European Court finds for Kirkop band club and calls for retrial

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

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

On October 16, 1987, the owners of the property, who were referred to as the "brothers V" in the judgment, instituted civil proceedings against the Housing Secretary and the band club in which they requested 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 "brothers V" 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 ordered that the "brothers V" be reinstated in the possession of the premises within six months. The appeals court sent the case back to the civil court as concerned the allocation of damages.

On March 21, 1994, the band club presented an application for a new trial before the Court of Appeal, alleging 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 requested that the judges of the Court of Appeal abstain from the case as they had presided 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, it 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 composing 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 on July 31, 2000, following an appeal filed by "brothers V", 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 and filed the case San Leonard Band Club vs Malta, 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."

After evaluating the facts surrounding the case and the law and after hearing the submissions made by both parties, the European Court noted that there existed two tests for assessing whether a tribunal was impartial within the meaning of Article 6.

The first consisted in seeking to determine the personal conviction of a particular judge in a given case. This was not being disputed by the parties.

The second method consisted in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in the lack of impartiality.

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.

"In the instant case, the trial judges were called upon to assess and determine whether their own application of the law has been adequate and sufficient.

"These circumstances are sufficient to hold the applicant's fears as to the lack of impartiality of the Court of Appeal to be objectively justified."

The European Court concluded by saying 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 judge in the EU Court of Justice, Dr Anthony Borg Barthet, represented Malta while Dr José Herrera and Dr Edward Zammit Louis represented San Leonard Band Club.