Band club demands enforcement of European Court ruling

The St Leonard Band Club of Kirkop has filed an application in the Constitutional Court requesting the enforcement of a judgment delivered by the European Court of Human Rights in July.

The club claimed that the European Court had ruled that its fundamental human rights had been violated and that consequently the judgment delivered against the club by the Constitutional Court in July 2000 was annulled.

The European Court of Human Rights in Strasbourg ruled that the decision made by three Maltese judges who presided over a Court of Appeal was in breach of the European Convention of Human Rights as it had deprived the band club of an impartial hearing.

The case dated back to December 30, 1986 when the Housing Secretary issued a requisition order on a Kirkop tenement occupied by the St Leonard Band Club.

On October 16, 1987, the owners of the property instituted civil proceedings against the Housing Secretary and the band club asking that the requisition order be declared null and void and that they be reinstated in the possession of the tenement.

They also requested the reimbursement of the damages sustained.

In a judgment handed down on October 9, 1991, the First Hall of the Civil Court rejected the claim made by the owners who then appealed the decision.

Consequently, in a judgment on December 30, 1993, the Court of Appeal declared the requisition order null and void and upheld the owners' claim.

The Appeals Court sent the case back to the Civil Court with regard to the allocation of damages.

On March 21, 1994, the band club filed an application for a new trial before the Court of Appeal, claiming that the December 1993 judgment was based on a misrepresentation of the law as the requisition order had been issued in the public interest and the powers of the Housing Secretary could not be reviewed by the ordinary courts.

The band club also asked that the judges of the Court of Appeal abstain from the case as they had presided over the court that handed down the December 1993 judgment.

But the Court of Appeal turned down the request to abstain and on January 17, 1996 rejected the demand for a new trial.

In the meantime, on April 9, 1995, the band club initiated proceedings in the First Hall of the Civil Court in its constitutional jurisdiction in which it claimed that in refusing to abstain the three judges sitting on the Court of Appeal had violated article 6 of the Convention as it could not be considered an "impartial court".

The court upheld the request and on April 22, 1997 it ruled that the Convention had in fact been breached.

But in a judgment handed down on July 31, 2000, following an appeal filed by the owners, the Constitutional Court revoked the April 1997 judgment.

Then on January 23, 2001, the band club took the case before the European Court of Human Rights, claiming that "the bench of the Court of Appeal which decided on the admissibility of its claim for retrial was not an impartial tribunal within the meaning of article 6 of the Convention".

The European Court noted that in this case the same judges were called upon to decide whether or not they themselves, in the December 1993 judgment, had committed an error of legal interpretation or application in their previous decision.

The European Court ruled that there had been a breach of article 6 and that "the most appropriate form of relief would be to ensure that the applicant is granted in due course a retrial by an independent and impartial tribunal."

The band club is therefore now insisting that, as a result, the judgment of the First Hall of the Civil Court of 1997 in terms of which the court had declared that the band club's fundamental human rights had been violated was to be enforced.

This judgment had ruled that the case had to be remitted to the Court of Appeal to be heard by three judges who had not heard and decided the case previously.

The club further submitted that no appeal from the European Court's judgment had been lodged.

In conclusion, the club asked the Constitutional Court to give effect to the European Court's judgment and to declare that the only judgment that was valid vis-a-vis the club was that delivered by the First Hall of the Civil Court in April 1997.

The Constitutional Court was also requested to remit the case to the Court of Appeal to be heard anew.

Dr Edward Zammit Lewis and Dr José Herrera signed the application.