CASE OF AJD TUNA LTD. v. MALTA

FOURTH SECTION

CASE OF AJD TUNA LTD. v. MALTA

(Application no. 11314/23)

JUDGMENT
 

STRASBOURG

11 February 2025

This judgment is final but it may be subject to editorial revision.

In the case of AJD Tuna Ltd. v. Malta,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

 Anne Louise Bormann, President,
 Sebastian Răduleţu,
 András Jakab, judges,
and Simeon Petrovski, Deputy Section Registrar,

Having regard to:

the application (no. 11314/23) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 8 March 2023 by a Maltese company, AJD Tuna Ltd. (“the applicant company”), registered in 2000, in St Paul’s Bay. It was represented by Dr S. Grech and Dr J. Refalo, lawyers practising in Valletta;

the decision to give notice of the complaint under Article 6 § 1 of the Convention (access to court) to the Maltese Government (“the Government”), represented by their Agents Dr C. Soler, State Advocate and Dr A. Falzon, Senior Advocate at the Office of the State Advocate, and to declare inadmissible the remainder of the application;

the parties’ observations;

Considering that Ms Lorraine Schembri Orland, judge elected in respect of Malta, withdrew from sitting in the case (Rule 28 § 3 of the Rules of Court);

Having deliberated in private on 21 January 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns a complaint under Article 6 § 1 of the Convention (access to court) in relation to an alleged restrictive application of the domestic law by the Court of Appeal which dismissed the applicant company’s appeal.

2.  The applicant company lodged proceedings against the Director for Agriculture concerning the use of the quota on bluefin tuna fishing, and requested damages suffered. On 30 July 2015 the ordinary court found against the applicant company. The latter appealed on 19 August 2015.

3.  On 19 June 2020, the notice to pay the security for costs as well as the notice of the first appeal hearing, which was to be held on 30 June 2020, was served on an employee of a sister company. According to the law at the time (Article 249 of the Code of Organisation and Civil Procedure, ‘COCP’) the deposit for the security for costs was to be paid “within twelve months from the date of the notification of the amount to be deposited, or if the appeal is to be heard earlier ..., not later than two days before the date set for the hearing”. The applicant company’s director only became aware of the content of the notification late on Friday 26 June 2020 at which point he contacted his lawyer to effect payment. However, given that the court registry was closed on the weekend and Monday 29 June 2020 was a public holiday, the applicant company was unable to pay the deposit prior to the day of the appeal hearing. On the day of the hearing the applicant company, present in court through its director, informed the Court of Appeal that it could pay the deposit on the spot. Nevertheless, applying Article 249 of the COCP, the Court of Appeal declared the appeal abandoned noting that although the applicant company had been notified, it failed to pay security for costs.

4.  A further request for reconsideration was also dismissed by the Court of Appeal on 24 August 2020. The applicant company had argued that the notices had not been served unto one of its employees but rather unto an employee of a company of the same economic group, at a time when the company was busy, explaining that by the time it reached the directors they erroneously thought it related to another case which had only been filed a few days prior, having the same parties, and while they informed their lawyer as soon as they took note of it, it had already been too late to make payment. However, the Court of Appeal considered that none of the two exceptions provided by the law applied in the present case. The service of the notice had been made at the address indicated by the appellant company and it had been carried out more than ten days before the first hearing took place. The directors had in fact received the notices, but were both too busy to tend to it in time and ultimately thought it pertained to another case filed, thus the non‑fulfilment of the obligation was attributable to none other than the applicant company’s lack of good management and negligence. The mere fact that it had taken five years to appoint the hearing had no bearing on its responsibility to pay the security in due time, and any repercussion on its fair trial rights was a result of its own fault. Moreover, its request for reconsideration had not been the appropriate way to challenge that final decision.

5.  The applicant company instituted constitutional redress proceedings complaining, inter alia, under Article 6 of the Convention about the circumstances leading to the dismissal of its appeal, including the five-year wait for its appointment, which eventually deprived it of access to court. It brought to the attention of the courts of constitutional competence various examples of when exceptions to the procedural rules concerning the deadline to pay security for costs had been made, including on the same day of its own hearing.

6.  By an appeal judgment of 10 November 2022, the Constitutional Court confirmed a violation of Article 6 § 1 in relation to the length of proceedings (awarding EUR 3,000 in non-pecuniary damage), but no violation of Article 6 § 1 regarding access to court. It considered that although it was unfortunate that the notice to pay the security for costs had been sent out so close to the hearing date, especially given that five years had passed since the appeal had been lodged, it was nonetheless the applicant company’s fault that its director had not taken proper cognisance of the content of the notification any earlier; thus, unlike other cases, there had been no justification to apply an exception. Indeed, of the three cases relied on by the applicant company, in the first, the court allowed a late payment in those circumstances but it was not clear what circumstances pertained to that case; in the second, the tax which was to be paid on the security for costs was being contested and therefore the bill at hand was not a final one; in the third, the likelihood was that the appellant in that case had not yet been formally notified with the request for payment of security for costs; and in the remaining cases the appeals were declared abandoned in the absence of exceptional circumstances.

7.  In 2021 the law was amended to allow for a three-month time-limit to effect payment for security for costs.

8.  The applicant company complained under Article 6 § 1 that it was denied access to a court as a result of a restrictive application of the law amounting to excessive formalism.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

9.  The Court refers to its general principles concerning victim status (see, among many other authorities, Apap Bologna v. Malta, no. 46931/12, § 41, 30 August 2016) and notes that in the present case the Constitutional Court only found a violation concerning the length of the proceedings. It has neither acknowledged nor provided any redress for the alleged violation of Article 6 § 1 in relation to the applicant company’s complaint of access to court, communicated to the Government. Thus, the Government’s objection to this effect is dismissed.

10.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

11.  The general principles concerning access to court and excessive formalism in the interpretation of law by domestic courts have been summarised in, for example, Zubac v. Croatia ([GC], no. 40160/12, §§ 96‑99, 5 April 2018); Mercieca and Others v. Malta (no. 21974/07, §§ 45 et seq., 14 June 2011); and Hasan Tunç and Others v. Turkey (no. 19074/05, §§ 29 et seq., 31 January 2017). In particular, it is well-enshrined in the Court’s case‑law that “excessive formalism” can run counter to the requirement of securing a practical and effective right of access to a court under Article 6 § 1 of the Convention. This usually occurs in cases of a particularly strict construction of a procedural rule, preventing an applicant’s action being examined on the merits, with the attendant risk that his or her right to the effective protection of the courts would be infringed (see Zubac, cited above, § 97).

12.  In the present case, to assess the applicant company’s complaint of excessive formalism the Court will examine the case as a whole having regard to the particular circumstances.

13.  While the Court can accept the Government’s argument that the law served the legitimate aim of the good administration of justice, the Court is not convinced by their main arguments that the applicant company had been given enough time to see to its obligations, that it had been negligent and its excuses unfounded. It remains to be determined whether the manner in which that law was applied and affected the applicant company gave rise to a violation.

14.  The Court considers that even accepting that the applicant company erred in not opening the notification any earlier (and confusing it with another case), despite it having reached its office, the instant case presented specific circumstances which deserved appropriate consideration. It is noteworthy that there had already been a five-year delay in the appointment of the first appeal hearing. Accordingly, the legitimate aims of proceeding within a reasonable time and ensuring legal certainty had already been flouted by the authorities. Moreover, it cannot be ignored that the domestic time-limit to ensure payment was intended to be twelve months, or shorter in the case that the hearing was appointed earlier, but, in the present case, it was reduced to only seven days, due to the sudden request for costs just two weeks before the hearing and the public holiday following the weekend (contrast with the new amended law where an individual must inevitably have three months to pay the security for costs). Importantly, the applicant company’s representative had been present on the day of the hearing and offered to pay the deposit on the spot, thus clearly showing interest in pursuing the case and the availability of the funds. The Court also notes the relevant examples of exceptions (beyond those provided in law) made in other domestic cases including on the same day, indicating that this course of action was not unheard of and the absence of any grounds in the decision of the Court of Appeal of 29 June 2020 justifying its refusal to briefly postpone the hearing to allow the applicant company to secure payment there and then, as had been done in another case.

15.  Bearing in mind all the above, having applied the law to the letter, with no regard for the abhorrent five-year inaction of the authorities and other relevant circumstances, the Court considers that the decisions of the Court of Appeal were disproportionate to the legitimate aims pursued. Indeed, in both its decisions that court did not take sufficient account of the particular circumstances of the case opting instead to apply the relevant rules and case‑law formalistically and too rigidly thus depriving the applicant company of the essence of its right to access to court. The constitutional jurisdictions did not right that wrong when assessing the applicant company’s complaint. It follows that in the present case, the right of access to court was impaired because the application of the law ceased to serve the aims of “legal certainty” and the “proper administration of justice” but rather formed a sort of barrier preventing the applicant company from having its case determined on the merits by the competent court (ibid., § 98).

16.  There has accordingly been a violation of Article 6 § 1 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

17.  The applicant company considered that the only remedy which could redress the violation was for the proceedings to be reopened (in the present case the appeal to be revived and heard) as had happened following the Court’s findings in San Leonard Band Club v. Malta (no. 77562/01, ECHR 2004-IX). In that light it made no claim for pecuniary damage but claimed 25,000 euros (EUR) in respect of non-pecuniary damage and EUR 5,988.27 in respect of costs and expenses incurred before the domestic courts (of appeal and constitutional competence) and EUR 2,630.10 for those incurred before the Court.

18.  The Government considered that the claim for non-pecuniary damage was excessive. In respect of costs and expenses they noted that the complaint had been rejected by the domestic courts and considered that they should not be made to pay “extra-judicial” fees the applicant company agreed to pay the lawyer but only “judicial costs”.

19.  The Court does not have jurisdiction to order, in particular, the reopening of proceedings (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 89, ECHR 2009). Nevertheless, as stated in Recommendation No. R (2000)2 of the Committee of Ministers, the practice of the Committee of Ministers in supervising the execution of the Court’s judgments shows that in exceptional circumstances the re-examination of a case or the reopening of proceedings has proved the most efficient, if not the only, means of achieving restitutio in integrum (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 48, 11 July 2017).

Bearing in mind that there appears to be at the domestic level a legal avenue to reopen the proceedings, the Court considers that to the extent that that might be possible under domestic law, such re-opening, if requested, would be the most appropriate form of redress for the established violation of the applicant company’s right under Article 6 § 1 of the Convention in the present circumstances (see, for example, mutatis mutandis, Igranov and Others v. Russia, nos. 42399/13 and 8 others, § 39, 20 March 2018, and Besnik Cani v. Albania, no. 37474/20, § 149, 4 October 2022).

20.  The Court further awards the applicant company EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

21.  As to costs and expenses, the relevant general principles under this head were summarised in L.B. v. Hungary ([GC], no. 36345/16, § 149, 9 March 2023) and A.D. v. Malta (no. 12427/22, § 219, 17 October 2023). Having regard to the documents in its possession, and noting that the costs incurred before the domestic courts and legal fees were incurred in trying to avoid the violation upheld by this Court or to redress it, the Court considers it reasonable to award EUR 8,000 covering costs under all heads, plus any tax that may be chargeable to it.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant company, within three months, the following amount:

(i)  EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 8,000 (eight thousand euros), plus any tax that may be chargeable to the applicant company, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 11 February 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Simeon Petrovski Anne Louise Bormann
 Deputy Registrar President