the use by neighbours of property rights in accordance with Maltese law, and therefore a right of a “civil” character according to both domestic law and the Court’s case-law. The purpose of the injunction was to determine the same right as the one being contested in the main proceedings and was immediately enforceable. Article 6 was therefore applicable.   Merits   The Court reiterated that it assessed the impartiality of a court or judge according to a subjective test, which took account of a judge’s conduct, and according to an objective test which, quite apart from the judge’s conduct, sought to determine whether there were ascertainable facts, such as hierarchical or other links between the judge and other actors in the proceedings which might raise doubts as to his impartiality. The Court pointed out that even appearances might be of a certain importance in that regard.   The Court observed that under Maltese law, as it stood at the relevant time, there was no automatic obligation on a judge to withdraw in cases where impartiality could be an issue. Nor could a party to a trial challenge a judge on grounds of a sibling relationship – let alone an uncle-nephew relationship – between the judge and the lawyer representing the other party. Since then Maltese law had been amended and now included sibling relationships as a ground for withdrawal of a judge. In the dispute at issue here the Court took the view that the close family ties between the opposing party’s lawyer and the Chief Justice sufficed to objectively justify fears that the panel of judges lacked impartiality. Accordingly, it concluded, by 11 votes to six, that there had been a violation of Article 6 § 1 of the Convention.     Judges Costa, Jungwiert, Kovler and Fura expressed a joint dissenting opinion. Judges Björgvinsson and Malinverni expressed a partly dissenting opinion and Judges Rozakis, Tulkens and Kalaydjieva expressed a joint concurring opinion. These opinions are annexed to the judgment.     ***   This press release is a document produced by the Registry; the summary it contains does not bind the Court. The judgments are accessible on its Internet site (http://www.echr.coe.int).     Press contacts Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) or Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77) Frédéric Dolt (telephone : 00 33 (0)3 90 21 53 39) Nina Salomon (telephone : 00 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. This judgment was delivered in a public hearing. Grand Chamber judgments are final (Article 44 of the Convention).