FIRST SECTION
DECISION
Application no. 2468/20
Rosaria BORG BUSUTTIL
against Malta
The European Court of Human Rights (First Section), sitting on 16 December 2020 as a Committee composed of:
Linos-Alexandre Sicilianos, President,
Erik Wennerström,
Lorraine Schembri Orland, judges
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 7 January 2020,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Rosaria Borg Busuttil, is a Maltese national, who was born in 1967 and lives in Għaxaq. She was represented before the Court by Dr M. Vassallo and Dr S. Zammit, lawyers practising in Birkirkara.The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.Background to the case
3. Following a call for applications, on 23 November 2012, the applicant was promoted from “Enrolled nurse” to “Staff nurse” and started carrying out the relevant duties and being remunerated accordingly.
4. The relevant regulations published in the Government Gazette provided that such a position required a candidate to be in possession of a Certificate of Registration issued from the Council of Nurses and Midwives. It did not specify under which category, but from the evidence given during the below‑mentioned domestic proceedings, it was the category of Staff nurse, since that was the job vacancy being issued.
5. The applicant did not have the relevant qualification when she got promoted, as she had failed the relevant exam.
6. On 9 October 2015 the applicant received a letter from the Public Service Commission (PSC) stating that, since she had not successfully finished her studies, the PSC was considering revoking her promotion. She was given a five-day period to present her defence in writing, which she did on 14 October 2015.
7. On 22 October 2015 the applicant was informed that her employment as staff nurse had been revoked since it had been conditioned on her registration issued from the Council of Nurses and Midwives (as staff nurse and not enrolled nurse), which had not been the case. As a result, the applicant returned to her employment under the position of enrolled nurse with the corresponding remuneration.Constitutional redress proceedings
8. On 6 January 2016 the applicant instituted constitutional redress proceedings complaining about a violation of Article 6 in relation to the method of her demotion by the PSC, in particular the fact that she only had five days to make submissions (and that she had not been heard orally) and requesting the court to reinstate her to her former post.
9. By a judgment of 31 October 2018, the Civil Court (First Hall) ‑ accepting that according to domestic jurisprudence Article 6 applied to the proceedings before the PSC - of its own motion, rejected the applicant’s claim for non-exhaustion of ordinary remedies. The applicant had failed to undertake judicial review proceedings under Article 469A of the Code of Organisation and Civil Procedure (COCP) which allowed specifically a review where there was an allegation that the PSC had acted against the rules of natural justice, and thus the court considered that it would have been an adequate remedy in her case.
10. On appeal by the applicant, by a judgment of 12 July 2019 the Constitutional Court confirmed that decision. It relied in particular on domestic case-law regarding the effectiveness of judicial review proceedings in such cases (Michael Borg vs the Hon. Prime Minister, Constitutional Court judgment of 27 October 2017). It further considered that the fact that such a remedy was no longer available to the applicant, since the time-limit had expired, was of no relevance since the applicant had given no relevant reason why she had failed to undertake that remedy at the relevant time.Relevant domestic law and practiceRelevant law
11. Article 469A of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, provides for judicial review of administrative action and, in so far as relevant, (before the amendments of 23 April 2020) read as follows:
“(1) Saving as is otherwise provided by law, the courts of justice of civil jurisdiction may enquire into the validity of any administrative act or declare such act null, invalid or without effect only in the following cases:
(a) where the administrative act is in violation of the Constitution;
(b) when the administrative act is ultra vires on any of the following grounds:
(i) when such act emanates from a public authority that is not authorised to perform it; or
(ii) when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon; or
(iii) when the administrative act constitutes an abuse of the public authority’s power in that it is done for improper purposes or on the basis of irrelevant considerations; or
(iv) when the administrative act is otherwise contrary to law.
(2) In this article -
"administrative act" includes (tfisser) the issuing by a public authority of any order, licence, permit, warrant, decision, or a refusal to any demand of a claimant, but does not include any measure intended for internal organization or administration within the said authority ...
"public authority" means the Government of Malta, including its Ministries and departments, local authorities and any body corporate established by law.
(4) The provisions of this article shall not apply where the mode of contestation or of obtaining redress, with respect to any particular administrative act before a court or tribunal is provided for in any other law.
(5) In any action brought under this article, it shall be lawful for the plaintiff to include in the demands a request for the payment of damages based on the alleged responsibility of the public authority in tort or quasi tort, arising out of the administrative act.
The said damages shall not be awarded by the court where notwithstanding the annulment of the administrative act the public authority has not acted in bad faith or unreasonably or where the thing requested by the plaintiff could have lawfully and reasonably been refused under any other power.”
12. Article 46 of the Constitution of Malta, in so far as relevant, reads:
“(1) ... any person who alleges that any of the provisions of articles 33 to 45 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him, or such other person as the Civil Court, First Hall, in Malta may appoint at the instance of any person who so alleges, may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress.
(2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of sub‑article (1) of this article, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of the said articles 33 to 45 (inclusive) to the protection of which the person concerned is entitled:
Provided that the Court may, if it considers it desirable so to do, decline to exercise its powers under this sub-article in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.
(4) Any party to proceedings brought in the Civil Court, First Hall, in pursuance of this article shall have a right of appeal to the Constitutional Court.”
13. Similarly, Article 4 of the European Convention Act, Chapter 319 of the Laws of Malta, provides:
“(1) Any person who alleges that any of the Human Rights and Fundamental Freedoms, has been, is being or is likely to be contravened in relation to him, or such other person as the Civil Court, First Hall, in Malta may appoint at the instance of any person who so alleges, may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress.
(2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of sub‑article (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement, of the Human Rights and Fundamental Freedoms to the enjoyment of which the person concerned is entitled:
Provided that the court may, if it considers it desirable so to do, decline to exercise its powers under this sub‑article in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other ordinary law.
(4) Any party to proceedings brought in the Civil Court, First Hall, in pursuance of this article shall have a right of appeal to the Constitutional Court.”Relevant practice
14. Maltese case-law relating to the examination of a case by the constitutional jurisdictions was summarised in the case of Dr Mario Vella vs Joseph Bannister nomine, Constitutional Court judgment of 7 March 1994. These guiding principles were reiterated in several other judgments:
“a. As a general principle, when it is clear that there are available ordinary remedies enabling an applicant to obtain redress for the damage complained of, such ordinary remedies must be undertaken and constitutional proceedings should be instituted only after such ordinary remedies are exhausted or if they were not available.
b. Unless there are grave and serious reasons related to unlawfulness, justice or manifest error, the Constitutional Court will not disturb the exercise of discretion made by the first-instance court, as conferred on it by Article 46(2) of the Constitution.
c. Each case has its own particular circumstances.
d. The fact that an applicant has failed to pursue an available remedy does not mean that the court [of constitutional jurisdiction] must decline to exercise its jurisdiction if that possible remedy could redress the applicant’s complaint only in part.
e. Where an applicant has failed to exhaust an ordinary remedy, if the interference of another person has contributed to this non exhaustion, then it would not be desirable for the court [with constitutional jurisdiction] to refrain from hearing the case.
f. When the first-instance court exercises its discretion and refuses to take cognizance of a case without having examined the relevant subject matter in respect of which that discretion had to be exercised, the court of second instance should put aside that discretion.”
15. In the judgment of the Constitutional Court in the names Philip Spiteri vs Sammy Meilaq nomine of 8 March 1995, reiterated in further judgements, it was further held that:
“When the object of the action is complex – and concerns issues which have a remedy under some other law, and other issues that can only be redressed by the Constitutional Court – the latter action should prevail.”
16. In Olena Tretyak vs Director of Citizenship and Expatriate Affairs, Constitutional Court judgment of 16 January 2006, which concerned complaints in the context of remedies, amongst other principles, the Constitutional Court referred to the existence of another remedy as an actual and objective fact; that the remedy be accessible, just, effective and adequate in addressing the violation complained of; that for a remedy to be effective it need not guarantee a favourable outcome, but it sufficed that it could be pursued in a practical, effective and efficient manner; that the discretion of the Constitutional Court in this respect must be carried out justly and in the best interest of the administration of justice in order to, on the one hand, avoid the constitutional jurisdictions being burdened by cases which could or should have been dealt with by other competent courts or through other effective remedies, and on the other hand to ensure that a person is not denied the remedies available under the Constitution or the Convention. It considered that the fact that a remedy is not pursued is not sufficient for the constitutional jurisdictions to refuse to take cognisance of a case, if it is shown that the remedy referred to was not effective to give full redress; however, when it is clear that there exists an available ordinary remedy, that must be pursued before seeking constitutional redress.
17. In practice, various situations occur before the constitutional jurisdictions, some examples of these situations are listed below:
18. Emanuel Ciantar vs Commissioner of Police, Constitutional Court judgment of 2 November 2001, which concerned the seizure of a car and its duration, in relation to which the plaintiff invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. The Constitutional Court confirmed a first-instance judgment to the effect that ordinary remedies had to be pursued before instituting constitutional redress proceedings. In particular it considered that the actions of the Executive Police could be reviewed before the ordinary courts in an action for judicial review (469A of the COCP), thus there was no reason for the court to exercise its constitutional jurisdiction.
19. In particular the Constitutional Court agreed with the first-instance court that the fact that Article 469A of the COCP provided that the courts of ordinary jurisdiction have the competence to look into administrative action except where redress “is provided for in any other law” did not mean that when a matter could be examined under both the civil as well as the constitutional jurisdiction, then the latter should be favoured. It merely meant that the court of civil jurisdiction only has competence unless the law removes such competence, and the rule remains that where the civil court can give appropriate and sufficient redress, there is no need to seek extraordinary procedures such as those of a constitutional nature. It further held that the principle had always been that the constitutional and civil competencies also had to remain separate even because they had different procedural rules and lead to remedies which were not necessarily the same. As held in other local judgments, the remedy under Article 469A of the COCP was, in certain aspects, more limited, while the Constitutional Court had no limit in its choice of redress. It specified that where ordinary law provided for a remedy in case of a breach – as was the case with Article 469A of the COCP – an individual had to undertake the ordinary remedy before seeking redress before the Constitutional Court. In an obiter, having considered that the plaintiff in the case was relying on the Convention and not the Constitution, it noted that jurisprudence favoured the interpretation which was dependent on the effectiveness of a remedy, namely that the constitutional remedy was to be used when a relevant remedy could not be provided under Article 469A of the COCP.
20. Christopher Hall vs Director Social Accommodation, Constitutional Court judgment of 18 September 2009, which concerned a complaint under Article 1 of Protocol No. 1 to the Convention in relation to a requisition order and the disproportionate burden suffered by the owner as a result of the laws in place. The Constitutional Court rejected the defendants’ objection of non‑exhaustion of ordinary remedies (including that of judicial review of the decision to requisition the property) on the basis that the plaintiff had been contesting the law, not only a specific matter, and judicial review proceedings could not therefore offer the appropriate redress. Thus, it decided to exercise its jurisdiction and hear the merits of the case. It considered that Article 469A(1)(a) of the COCP could not be used when an individual was claiming a breach of fundamental rights as protected by the Constitution, in which case the adequate remedy was one of a constitutional jurisdiction, and therefore such objections should be rejected outrightly, and surely not raised ex officio by the courts of constitutional competence.
21. Grace Sacco vs Medical Superintendant of Gozo’s General Hospital, judgment of 12 November 2010 of the Court of Magistrates, Superior Jurisdiction, (Gozo). The plaintiff instituted judicial review proceedings complaining of a breach of the principles of natural justice in the procedure undertaken by the PSC with which she (a nurse) had been dismissed. The proceedings were unsuccessful “without prejudice to any other right of the plaintiff”, the Court of Magistrates having considered that the plaintiff had sued the wrong defendants.
22. Grace Sacco vs Medical Superintendant of Gozo’s General Hospital et, Constitutional Court judgment of 17 September 2013. The case before the constitutional jurisdictions concerned the alleged breach of the principles of natural justice in the procedure by the PSC with which the plaintiff (a nurse) had been dismissed. A copy of the judicial review proceedings undertaken (see preceding paragraph) was added to the file of the constitutional case. In its first-instance judgment of 25 May 2012 the court of constitutional competence, reiterated relevant case-law to the effect that if the PSC acted contrary to fundamental human rights the ordinary court can intervene and redress the situation (tista’ tintervjeni u tagħti r‑rimedju opportun) and that if at the administrative level the PSC acted in breach of the principles of natural justice the ordinary courts can and should intervene (jistgħu u għandhom jintervjenu). Nevertheless, in the absence of any objection it then proceeded to examine the merits and uphold the plaintiff’s claims. Similarly, the Constitutional Court, on appeal by the defendants (in which no non-exhaustion plea was raised), confirming the first‑instance judgment, made no explicit reference to the judicial review proceedings and did not reject the complaints for non‑exhaustion of ordinary remedies (the applicant having pursued judicial review proceedings against the wrong defendants) of its own motion. It took cognisance of the merits of the case and found in favour of the plaintiff.
23. Carmelo sive Lino Farrugia Sacco vs the Hon. Prime Minister and others, Constitutional Court judgment of 20 May 2015, concerned a complaint under Article 6 of the Convention that the applicant had not had a fair hearing before the Commission for the Administration of Justice, and a claim that the Maltese Code of Ethics for Judges was in breach of Article 11 of the Convention. The Constitutional Court found that the case before it was complex and included both issues of ordinary law and constitutional law, thus it could not be said that ordinary remedies would have offered the required effectiveness, accessibility and certainty. It therefore decided to exercise its jurisdiction and hear the merits of the case.
24. Michael Borg vs the Hon. Prime Minister, Constitutional Court judgment of 27 October 2017, concerned a complaint that the plaintiff (a senior foreman in a state hospital) had not had a fair procedure before the PSC (concerning his failure to be selected for a post he applied for) and that the PSC procedure had been in breach of the principles of natural justice, in particular that of audi alteram partem. The Constitutional Court confirmed a first-instance judgment of 15 November 2016 finding that the plaintiff had not exhausted ordinary remedies available to him, which were effective, namely, judicial review proceedings under Article 469A of the COCP which, as domestic case-law had confirmed, enabled those ordinary courts to enquire into the actions of the PSC.
25. In particular the Constitutional Court, citing George Scerri vs the Environment and Planning Authority, judgment of the Civil Court (First Hall) of 1 February 2001, reiterated:
“When, as in this case, a plea is raised that the claimant had not made use of an available ordinary remedy before undertaking constitutional proceedings, the criteria for the court to decide not to exercise its jurisdiction have been repeatedly set out by the courts. The Constitutional Court will therefore limit itself to referring to the first‑instance judgment of Olena Tretyak vs Director of Citizenship and Expatriate Affairs, of 30 June 2005, confirmed by the Constitutional Court on 16 January 2006. Those principles are still valid as shown by recent case-law.
When there is a reference to another appropriate remedy, it must be shown that the remedy is accessible, appropriate, affective and adequate to address the breach complained of. It need not guarantee success, it suffices that it could be pursued in a practical way and is effective. It is for the defendant to prove that there is (or was) an effective remedy, in order to convince the court not to exercise its jurisdiction.
It is a fact that even if the defendant may have had available an ordinary remedy, the constitutional jurisdiction may still apply its discretion and take cognisance of the case. The existence of an ordinary remedy does not tie the hands of the constitutional jurisdiction forcing it to decline its jurisdiction. The discretion applied must be prudent and in the interests of the administration of justice. Normally this discretion is applied when the plaintiff really has access to another remedy which, if pursued appropriately, can protect the right claimed to have been breached (jista’ jagħtih il‑ħarsien tal-jedd li f’kawża bħal din jgħid li qiegħed iġarrab ksur tiegħu).”
The Constitutional Court citing Emanuel Ciantar vs Commissioner of Police, Constitutional Court judgment of 2 November 2001, reiterated that:
“.. the jurisprudence of the [Constitutional] Court.. favours the interpretation based on the effectiveness of a remedy, in the sense that the constitutional remedy must be accessible in those cases where an effective remedy for the breach complained of cannot be achieved by means of the procedure under Article 469A [of the COCP]”
Noting that the plaintiff was complaining of a breach of his right to a fair trial protected by the Convention and the Constitution, in the processing of his claim before the PCS, the Constitutional Court continued as follows:
“The first-instance court was right where it held that the PSC was not free from the scrutiny of the ordinary courts as the latter can and should intervene when there are allegations that on an administrative level the PSC acted in breach of the principles of natural justice or acted ultra vires.
The first-instance court was also right to refer to the case of David Gatt vs The Prime Minister, Constitutional Court judgment of 6 September 2010, which held that the ordinary courts in judicial review proceedings under Article 469A of the COCP had no jurisdiction to examine alleged breaches of fundamental rights under the Constitution or the Convention. However, this was not the situation in the instant case, given that the plaintiff limited her complaint to one sole aspect of one fundamental right, namely a breach of the principle of audi alteram partem, which was only one of the facets of a fair trial. ...
Further, the principle of audi alteram partem was one of the principles of natural justice as specifically provided in Article 469A of the COCP.
... Thus, there was no further complaint which the ordinary court in judicial review proceedings could not deal with, and in fact the plaintiff had not claimed that such a remedy would not be effective in his case.
... Judicial review proceedings under Article 469A(1)(b)(ii) could have effectively remedied the complaints of the plaintiff which fell to be considered, fully and exclusively, as complaints about a breach of the principles of natural justice”
26. Micallef vs Attorney General and Bank of Valletta p.l.c., Civil Court (First Hall), in its constitutional competence, judgment of 14 March 2018, concerned violations of Article 1 of Protocol No. 1 to the Convention and Article 6 § 2 of the Convention, concerning a freezing order and a judicial sale by auction of the plaintiff’s property. The court rejected the defendants’ objection of non-exhaustion of ordinary remedies relying on the findings of this court in Brincat and Others v. Malta (nos. 60908/11 and 4 others, 24 July 2014), which were reiterated in a number of local cases concerning asbestos exposure and complaints concerning Articles 2, 3 and 8 of the Convention. It thus considered that such objections should no longer be raised. It went on to exercise its jurisdiction and heard the merits of the case finding against the defendant. On appeal, solely by the defendant, by a judgment of 28 June 2019, the Constitutional Court examined the merits of the case, on the basis of the defendant’s appeal, and confirmed the first‑instance judgment.
27. Racquela Spiteri et vs Director of Koradin’s Corrective Facility, Civil Court (First Hall), in its constitutional competence, judgment of 29 May 2018 (final), concerned violations of Articles 3, 8 and 13 of transgender individuals in prison. That court rejected the defendants objection of non‑exhaustion of ordinary remedies relying on the findings of this court in Brincat and Others, cited above, which had been reiterated in local case‑law such as George Spiteri et vs Malta Shipyards Policy Manager, Constitutional Court judgment of 27 March 2015, and Lawrence Grech vs The Government’s Principal Doctor, Constitutional Court, judgment of 29 May 2015 [which like the case of Brincat had also concerned complaints under Articles 2 and 3 of the Convention regarding asbestos exposure and the relevant compensation]. It held, inter alia, that the practice of examining whether a plaintiff had undertaken ordinary remedies had changed after the judgment in Brincat. It thus considered that the filing of a single procedure (of a constitutional nature) as opposed to two procedures (an ordinary one, followed by a constitutional one) would serve the principle of the economy of judgments given that constitutional proceedings could grant an applicant the “full range of redress”. Furthermore, it held that it was no longer desirable that the constitutional jurisdictions refuse to exercise their powers as provided for in Article 46(2) of the Constitution and Article 4(2) of Chapter 319 of the Laws of Malta irrespective of the remedies that the plaintiffs undoubtedly had at their disposal. It thus exercised its jurisdiction and heard the merits of the case.
COMPLAINTS
28. The applicant complains under Article 6 of the Convention that in the proceedings before the PSC she had only been given five days to file a reply, contrary to the principle of equality of arms. She further complains that the decisions of the constitutional jurisdictions rejecting her claim for non‑exhaustion of ordinary remedies breached the principle of legal certainty as they had been in conflict with other decisions of such courts which had not made such findings and thus had not declined to exercise their jurisdiction.
THE LAW
29. Article 6 § 1 of the Convention reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”Article 6 § 1 (legal certainty)The applicant’s submissions
30. The applicant contends that the decisions taken by the domestic courts of constitutional competence, at first and second instance in her case, with regard to the interpretation and application of the discretion to decline from exercising their jurisdiction, as provided in the law, contradict and are diametrically opposed to precedent local and ECHR case‑law, and that this lack of uniformity undermines the principle of legal certainty.
31. The applicant considers that by declining to exercise their jurisdiction and thus failing to take cognisance of the merits of her case she was unable to make use of the mechanism foreseen under domestic law for ensuring a consistent practice even within the highest court of the country. She relied, in particular, on the case of Grace Sacco vs Medical Superintendant of Gozo’s General Hospital et, Constitutional Court judgment of 17 September 2013, where the Constitutional Court, confirming the first-instance judgment, considered the merits of the case ‑ which concerned a claim of unfair hearing before the PSC – without raising the lack of exhaustion of ordinary remedies of its own motion (see paragraph 22 above).
32. She further relies on Emanuel Ciantar vs Commissioner of Police, Constitutional Court judgment of 2 November 2001 (see paragraphs 18‑19), wherein that court had considered that Article 469A(l)(a) of the COCP cannot integrate a human rights action and that as regards human rights, the cardinal principle was that there shall be a clear distinction between the constitutional and civil jurisdiction and competence of the courts. It had further noted that the remedy under Article 469A of the COCP was to an extent limited whilst the remedies that may be granted by a Constitutional Court knew no boundaries and thus could provide the plaintiff with an effective remedy. The applicant also relies on Christopher Hall vs Director Social Accommodation, Racquela Spiteri et vs Director of Koradin’s Corrective Facility, Civil Court (First Hall) judgment of 29 May 2018 (final), and Micallef vs Attorney General and Bank of Valetta p.l.c.. Constitutional Court judgment of 14 March 2018 (see paragraphs 20, 26 and 27 above).General principles
33. The Court refers at the outset to its judgment in the case of Nejdet Şahin and Perihan Şahin v. Turkey ([GC], no. 13279/05, §§ 49-58 and 61, 20 October 2011), in which it set out the principles applicable to cases concerning conflicting decisions in the case-law, confirmed in Lupeni Greek Catholic Parish and Others v. Romania ([GC], no. 76943/11, § 116, 29 November 2016). These principles, which pertain to Article 6 § 1 of the Convention, may be summarised as follows:
(a) In this type of case, the Court’s assessment has always been based on the principle of legal certainty which is implicit in all the Articles of the Convention and constitutes one of the fundamental aspects of the rule of law (see Nejdet Sahin and Perihan Sahin, cited above, § 56). This principle guarantees a certain stability in legal situations and contributes to public confidence in the courts. The persistence of conflicting court decisions can create a state of legal uncertainty likely to reduce public confidence in the judicial system, whereas such confidence is clearly one of the essential components of a State based on the rule of law (see Hayati Çelebi and Others v. Turkey, no. 582/05, § 52, 9 February 2016, and Ferreira Santos Pardal v. Portugal, no. 30123/10, § 42, 30 July 2015).
(b) However, the possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may also arise within the same court. That, in itself, cannot be considered contrary to the Convention (see Nejdet Sahin and Perihan Sahin, cited above, § 51, and Albu and Others v. Romania, nos. 34796/09 and sixty-three other applications, § 34, 10 May 2012).
(c) The requirements of legal certainty and the protection of the legitimate confidence of the public do not confer an acquired right to consistency of case-law. Case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement (see Nejdet Sahin and Perihan Sahin, cited above, § 58, and Albu and Others, cited above, § 34).
(d) It is not in principle the Court’s function to compare different decisions of national courts, even if given in apparently similar proceedings; it must respect the independence of those courts. Equally, giving two disputes different treatment cannot be considered to give rise to conflicting case-law when this is justified by a difference in the factual situations at issue (see Hayati Çelebi and Others, cited above, § 52, and Ferreira Santos Pardal, cited above, § 42).
(e) The criteria which guide the Court in its assessment of the circumstances in which contradictory decisions by different domestic courts ruling at final instance entail a violation of the right to a fair hearing, enshrined in Article 6 § 1 of the Convention, consist in establishing, firstly, whether “profound and long-standing differences” exist in the case-law of the domestic courts; secondly, whether the domestic law provides for a mechanism for overcoming these inconsistencies; and, thirdly, whether that mechanism has been applied and, if appropriate, to what effect (see Nejdet Sahin and Perihan Sahin, cited above, § 53; Hayati Çelebi and Others, cited above, § 52; and Ferreira Santos Pardal, cited above, § 42).
34. These principles are equally applicable in relation to disparities existing primarily in the case-law of the highest domestic court (see Lupeni Greek Catholic Parish and Others, cited above, § 117 and the case‑law cited therein, as well as Sine Tsaggarakis A.E.E. v. Greece, no. 17257/13, §§ 49 et seq., 23 May 2019).The Court’s assessment
35. Primarily, the Court reiterates that, proceedings come within the scope of Article 6 even if they are conducted before a Constitutional Court, where their outcome is decisive for civil rights and obligations (see Süßmann v. Germany, 16 September 1996, § 41, Reports 1996‑IV and Meimanis v. Latvia, no. 70597/11, § 42, 21 July 2015). The Court will assume that this was so in the present case (see paragraph 44 below).
36. Turning to the complaint in the present case, which concerns an alleged divergence of practice resulting from the judgments of the constitutional jurisdictions, the Court notes that what is relevant for the purposes of this complaint are the judgments of the Constitutional Court, the highest court of the country.
37. The applicant’s case concerns the decision of the Constitutional Court (confirming a first-instance judgment) to refuse to exercise its jurisdiction, having considered that the applicant – whose only complaint was that her right to defend herself, protected by, inter alia, Article 6 of the Convention, had been breached before the PSC – should have availed herself of an available and effective remedy, namely, judicial review proceedings under Article 469A of the COCP.
38. At this juncture the Court finds it opportune to emphasize that there is a difference between effective ordinary remedies which can prevent the occurrence of a violation (as in this case) and effective ordinary remedies which can only redress an alleged violation which has already occurred and can no longer be prevented (see, for example, Brincat and Others, cited above, §§ 62-69). Failure to undertake remedies of the former category (i.e. pre‑emptive remedies) may render a Convention complaint premature and have an impact on the applicant’s victim’s status (see, for example, Muscat v. Malta (dec.), no. 69119/10, 6 September 2011; Dimech v. Malta, no. 34373/13, § 45-48, 2 April 2015, Desira and Eltarhuni v. Malta, (dec.), no. 30623/13, §§ 36-39, 6 December 2016, and Magri v. Malta, (dec.), no. 22515/16, §§ 45-49, 2 May 2017). Further, according to the Court’s case‑law, even where an adjudicatory body determining disputes over “civil rights and obligations” does not comply with Article 6 § 1 in some respect, no violation of the Convention can be found if the proceedings before that body are “subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 § 1” (see Denisov v. Ukraine [GC], no. 76639/11, § 65, 25 September 2018 and the case‑law cited therein, and Grace Gatt v. Malta, no. 46466/16, § 79, 8 October 2019).
39. The Court observes that the applicant’s case is one where the alleged violation occurred at a preliminary stage of proceedings and could still be cured or avoided, within the ordinary course of procedures (as would be the case with situations arising in ordinary first-instance proceedings which are still subject to appeal). It is therefore these circumstances which constitute a comparator for the present case.
40. It follows that the local cases relied on by the applicant (see paragraph 32 in fine above), which deal with different situations as well as more complex Conventional or Constitutional complaints about violations which have already been suffered, as well as with different remedies available in different circumstances, are of no relevance to the applicant’s situation. Indeed the great majority of the cases referred to by the applicant either did not concern the same factual circumstances or the same issues as in her case (see paragraph 32 in fine above with reference to paragraphs 20, 26 and 27 above) or, contrary to what she submitted, supported, in general terms, the domestic courts’ conclusions in her case (see paragraph 32 in primis above with reference to paragraphs 18-19).
41. The only case brought to the Court’s attention by the applicant (see paragraph 31 above) which is a relevant comparator is that of Grace Sacco vs Medical Superintendant of Gozo’s General Hospital et, Constitutional Court judgment of 17 September 2013. That case also concerned a complaint about a breach of Article 6 in the preliminary procedure before the PSC which concerned a nurse’s dismissal. The Court notes that while it is true that in that case the Constitutional Court opted to exercise its jurisdiction, without raising the question of exhaustion of ordinary remedies of its own motion, it cannot be ignored that in that case the plaintiff had indeed already pursued judicial review proceedings under Article 469A of the COCP (see paragraph 21 above). Admittedly, she had done so inappropriately as she had sued the wrong defendant, thus at the constitutional level it was open to the court to reject her case for non‑exhaustion of ordinary remedies – a course of action which, applying their discretion, the constitutional jurisdictions opted not to take. Thus, it can be accepted that, in principle, that decision is in contrast with the one taken in the applicant’s case (which is in line with other such cases, see, for example, paragraphs 24 and 25 above). Be that as it may, the Court considers that one such decision is not sufficient to consider that there were profound and long-standing differences which required a mechanism for overcoming these inconsistencies (compare, Emel Boyraz v. Turkey, no. 61960/08, § 73, 2 December 2014; Vrbanić v. Croatia, (Committee dec.), no. 5917/16, 25 September 2018; Šimunić v Croatia (Committee dec.), no. 20373/17, § 24, 22 January 2019 and Piotriowski v. Poland (Committee dec.), no. 56553/15, § 36, 12 February 2019).
42. These considerations are sufficient for the Court to conclude that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.Article 6 (fair trial)
43. The applicant complains under Article 6 of the Convention that in the proceedings before the PSC she had only been given five days to file a reply, contrary to the principle of equality of arms.
44. For the purposes of the present case the Court is ready to proceed on the basis that the applicant can be said to have a civil right at law (see Regner v. the Czech Republic [GC], no. 35289/11, §§ 105 et seq., 19 September 2017 and Dzhidzheva-Trendafilova v. Bulgaria (dec.), no. 12628/09 § 50, 9 October 2012) and that, since the Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007‑II) test has not been met (in particular, the applicant having had access to judicial review proceedings) Article 6 in its civil head is applicable to the procedure regarding the applicant’s demotion.
45. However, the Court notes that the applicant did not undertake judicial review proceedings, which would have enabled the decision of the PSC to be quashed, allowing her a novel procedure where she would be able to benefit from her Article 6 rights and thus preventing any violation. Indeed for such reasons the constitutional jurisdictions declared her complaint inadmissible for non‑exhaustion of ordinary remedies.
46. In this connection the Court reiterates that in carrying out the examination of whether the applicant had a fair and adversarial hearing (including equality of arms) the Court would have regard to the proceedings considered as a whole (see Regner, cited above, § 151). However, the applicant fell short of completing the process of the determination of her civil rights, limiting herself to the pre-judicial phase which for the purposes of the Convention (unlike domestic practice) would dubiously qualify as a tribunal in itself for the purposes of Article 6 (see Sultana v. Malta (dec.) no. 970/04, 11 December 2007; and I.T.C. Ltd v. Malta (dec.) no. 2629/06, 11 December 2007; and compare and contrast, Grace Gatt, cited above, §§ 61, 86 and 90, in the light of the Government’s submissions in the specific circumstances of that case, and the resulting conclusions).
47. It follows that the applicants’ complaint is inadmissible for non‑exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 21 January 2021.
Renata DegenerLinos-Alexandre Sicilianos
Deputy RegistrarPresident
Full & Egal Universal Law Academy