Case of European Court of Human Rights, October 15, 2009 (case Micallef v. Malta [GC])
|Resolution Date:||October 15, 2009|
Preliminary objections dismissed (victim non-exhaustion of domestic remedies ratione materiae) Violation of Art. 6-1 Non-pecuniary damage - finding of violation sufficient
Information Note on the Court’s case-law No. 123
Micallef v. Malta [GC] - 17056/06
Judgment 15.10.2009 [GC]
Application introduced on behalf of applicant’s sister, who had died while her constitutional claim concerning the alleged breach of her right to a fair trial was pending: victim status upheld
Civil rights and obligations
Injunction proceedings: Article 6 applicable
Lack of statutory right to challenge a judge on the basis of his/her family ties with a party’s advocate: violation
Facts – The applicant’s sister was an unsuccessful party to civil litigation which was decided on the merits in 1992. In 1985 an injunction was issued against her, following which her neighbour brought a substantive action. She challenged the injunction before the court, which declared it null and void, finding that it had been issued in breach of the adversarial principle. That judgment was set aside on appeal. In 1993 the applicant’s sister instituted constitutional proceedings, alleging that the president of the court of appeal had lacked objective impartiality by reason of his family ties with the other party’s lawyer. In 2002, after his sister’s death, the applicant intervened in the proceedings. In 2005 the constitutional claim was dismissed. In 2006 the applicant lodged an application with the European Court. In a judgment of 15 January 2008 (see Information Note no. 104), a Chamber of 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.
Law – (a) Preliminary objections: The respondent Government contested the admissibility of the application on three grounds: firstly, that the applicant did not have victim status as he had not been a party to the proceedings; secondly, that the applicant had not exhausted domestic remedies; and, thirdly, that Article 6 was not applicable to injunction proceedings.
(i) Victim status –The direct victim had died during the constitutional proceedings, which had lasted over ten years at first instance and were necessary to exhaust domestic remedies. Theconstitutional jurisdictions had not rejected the applicant’s request to intervene in the proceedings in his capacity as brother and heir of the plaintiff, nor had they refused to entertain his appeal. Furthermore, he had been made to bear the costs of the case...
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