GRAND CHAMBER

CASE OF MICALLEF v. MALTA

(Application no. 17056/06)

JUDGMENT

STRASBOURG 

15 October 2009

In the case of Micallef v. Malta,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Jean-Paul Costa, President,

Christos Rozakis,

Françoise Tulkens,

Giovanni Bonello,

Corneliu Bîrsan,

Karel Jungwiert,

Anatoly Kovler,

Vladimiro Zagrebelsky,

Elisabet Fura,

Khanlar Hajiyev,

Egbert Myjer,

Davíd Thór Björgvinsson,

Dragoljub Popović,

Giorgio Malinverni,

András Sajó,

Zdravka Kalaydjieva,

Mihai Poalelungi, judges,

and Michael O’Boyle, Deputy Registrar,

Having deliberated in private on 22 October 2008 and on 9 September 2009,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case originated in an application (no. 17056/06) against Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Maltese national, Mr Joseph Micallef (“the applicant”), on 15 April 2006.

2. The applicant, who had been granted legal aid, was represented by Dr T. Azzopardi, a lawyer practising in Valetta. The Maltese Government (“the Government”) were represented by their Agent, Dr S. Camilleri, Attorney-General.

3. The applicant alleged that Mrs M. had been denied a fair hearing, in particular because of her lack of opportunity to make submissions before an impartial tribunal, contrary to Article 6 of the Convention.

4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 5 September 2006 a Chamber of that Section, composed of Nicolas Bratza, President, Josep Casadevall, Giovanni Bonello, Matti Pellonpää, Lech Garlicki, Ljiljana Mijović and Ján Šikuta, judges, decided to communicate the complaint concerning the fairness of the appeal proceedings and the alleged lack of impartiality of the Court of Appeal to the Government and declared the rest of the application inadmissible. It also decided to examine the merits of the complaint at the same time as its admissibility, pursuant to Article 29 § 3 of the Convention. On 15 January 2008 a Chamber of that Section, composed of Nicolas Bratza, President, Giovanni Bonello, Kristaq Traja, Lech Garlicki, Ljiljana Mijović, Ján Šikuta and Päivi Hirvelä, judges, by a majority declared the remainder of the application admissible and, by four votes to three, held that there had been a violation of Article 6 of the Convention. A concurring opinion of Judge Bonello and a joint dissenting opinion of Judges Bratza, Traja and Hirvelä were appended to the judgment.

5. On 7 July 2008 a panel of the Grand Chamber granted the Government’s request to refer the case to the Grand Chamber in accordance with Article 43 of the Convention.

6. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.

7. The applicant and the Government each filed observations on the admissibility and merits. In addition, third-party comments were received from the Government of the Czech Republic, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2).

8. A hearing took place in public in the Human Rights Building, Strasbourg, on 22 October 2008 (Rule 59 § 3).

There appeared before the Court:

(a) for the Government
DrS. Camilleri, Attorney-General,Agent,
DrP. Grech, Deputy Attorney-General,Adviser;

(b) for the applicant
DrT. Azzopardi,Counsel.

The Court heard addresses by Dr T. Azzopardi and Dr S. Camilleri, and also their replies to questions put by the Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

9. The applicant was born in 1929 and lives in Vittoriosa.

A. Background of the case

10. The applicant is the brother of Mrs M., who lived in an apartment above Mr F.

11. On 17 July 1985 Mr F. applied for an injunction to restrain Mrs M. from hanging out clothes to dry over the courtyard of his apartment, thereby allegedly interfering with his property rights. Mr F. relied on the provisions of Article 403 of the Maltese Civil Code in this connection.

12. On one occasion following a hearing on the injunction, and after Mrs M. and her lawyer, Dr A., had already left the courtroom, the presiding magistrate changed the date of a future hearing, which had already been fixed. As a consequence, Mrs M. was not aware of the new date and was not present at the hearing. In her absence, on 29 November 1985 the presiding magistrate issued the injunction in favour of Mr F.

13. According to Maltese law as it stood at the time, Mr F. had to institute proceedings in respect of the property claim preserved by the warrant within four days of the issuing of the injunction; otherwise the injunction would cease to have effect. Accordingly, on 5 December 1985, Mr F. lodged a writ of summons to start proceedings.

14. On 6 March 1992 the relevant court trying the merits of Mr F.’s civil action found against Mrs M. and issued a permanent injunction against her. On 24 March 1992, as no appeal had been lodged, the case became final.

B. Proceedings before the Civil Court in its ordinary jurisdiction

15. On 6 December 1985 Mrs M. instituted proceedings before the Civil Court (First Hall) in its ordinary jurisdiction, claiming that the injunction had been issued in her absence and without giving her the opportunity to testify (see paragraph 77 below).

16. By a judgment of 15 October 1990, the Civil Court upheld her claim. It held that the audi alteram partem principle was applicable to the procedure for issuing an injunction. Referring to Article 873 § 2 of the Code of Organisation and Civil Procedure, which stated that an injunction should not be issued unless the court was satisfied that it was necessary in order to preserve any right of the person seeking it (see paragraph 27 below), the Civil Court held that the relevant test was a matter for the court’s discretion. However, if the court found it necessary to hear the parties, they should be duly heard in accordance with the principles of natural justice. In the present case the court held that, through no fault of her own, Mrs M. had been denied her right to be heard and therefore the said warrant was null and void.

C. Proceedings before the Court of Appeal

17. Mr F. appealed against the judgment of 15 October 1990. In the first-instance proceedings Mr F. had been assisted by Dr U., while at the appeal stage he had appointed the latter’s son, Dr C. The Court of Appeal was presided over by the Chief Justice, who sat with two other judges. The Chief Justice was Dr U.’s brother and Dr C.’s uncle.

18. At the appeal hearing of 12 October 1992, the Chief Justice, after asking some questions, alleged that the conduct of Dr A. was unethical, as he had impugned, without justification, the conduct of Mr F’s lawyer. When it was noted that in the first-instance proceedings Mr F. had been represented by the Chief Justice’s brother, the Chief Justice threatened to refer the case to “the competent authorities”. Furthermore, he dictated a note to this effect, which read as follows:

“The court is asking Dr A., who himself is declaring that the date of the hearing at first instance had been changed when he and his client had already left the courtroom, why he insisted that the said change of date occurred consequent to a request by a lawyer. Dr A.’s reply is: ‘I deduce so, as there were two lawyers present: Dr U. and myself.’

... Mrs M.’s lawyer asserts facts and has no problem hypothesising about the behaviour of another lawyer and the judge, after he and his client had walked out of the courtroom.”

19. Dr A. said a few words in his own defence, but no oral submissions regarding the merits of the appeal were heard. The Chief Justice suspended the hearing and went to his chambers. A few minutes later the lawyers of both parties were called into the Chief Justice’s chambers. Explanations were heard and no further action appears to have been taken.

20. By a judgment of 5 February 1993, the Court of Appeal found against Mrs M. and reversed the judgment of the Civil Court. It held that principles of natural justice were not mandatory and could not be invoked in preliminary proceedings that were essentially conditional and of a temporary nature. Moreover, the Court of Appeal did not agree with the issue of fact mentioned in the first-instance judgment, in respect of the change in date leading to Mrs M.’s absence at the hearing. In this respect the judgment repeated in part the note which had been dictated during the hearing – “Mrs M.’s lawyer asserts facts and has no problem hypothesising about the behaviour of another lawyer and the judge, after he and his client had walked out of the courtroom”. The Court of Appeal further ordered the removal from the records of the case of a report which supported Mrs M.’s claim, which had been drawn up by the judicial assistant appointed by the Civil Court.

D. Proceedings before the Civil Court in its constitutional jurisdiction

21. On 25 March 1993 Mrs M. instituted proceedings before the Civil Court (First Hall) in its constitutional jurisdiction. Relying on Article 6 of the Convention, she alleged that the President of the Court of Appeal (the Chief Justice) lacked objective impartiality and that this had been manifest in the incident of 12 October 1992. Observing that the Court of Appeal had denied facts which had already been proved, she further submitted that her right to a fair trial had been violated.

22. Mrs M. died on 20 January 2002, before her constitutional claim could be determined. On 22 May 2002 the applicant intervened in the proceedings before the Civil Court in his capacity as brother of the plaintiff.

23. In a judgment of 29 January 2004, the Civil Court dismissed Mrs M.’s claim as frivolous and vexatious. Although it noted that the plaintiff had failed to request the Chief Justice to withdraw from the case before the pronouncement of the final judgment, it rejected the Government’s plea of non-exhaustion of ordinary remedies and decided to exercise its constitutional jurisdiction. As to the merits, it made a thorough analysis of the notions and rights emanating from Article 6 of the Convention, including equality of arms, but placed particular emphasis on the requirement of impartiality of the Civil Court. However, it was unable to find any link between the incident of 12 October 1992 and the content of the judgment of 5 February 1993. As confirmed by Dr A. himself, the incident had been defused; however, this could not have given Mrs M. or her lawyer any expectation that the Court of Appeal would rule in her favour. Furthermore, the Court of Appeal was composed of two other judges, who had not been involved in the incident, and there had been no doubt that the judgment, which appeared to be well-reasoned, had been delivered by the bench as a whole.

E. Proceedings before the Constitutional Court

24. The applicant appealed to the Constitutional Court.

25. By a judgment of 24 October 2005, the Constitutional Court declared the appeal inadmissible. It reiterated that in accordance with Article 46 § 5 of the Constitution, no appeal lay against a decision dismissing an application as frivolous and vexatious.

II. RELEVANT DOMESTIC LAW AND PRACTICE

26. Article 403 of the Civil Code reads as follows:

“(1) Tenements at a lower level are subject in regard to tenements at a higher level to receive such waters and materials as flow or fall naturally therefrom without the agency of man.

(2) It shall not be lawful for the owner of the lower tenement to do anything which may prevent such flow or fall.

(3) Nor shall it be lawful for the owner of the higher tenement to do anything whereby the easement of the lower tenement is rendered more burdensome.”

27. Article 873 of Title VI, Sub-Title V of the Code of Organisation and Civil Procedure, regarding warrants of prohibitory injunction, reads as follows:

“(1) The object of a warrant of prohibitory injunction is to restrain a person from doing anything whatsoever which might be prejudicial to the person suing out the warrant.

(2) The court shall not issue any such warrant unless it is satisfied that such warrant is necessary in order to preserve any right of the person suing out the warrant, and that prima facie such person appears to possess such right.”

28. Under Maltese law, as it stood at the time of the present case, a judge could be challenged or could abstain from hearing a case if one of the parties was represented by the former’s son or daughter, spouse or ascendant. Nothing prevented a judge from sitting in a case if the representative in issue was his or her brother or nephew. The pertinent Articles of the Code of Organisation and Civil Procedure, in so far as relevant, read as follows:

Article 733

“The judges may not be challenged, nor may they abstain from sitting in any cause brought before the court in which they are appointed to sit, except for any of the reasons hereinafter mentioned.”

Article 734

“(1) A judge may be challenged or abstain from sitting in a cause –

...

(e) if he, or his spouse, is directly or indirectly interested in the event of the suit;

(f) if the advocate or legal procurator pleading before a judge is the son or daughter, spouse or ascendant of the said judge; ...”

29. The relevant Article of the Code of Organisation and Civil Procedure was amended in 2007 to include another ground:

“(g) if the advocate or legal procurator pleading before a judge is the brother or sister of the said judge; ...”

30. Article 39 § 2 of the Maltese Constitution, in so far as relevant, reads as follows:

“Any court or other adjudicating authority prescribed by law for the determination of the existence or the extent of civil rights or obligations shall be independent and impartial; ...”

III. COMPARATIVE AND EUROPEAN UNION LAW AND PRACTICE

A. National systems

31. On the basis of the material available to the Court in respect of the legislation of a relevant number of member States of the Council of Europe, it appears that there is widespread consensus on the applicability of Article 6 safeguards to interim measures, including injunction proceedings. This conclusion is inferred from constitutional texts, codes of civil procedure and domestic case-law. In the majority of States (Albania, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Cyprus, Estonia, France, Germany, Hungary, Ireland, Italy, The Netherlands, Poland, Russia, San Marino, Serbia, Spain, Sweden, Switzerland and the United Kingdom) legislation suggests that Article 6 procedural safeguards (particularly the impartiality requirement) apply to interim and injunction proceedings either because the legislation makes no distinction as to the stage or type of proceedings to which the safeguards apply (such as the Constitutions of Greece, Italy, Spain and Switzerland), or because specific provisions governing interim measures reflect in some way the main safeguards embedded in Article 6 – as, for example, legislation which specifies that provisions governing proceedings on the merits apply mutatis mutandis to injunction proceedings (such as Poland), or will do so, unless otherwise stipulated (such as Germany). The Belgian courts have explicitly dealt with the issue (see the judgments of the Court of Cassation in the cases of Greenpeace Belgium and Global Action in the Interest of Animals, of 14 January 2005) and held that Article 6 of the Convention was in principle applicable to interim proceedings (référé).

B. European Union

32. Article 47 of the Charter of Fundamental Rights of the European Union guarantees the right to a fair trial. Unlike Article 6 of the Convention, the provision of the Charter does not confine this right to disputes relating to “civil rights and obligations” or to “any criminal charge” and does not refer to the “determination” of such. In Bernard Denilauler v. SNC Couchet Frères (ECJ, Case C 125/79, 21 May 1980) the European Court of Justice (“the ECJ”) held that provisional measures given ex parte without hearing the defendant could not be recognised according to its case-law. This implies that such safeguards should apply also outside the context of final decisions.

THE LAW

33. The applicant complained that the Court of Appeal had lacked impartiality and that Mrs M. had consequently been denied the opportunity to make submissions, in breach of her right to a fair hearing as provided for in Article 6 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

34. The Government contested that argument.

I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS

35. The Government contested the admissibility of the application on a number of grounds under Articles 34 and 35 § 1 of the Convention.

Article 34 provides:

“The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. ... ”

Article 35 § 1 states:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

A. Victim status

1. The Chamber’s conclusion

36. The Chamber, which raised the matter of its own motion, noted that Mrs M., the direct victim, died while pursuing domestic remedies, implying that she intended to complain about the alleged breach before the Court. It further noted that after the direct victim’s death the domestic courts did not reject the applicant’s request to intervene in the constitutional proceedings and later to appeal in his capacity as brother of the plaintiff. Moreover, the Court had discretion to recognise the victim status of an applicant and to continue examining an application when it concerned a matter of general interest. The Chamber considered that the impossibility under domestic law to challenge a judge on the basis of his or her relationship with a party’s advocate was a matter of sufficient general interest. Having further observed that the Government had not filed an objection in this respect, the Chamber concluded that the applicant had standing to introduce the present application.

2. The Government’s submissions

37. The Government submitted that the applicant did not have victim status in so far as he was not a party to the proceedings complained of. The only direct victim was his sister, who had died during the domestic constitutional proceedings. The Government argued that it was irrelevant that the applicant was permitted to intervene in the latter proceedings in his sister’s stead. According to Maltese law, this was standard practice based on the civil-law principle of succession whereby an heir succeeds to the legal personality of the deceased, irrespective of the heir’s victim status for the purposes of the Convention.

38. Moreover, the Government contested the Chamber’s interpretation regarding the Court’s discretion to grant victim status on the basis of “sufficient general interest”. This in their view was not in conformity with Article 34 of the Convention and would verge on acceptance of an actio popularis. However, even if this were so, in the present case there was no relevant defect in the law justifying the exercise of the alleged discretion by the Chamber.

3. The applicant’s submissions

39. The applicant first submitted that it was an abuse of proceedings and contrary to the principle of subsidiarity for the Government to raise a novel argument before the Court at this stage of the proceedings. Since they had not contested this matter before the domestic courts or the Chamber, they should be estopped from doing so now.

40. In any case, the applicant submitted that the direct victim had died while pursuing domestic remedies, without which she could not apply to the Court. Indeed, after Mrs M.’s death the national courts had accepted the applicant’s locus standi in constitutional proceedings in accordance with domestic law. Moreover, once the applicant became a party to the domestic proceedings he was made to bear the costs of the constitutional case instituted by his sister and had thus also suffered financial prejudice. According to the applicant, this status once acquired was irreversible.

41. Lastly, the applicant submitted that there was a moral dimension to the application which raised serious questions affecting the interpretation or application of the Convention and a serious issue of general importance. Thus, it could not be said that the general interest criterion referred to by the Chamber did not apply to the present case.

4. The submissions of the third-party Government

42. The Government of the Czech Republic submitted that it was acceptable for the Court to grant locus standi to the applicant’s next of kin where the applicant died during the proceedings before the Court. However, if the direct victim died before lodging the application, victim status should only be recognised exceptionally. This would be so in cases where the alleged violation prevented the direct victim himself from asserting his claims (see Bazorkina v. Russia, no. 69481/01, § 139, 27 July 2006) or where persons aspiring to have victim status, usually the heirs, were themselves affected by what were claimed to be the negative consequences of the alleged violation (see Ressegatti v. Switzerland, no. 17671/02, § 25, 13 July 2006).

43. Moreover, the Court had no discretion to grant victim status on the ground that the complaint related to an issue of general interest. However, it did have discretion under Article 37 § 1 of the Convention to continue the examination of an application even in the absence of a person wishing to complete the battle embarked upon by the deceased applicant. Applying this discretion to proceedings initiated by a next of kin, who did not fulfil the exceptional criteria mentioned above, would amount to allowing the Court to choose of its own motion which applications would be examined.

5. The Court’s assessment

44. In order to be able to lodge a petition in pursuance of Article 34, a person, non-governmental organisation or group of individuals must be able to claim “to be the victim of a violation ... of the rights set forth in the Convention ...”. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008).

45. This criterion is not to be applied in a rigid, mechanical and inflexible way (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003-IX). The Court has acknowledged that human rights cases before it generally also have a moral dimension and persons near to an applicant may thus have a legitimate interest in seeing to it that justice is done even after the applicant’s death. This holds true all the more if the leading issue raised by the case transcends the person and the interests of the applicant and his heirs in that it may affect other persons (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII).

46. The Court has discretion, in particular circumstances, to find that respect for human rights as defined in the Convention and the Protocols thereto requires a continuation of the examination of the case (Article 37 § 1 in fine of the Convention). This discretion is dependent on the existence of an issue of general interest (see Karner, cited above, § 27, and Marie-Louise Loyen and Bruneel v. France, no. 55929/00, § 29, 5 July 2005). The latter may arise in particular where an application concerns the legislation or a legal system or practice of the defendant State (see Altun v. Germany, no. 10308/83, Commission decision of 3 May 1983, Decisions and Reports 36, p. 209, and, mutatis mutandis, Karner, cited above, §§ 26 and 28).

47. The Court normally permits the next of kin to pursue an application provided he or she has sufficient interest, where the original applicant has died after the introduction of the application before the Court (see Malhous, cited above). However, the situation varies where the direct victim dies before bringing his or her complaint before the Court (see Fairfield v. the United Kingdom (dec.), no. 24790/04, ECHR 2005‑VI).

48. The Court interprets the concept of “victim” autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act (see Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000‑XI), even though the Court should have regard to the fact that an applicant had been a party to the domestic proceedings. Regarding complaints under Article 6, the Court has been prepared to recognise the standing of a relative either when the complaints were of a general interest and the applicants, as heirs, had a legitimate interest in pursuing the application (see Marie-Louise Loyen and Bruneel, cited above, § 29, and, conversely, Biç and Others v. Turkey, no. 55955/00, § 23, 2 February 2006) or on the basis of the direct effect on the applicant’s patrimonial rights (see Ressegatti, cited above, § 25).

49. In the present case, the Court notes that the direct victim died during the constitutional proceedings, which lasted over ten years at first instance and were necessary to exhaust domestic remedies. The constitutional jurisdictions did not reject the applicant’s request to intervene in the proceedings in his capacity as brother and heir of the plaintiff, nor did they refuse to entertain his appeal. Furthermore, he was made to bear the costs of the case instituted by his sister and can thus be considered to have a patrimonial interest to recover the costs.

50. Moreover, the Court considers that the question of an alleged defect in the relevant law which made it impossible to challenge a judge on the basis that the lawyer appearing before him was his nephew or that the issue at stake in the case related to the conduct of his brother is a matter which raises issues concerning the fair administration of justice and thus an important question relating to the general interest.

51. In conclusion, the Grand Chamber, like the Chamber, considers that for both of the foregoing reasons, the applicant has standing to introduce the present application. The Government’s objection is thus dismissed.

B. Non-exhaustion of domestic remedies

1. The Chamber’s conclusion

52. The Chamber considered that, according to Maltese law and with reference to the Court of Appeal hearing of 12 October 1992, there was no specific ground on which to challenge the judge on the basis that he was the uncle of one of the advocates appearing before him and consequently Mrs M. could not have asked for the judge’s withdrawal. Moreover, the applicant had brought the complaint before the Civil Court in its constitutional jurisdiction after the incident in question, and the latter had rejected the Government’s objection of failure to exhaust ordinary remedies and dealt with the merits of the case.

2. The parties’ submissions

53. The Government submitted that during the hearing of 12 October 1992 Mrs M. did not complain that she had not been given an opportunity to make submissions, nor did she lodge a request to make further submissions. Similarly, she did not challenge the judge at any stage of the proceedings and during the same proceedings she failed to raise before the relevant courts the issue under Article 6 of the Convention that her right to an impartial tribunal was “likely” to be infringed. Mrs M. never requested that the Chief Justice withdraw from her case, a plea which would not have been decided by the Chief Justice alone, but by the three judges sitting in the case. According to the Government, Mrs M. could have made such a request under Article 734 § 1 (e) of the Code of Organisation and Civil Procedure (see paragraph 28 above) which reflected the nemo iudex in causa propria rule in general. The Government made reference to various domestic decisions in which the courts had repeatedly attributed overriding importance to the fact that justice should not only be done but be seen to be done and that this had been an acknowledged legitimate ground for the withdrawal of or challenge to a judge. However, at the hearing before the Grand Chamber the Government admitted that there had been no domestic case-law proving that a challenge under Article 734 § 1 (e) of the Code of Organisation and Civil Procedure in such a case as the present one would have been successful.

54. The applicant made no submissions on this point.

3. The Court’s assessment

55. In accordance with Article 35 § 1 of the Convention, the Court may only deal with an issue after all domestic remedies have been exhausted. The purpose of this rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits (see Zarb Adami v. Malta (dec.), no. 17209/02, 24 May 2005). However, the rule of exhaustion of domestic remedies requires an applicant to have normal recourse to remedies within the national legal system which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. There is no obligation to have recourse to remedies which are inadequate or ineffective (see Raninen v. Finland, 16 December 1997, § 41, Reports of Judgments and Decisions 1997‑VIII).

56. The Grand Chamber, like the Chamber, considers that the applicant could not have challenged the Chief Justice under Article 734 of the Code of Organisation and Civil Procedure (see paragraph 28 above), since at the time a nephew-uncle relationship between advocate and judge was not among the listed grounds for challenge. Article 734 § 1 (f) specifically referred to certain family relationships (see paragraph 28 above). However, it excluded siblings or other more distant relatives, who would have been mentioned had this been the legislator’s intention. The fact that the law is silent as regards these relationships does not support the argument that they can be assumed to be covered by the relevant legal provision in the absence of specific case-law to this effect. Nor has it been shown by the Government that Article 734 § 1 (e), a more general provision, would have provided the basis for a remedy. Moreover, in this respect, the Government conceded that there had been no domestic case-law showing that a challenge under Article 734 §1 (e), in a case such as the present one, had ever been successful. It follows that in the present case the applicant could not reasonably have been expected to take this course of action.

57. Most importantly, the Court notes that, following the impugned judgment, Mrs M., succeeded by the applicant, instituted constitutional proceedings before the Civil Court (First Hall) alleging a breach of the right to a fair trial as guaranteed by Article 6 of the Convention in view of the Court of Appeal’s lack of impartiality and the lack of opportunity to make submissions before it. The applicant subsequently appealed to the Constitutional Court against the Civil Court’s judgment rejecting his claim. The Court considers that, in raising this plea before the domestic constitutional jurisdictions, which rejected the Government’s objection of non-exhaustion of ordinary remedies and did not reject the claim on procedural grounds but examined the substance of it, the applicant made normal use of the remedies which were accessible to him and which related, in substance, to the facts complained of at the European level (see, mutatis mutandis, Zarb Adami, cited above).

58. The mere fact that the applicant could have attempted to remedy the alleged violation in alternative ways throughout the different stages of the proceedings or that he waited till the end of the proceedings to make such complaint, as was permissible under domestic law, does not alter this conclusion. Under the established case-law, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see, inter alia, Kozacıoğlu v. Turkey [GC], no. 2334/03, § 40, 19 February 2009).

59. It follows that the application cannot be rejected for non-exhaustion of domestic remedies and that the Government’s objection is therefore dismissed.

C. Incompatibility ratione materiae

1. The Chamber’s conclusion

60. Distinguishing between the injunction proceedings arising out of the main action and the proceedings complained of, the Chamber considered the latter as “post-injunction proceedings”, that is, a new and distinct set of proceedings by which the flaws of the interim injunction decision could be contested. Both the Court of First Instance and the Court of Appeal had examined the merits of Mrs M.’s complaint and therefore determined the dispute over “the right to be heard” in the injunction proceedings. Thus, the applicant could claim on at least arguable grounds that the proceedings were covered by Article 6. Moreover, when the applicant eventually complained of the unfairness of these “post-injunction proceedings”, the constitutional jurisdiction looked at the merits of the applicant’s complaint regarding the impartiality of the Court of Appeal and, consequently, recognised the applicability of Article 6 to these proceedings. The Chamber noted that according to the Court’s judgment in Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, § 61, ECHR 2007-II) independently of the Court’s autonomous application of Article 6, its applicability would be recognised by the Court, if the domestic system had recognised it formerly: “if a domestic system bars access to a court, the Court will verify that the dispute is indeed such as to justify the application of the exception to the guarantees of Article 6. If it does not, then there is no issue and Article 6 § 1 will apply.” Furthermore, the concept of a “civil right” under Article 6 § 1 could not be construed as limiting an enforceable right in domestic law within the meaning of Article 53 of the Convention (see Okyay and Others v. Turkey, no. 36220/97, § 68, ECHR 2005‑VII). It followed that Article 6 was applicable to the present case.

2. The Government’s sub