CASE OF CARMEL SALIBA v. MALTA

FOURTH SECTION

CASE OF CARMEL SALIBA v. MALTA

(Application no. 24221/13)

JUDGMENT

STRASBOURG

29 November 2016

FINAL

24/04/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Carmel Saliba v. Malta,

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

András Sajó, President,
Nona Tsotsoria,
Krzysztof Wojtyczek,
Egidijus Kūris,
Gabriele Kucsko-Stadlmayer,
Marko Bošnjak, judges,
Abigail Lofaro, ad hoc judge,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 18 October 2016,

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

PROCEDURE

1. The case originated in an application (no. 24221/13) 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”) by a Maltese national, Mr Carmel Saliba (“the applicant”), on 5 April 2013.

2. The applicant was represented by Prof. I. Refalo and Dr S. Grech, lawyers practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General.

3. The applicant alleged that he had been denied a fair trial contrary to Article 6 § 1; in particular, he alleged that the domestic courts had failed to give attention to the validity, credibility and relevance of the evidence before them.

4. On 27 May 2015 the complaints concerning Article 6 § 1 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5. Mr Vincent A. De Gaetano, the judge elected in respect of Malta, was unable to sit in the case (Rule 28). Accordingly the President decided to appoint Mrs Abigail Lofaro to sit as an ad hoc judge (Rule 29 § 1(b)).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1949 and lives in San Gwann.

A. Background to the case

7. A robbery took place on 12 May 1995 in the home of Mr and Ms Z. (the former is a lawyer by profession). According to the versions of the victims at the time, the robbery was carried out by five to seven hooded men who appeared to be under the effects of drugs. They had entered through the roof and sought to find the safe. Various items were stolen and the victims were injured while they were being held face down in the bedroom. According to Mr Z. during the robbery one of the robbers said, “Give us the two buckets of gold you told us you had in your possession”. Further conversations between the robbers indicated that they had a southern Maltese accent. When questioned after the incident the victims stated that they had not recognised anyone at the time, since they had been kept face down in the bedroom during the robbery. The Government contested the latter fact, relying on the version of events given by Mr Z. in 2002 (see below).

8. The applicant and his brother, like their father previously, had done work for the Z. family as plumbers and electricians.

9. During the investigation Mr Z. mentioned the applicant and his brother as possible people who had had access to his house and had been familiar with it, without indicating that he identified either of them as the robbers. Thus, despite the fact that the applicant had been questioned by the Police in June 1995, neither of them had, at the time, or later, been charged in connection with this robbery and no criminal prosecution ever ensued because of the lack of any evidence pointing in their direction.

10. In 1996, the relationship between the brothers and Mr Z. broke down following Mr Z.’s failure to make payments to the applicant’s company. Following this, in 1997 Saliba Brothers (the company owned in part by the applicant) instituted proceedings against Mr Z. claiming payment for services rendered (these proceedings were eventually withdrawn following payment of the outstanding amount).

11. The applicant alleged that pending the above‑mentioned proceedings, Mr Z. had started bad-mouthing the applicant to neighbours ‑ who had also suffered burglaries – stating that it had been the applicant, that is to say the electrician they all used, who had committed them. The Government noted that according to the evidence tendered by E.C., a neighbour of Mr and Ms Z. (see below), it had been a common perception that families who had been regular clients of the applicant had been robbed. The applicant highlighted that the same E.C., in cross‑examination had twice confirmed that he had had no suspicions that the applicant had somehow been involved in the robbery.

12. Five years after the robbery, in June 2000, Mr and Ms Z. sued the applicant in civil proceedings for the damage resulting from the said robbery as, in retrospect, Mr Z. considered that he recognised the applicant as one of the robbers.

B. Civil proceedings

1. Proceedings before the Civil Court (First Hall) in its civil jurisdiction

13. During the proceedings, the court heard evidence from Mr Z. (including a lengthy affidavit) and accepted an affidavit from Mr Z.’s wife. The applicant was unable to cross-examine Ms Z. on the basis of medical advice given by an ex parte doctor who had testified before the court to the effect that Ms Z. had been suffering from depression for around eight years and that in the last two years her state of health had become much worse (she had been spending her days in bed not wanting to know about anything going on around her and had become dependent on others). He considered that there was no hope of this situation changing in the near future. When asked whether Ms Z. had been in a position to understand what she had been saying at the time of the incident, the ex parte doctor replied “I think so, of course she was”.

14. The applicant’s request to have Ms Z.’s statement expunged from the record was refused.

15. In all, the evidence presented before the court consisted of the following:

On behalf of the applicant:

- The affidavit of the applicant, as well as his oral testimony (where he noted the good relationship that had existed between him and the plaintiff and categorically denied any involvement in the robbery, during which he had been at home sleeping, and claimed that the plaintiffs had instituted the case only in response to the proceedings his company had lodged against Mr Z., in which they had eventually been successful; following these proceedings Mr Z. had started telling neighbours who had been robbed that he (the applicant) had been responsible; he related that the morning following the incident he had been surprised to see the police on the road at the Salibas’ shop, close to Mr Z.’s house and, after hearing what had happened, he had repeatedly tried to call Mr Z. to offer a helping hand. Since he had not been able to get through, he had gone to the house where he had been greeted warmly at the entrance by Mr Z., who had recounted what had happened during the night including a reference to three persons who Mr Z. had claimed had been watching the roof intermittently for a period; some days later, while the applicant had been visiting a relative in hospital with his family, they had also visited Ms Z.; Mr Z. had been happy to see him (the applicant) and had told him not to worry about the money he had been owed as only a little had been stolen and it had not even been worth the beating they got; the applicant further noted that he had been surprised about Ms Z.’s written testimony, given the relationship of mutual respect they had had, and he wished to cross-examine her; he further recounted how he had been called out to Mr Z.’s house during the night only once, and that he had never fallen off a ladder, contrary to what had been alleged by Mr Z. He further referred to certain jobs completed in the house and to a number of named individuals who could have seen the safe; he stated that the only times he had avoided Mr Z. had been when the latter had failed to pay him; he noted that contrary to what Mr Z. had alleged, he had had no connection to arms or drugs (save for possessing a hunting rifle with the relevant police permits, which he had no longer used); he stated that he had not stopped work on one of Mr Z.’s properties of his own motion, but because Mr Z. had told him to do so; the applicant had also explained this to N.S.T (an architect); the applicant also contradicted various elements of Mr Z.’s affidavit; in particular he denied ever having been told about buckets of gold by Mr Z., and reference to such gold had only been made by Mr Z. during the proceedings lodged against him, and by the police one time when they had questioned him (the applicant));

- The affidavit of the applicant’s wife (she recounted that the applicant had only left the house twice during the night since 1989 – once to go to the Z. family’s premises following an urgent call-out, and once to go to another client; She also recounted their visit to Ms Z. after the robbery and in what circumstances they had met prior to the robbery; she lastly explained how surprised and hurt she was about Mr. Z.’s actions in their regard).

- The two affidavits of the applicant’s two brothers (F. and S.) and the oral testimony of F. (F. confirmed that he had worked everywhere in the house, including next to the safe, together with other workmen from his company and that other named individuals had had access to the house as they had also rendered services there; he also denied that he had ever spoken to W.B. (the Z. family’s caretaker) about payments due, and that he had ever taken anything from Mr Z. without permission, contrary to what had been alleged by him. He further stated that when questioned by the police two years after the incident they had asked him whether he had been aware of the position of the safe and the buckets of gold; in his oral testimony he confirmed that he had fallen off a ladder once in Mr Z.’s house contrary to Mr Z.’s statement alleging that it had been the applicant who had fallen); (S. testified that the brothers had stopped work on one of the projects because Mr Z. had not confirmed that he had wished them to continue and had failed to pay sums already due, and in respect of which they had thus sued Mr Z. S. also contradicted other events recounted by Mr Z. in his testimony and noted that he had never discussed due payments with W.B.)

- The seven affidavits of the applicant’s seven sisters (who denied ever having made certain statements to Mr Z., which he had imputed to them in his testimony, or having gone to his house, or even having known him);

- The cross-examination of Mr Z. (at two hearings);

- The cross‑examination of the police investigator, G.C. (at two hearings);

- The cross-examination of a neighbour, M.C.

On behalf of the plaintiffs:

- The two affidavits of Mr Z.

In the first affidavit Mr Z. explained the history and the good relationship he had had with the applicant’s family and how much the Z. family had cared for and trusted the applicant. He stated that at the time of the robbery the Saliba brothers had been working on project D. but works had been stalled; that the applicant’s sisters had gone to his office worried and in fear of the applicant, who they said was clever and armed; Mr Z. explained that a few weeks before the robbery the applicant had been working at the house, including on the roof, and at one point, while distracted, the applicant had fallen off a ladder; Mr Z. explained that on some occasions both the applicant and his brother had had access to the door of his roof and had known how to open it, and had also worked close to the safe. Mr Z. stated that in more recent years it had been only the applicant who had attended to jobs in the house and who had come during the late hours of the night, coming promptly and not charging them, even though he usually charged for all his services, even minor ones – thus, he had been the only one in the world, and nobody else, who had the knowledge of the house as it would be at night time. Mr Z. related that on one occasion, where payment to the applicant was likely to be delayed, he had reassured the applicant by referring to his (Mr Z.’s) numerous immovable properties and told the applicant precisely to “rest assured you have two buckets of gold as guarantee”. Mr Z. noted that he had never used these words with anyone else and that the applicant had appeared to take him literally; he stated that later on the applicant had also admitted to these words having been uttered to him. Mr Z. recounted the robbery: how, while the Z couple had been asleep, they had heard chaos in the entrance of the house and one man had run through the corridor directly towards them and asked him for gold. Another two men had followed and kept the couple in the bedroom in the dark; one of them (who injured his wife while holding her on the ground) had again asked for gold stating that they would go and consume drugs, while the other had repeated “give us the gold you told us you have”. Mr Z. stated that he had recognised the words on the spot, as those he had once uttered to the applicant. Mr Z. noted that the two people who had held them in the bedroom had appeared to be under the effects of drugs; while they had been asking for gold it had become clear that they had been targeting the safe. Twenty minutes later another voice had called out from the end of the corridor that they could leave and so they had done so. Mr Z. stated that once the robbers had left the bedroom he had followed them and recognised the applicant as one of the six or seven men - “I recognised him with my eyes, after already knowing that he was one of them through my ears”. Mr Z. held that the applicant had been the only one to have remained silent. Having known the applicant closely and worked with him for around twelve years, Mr Z. felt that he could recognise his mannerisms, stature, height and behaviour, as well as his movements and head inclinations, which corresponded to what he had seen. Mr Z. continued to explain that it had been natural not to say anything in that moment of shock and fear, but that:

“I knew from the start that he was part of the group because I was told so and because I recognised him, he had kept his distance but I saw him leave in the car with the others as if [qisu] the bottom part of his face uncovered”.

While various rooms had been searched, only the contents of the safe had been stolen. Mr Z. explained that one of the robbers had exclaimed “there it is” and they had initially tried to remove the safe, but then they found the key to it in Ms Z.’s purse, which as a habit she regularly kept on the armchair in the sitting room. Confronted with this situation Mr Z. reiterated that on that date the applicant and his brother had been the only two persons who had known about the safe as they had been the only people who had entered that part of the house on multiple occasions since 1991, and the louvres had been always closed. Mr Z. recalled how after the robbery numerous people had come and seen the safe, but not the applicant or his brothers. The applicant had had all the knowledge necessary, including how to open the roof door, where to cut the phone line, where to find the purse, and other useful details to facilitate such a robbery, which had taken place in twenty minutes during the night. Mr Z. continued to explain the situation after the robbery. He stated that the working relationship had ended and that the applicant had gone to the house a couple of hours after the robbery; he had offered no help and had just shown his face; nor had he offered any help when he had gone to visit Ms Z. in hospital, with his wife and daughter who, had not been known to the couple. Mr Z. testified that a few days after the robbery he had gone to buy a bulb from the applicant, who had expressed no sympathy. Mr Z. stated that subsequently the applicant had called him to tell him he would no longer work on project D., and Mr Z. noted that the architect N.S.T. and their caretaker W.B. had said that the applicant had refused to work for Mr Z. any longer as he had no longer had money, and that he had failed to pay the brothers money due for services rendered. It had also been strange that sometime after the robbery, Mr. Z had sent invoices claiming such fees and had started avoiding the applicant. Yet in 1995 the applicant had sent the couple a Christmas card and in 1996 invited them to his daughter’s wedding. Mr Z. further referred to various robberies which had taken place in households in the neighbourhood which had been all clients of the applicant. He stated that M.C. had told him that the applicant had been the last person in the room before she had found her jewellery box missing. He reiterated the changed attitude of the applicant towards him following the robbery and had even instituted civil claims in judicial proceedings. The Saliba brothers had also not told him that their father had died, even though he had been the testamentary executor nominated by their late father. According to Mr Z. the applicant had known that had they not been sure of his responsibility, they would not have instituted proceedings against him.

In a later affidavit, Mr Z. clarified that it had been only three of the sisters who had gone to him in fear of their brother. He considered the applicant’s wife’s affidavit as totally untruthful; likewise the applicant’s brothers’, in particular in connection with the reasons why work on project D. had stopped – he noted that the real reason had been the robbery and the fact that the applicant had realised he had been caught – and in connection with their exchanges with W.B. Mr Z. also considered the applicant’s testimony to have been untruthful and therefore an indication of guilt, and indicated a number of lies therein.

- The affidavit of Ms Z. (to the effect that robbers had targeted the safe, which they had tried to remove entirely until they had found the key to it in her handbag; she stated that absolutely nobody had known about the safe before the robbery as nobody had entered that very private area of the house; she further stated that it had been only the applicant who – in the three years before the robbery – had continuously and at all times of day and night entered all parts of the house as he had been their trusted handyman, and that sometimes he had been accompanied by his brother and that they had both known about the safe. She reiterated that it had been only the applicant who had had access to the safe and had known the house by night, knowledge which neither his brother nor the domestic help had had. She explained that she had been told that after the incident the applicant had gone to their house and to visit her in hospital with his family; he had also sent a Christmas card and invited the couple to his daughter’s wedding; however he had not wanted to continue working on one of Mr Z.’s projects and had eventually sued them in court without giving them prior notice. She considered this to be odd given their good relationship, which had dated back many years, and she thus considered that they had had something to hide.);

- The affidavit of the architect on project D., N.S.T. (who stated that the reason given by the applicant for stopping the works on project D. had been that Mr Z. had had no money);

- The affidavit of W.B. an employee of the Z. family (who testified that the Saliba brothers had been the trusted electricians and plumbers of the Z. family and they had stopped working on any of the Z. family’s properties after the robbery (unlike other workers); he stated that the brothers had once asked him why Mr Z. had not been paying them as Mr Z. had told them that compared to the gold he had not even a breadcrumb had been taken. Another time the brothers had told him (W.B.) that they had not wanted to work for Mr Z. anymore as he had had no money. When he (W.B.) had told Mr Z. what the brothers had told him, Mr Z. had told W.B. that he had once told the applicant not to worry if he had not paid up immediately as he had had two buckets of gold as a guarantee for any outstanding debt. Mr Z. had explained to him (W.B.) that the applicant had taken him literally and that the applicant had expected to find more than he had actually found in the safe; W.B. also stated that he had never entered that private part of the house where the safe had been. Lastly, he denied participation in the robbery);

- The affidavits of two neighbours, E.C. and M.C. (E.C. stated that he and other neighbours had been robbed while being clients of the applicant who ran a shop on the same road where they lived – this fact was known in the area);

- Evidence of police inspectors S.G. and J.C. (S.G. confirmed that at the time of the incident they had not known who the robbers had been: J.C. stated that the investigators had spoken about the applicant in June 1995 and that subsequently he had been questioned (amongst others – five people altogether) as a person with the knowhow to commit such a robbery, as well as a result of Mr Z.’s claim to the effect that he had mentioned the buckets of gold only to the applicant. J.C. also stated that Mr Z. had said that only one of the four or five robbers had spoken during the incident);

- The cross-examination of the applicant’s two brothers and four of his sisters

- Breakdown of the plaintiff’s claim, confirmed under oath by Mr Z., and a number of supporting documents.

2. First-instance judgment concerning responsibility

16. By a five-page judgment of 10 October 2006 the Civil Court (First Hall), in its civil jurisdiction, considered that the applicant had taken part in the robbery and therefore ordered him to pay damages yet to be quantified, and requested that the plaintiffs submit a claim. The court admitted that there had been various inconsistencies in the testimony of Mr Z. – for example statements that the applicant had been silent and yet that the victim had recognised him through his sense of hearing, as well as his statement that someone had told him that it had been the applicant. The court further noted that many of Mr Z.’s arguments indicating that the applicant was implicated had weakened his version. These arguments based the applicant’s guilt on the fact that i) he had fallen off a ladder; ii) that he had invited Mr and Ms Z. to his daughter’s wedding; iii) that he had not informed Mr and Ms Z. about the demise of his father; iv) that he had been paid for work by means of land; v) that he had sent the Z. family a postcard; vi) that the applicant had fallen out with his brothers; and vii) that the applicant had been “silent and absent”. Indeed these repeated arguments had been far-fetched and banal, usually an indication that an individual was not convinced of his statement. The court noted that the only established facts were that the robber had known both the house (allowing him to move comfortably within it and find what he wanted) and Mr Z. (giving the robber a reason to remain silent during the robbery). While the applicant had not been the only one to have had these traits, the applicant had been one of the few who had had them. Furthermore, the robbers had known about the “buckets of gold”, which Mr Z. had allegedly mentioned to the applicant. In the court’s view the robbers had either known this from the applicant and, if so, the applicant would have had no other reason to share this information apart from bad intentions, or the robber had actually been the applicant himself. The court noted that this unfortunately indicated that Mr Z. had used this factor for the identification of the applicant, and it would have been better to have solely relied on visual identification.

17. Nevertheless, the court considered Mr Z.’s testimony reliable on the basis that identification could be based on mannerisms, movements and a silhouette, even if the face and voice remained hidden. It concluded that the applicant “had taken part in the robbery” and in application of the civil code was responsible for the damages suffered by the claimants.

18. By a decree of the same date the court ordered Mr Z. to lodge a schedule of damage within two months.

3. Continuation of proceedings concerning quantification of damage

19. By means of an affidavit of 13 November 2006, confirmed under oath by Mr Z., the Z. family claimed damage amounting to around 125,000 euros (EUR) covering the items and money stolen (including a list of jewellery drawn up with the assistance of a professional who had not taken an oath) and the expenses to repair the damage caused to the house. They further claimed medical expenses of EUR 85,000 in relation to the injuries suffered.

20. On 8 January 2007 the applicant made submissions on this point requesting that the court not allow the affidavit of 13 November 2006 as evidence on the grounds that the stage of putting forward evidence had been closed two years earlier and Mr Z. had declared that he no longer had any evidence to submit.

4. First-instance judgment concerning the award of damages

21. By a judgment of 4 March 2008, the Civil Court (First Hall), in its civil jurisdiction, ordered the applicant to pay EUR 130,000 in damages, specifically for the EUR 125,000 in stolen items and cash and for the damage done to the house, as declared by Mr Z.; and EUR 5,000 in medical expenses. The court noted that the victims were not required to have receipts of the items obtained over several years or proof of how much cash they had had in the house. In such circumstances the best proof was the victims’ declaration under oath, the veracity of which (after having seen the house) the court had no reason to doubt. Thus, damages for items stolen had to be granted on the basis of Mr Z.’s claim. However, as to the medical expenses, while it was true that the claim had also been made under oath, given that the expenses had been incurred after the robbery and after the couple had already decided to sue, the court considered that the claimants should have kept receipts of such expenses and therefore made this award arbitrium boni viri.

22. By a decree of the same day the court refused the applicant’s request not to allow the submission of the claim for expenses rendered by means of an affidavit not confirmed under oath by the ex parte expert and submitted after the stage for submissions of evidence had closed.

5. Appeal proceedings

23. On 17 March 2008, the applicant appealed against all the above decisions. In his appeal application and again orally during the appeal hearing he asked the court to allow his brother to appear in court (to show that the victim could not differentiate between the two brothers – see paragraph 15 above in connection with the testimonies concerning the ladder incident). The appeal application read as follows:

“At this stage, the plaintiff is humbly making a formal request to the Court of Appeal to allow the applicant to produce as evidence before it his brother [F.S.] in order for the court to be able to confirm the above ...”

The Government contested the fact that the written request had been repeated orally, as no such record had been found in the acts of the proceedings. The Court of Appeal gave no reply to this request.

24. The Court of Appeal, by a judgment of 6 October 2009, reiterated that it was well known that it was not for it to alter the assessment of evidence in the absence of compelling reasons. It noted that for civil proceedings to reach a finding it sufficed for a judge to have a “moral certainty”, as opposed to proof beyond reasonable doubt as required in criminal proceedings. It was true that a more rigorous test was required when a person was being accused of a crime in the context of civil proceedings, particularly when the issue was the identity of the person. However, Maltese law did not provide what was necessary for identification, only what was not necessary, thus leaving it to the judge to decide according to his discretion. In the present case, the whole case depended on Mr Z.’s identification of the applicant, which the first‑instance court had chosen to believe despite the inconsistencies and contradictions in his and Ms Z.’s testimonies. In this connection one had to bear in mind that the memory of a victim of a violent robbery could suffer psychological effects which may result in inconsistencies. Having examined the acts of the proceedings and the applicant’s submissions, it considered that it need not depart from the first-instance court’s findings because the applicant’s arguments were secondary to the actual identification of the applicant and were therefore not justified.

25. As to the dismissal of the applicant’s objection in relation to the claim for damages which were allowed at a later stage, the court considered that the claim was not new evidence as such and it was the only proof of the damage that had been caused. Moreover, it had been the court which had requested that Mr Z. lodge the claim and the applicant had had the possibility of making submissions in reply, thus no prejudice had been caused.

26. As to the award of damages, the Court of Appeal noted that Mr Z.’s testimony had been made under oath; the list of jewellery had been drawn up with the assistance of an expert (although he had not confirmed it under oath); thus, Mr Z. could not be blamed for not presenting further evidence of the damage, particularly since some items had been inherited and others purchased long before, as well as because certain documents had also been in the safe and had been stolen during the robbery. Mr. Z. had not valued the items himself and had appropriately engaged a jeweller to perform the evaluation. Had the applicant had doubts as to that person’s expertise, he could have, at the relevant time, challenged him and called him as a witness.

C. Constitutional redress proceedings

27. The applicant instituted constitutional redress proceedings claiming a violation of, inter alia, Article 6 § 1 of the Convention.

1. Judgment at first instance

28. By a judgment of 7 October 2011 the Civil Court (First Hall), in its constitutional jurisdiction, rejected the applicant’s claims.

29. It considered that the applicant had not been found guilty of a criminal offence, but was responsible for damages arising as a result of that crime. In consequence the proceedings remained under civil law and the burden of proof remained that used for civil cases, namely a balance of probabilities, and did not require a more onerous degree of proof. It noted that the first court had assessed the evidence available and considered that the identification of the applicant had been convincingly established; the Court of Appeal found no reason to alter that conclusion. Thus there was nothing which indicated a breach of the applicant’s rights.

30. As to the applicant’s inability to cross-examine Ms Z., it noted that there had been a valid reason, namely her poor health as confirmed by her doctor, and the applicant had had the opportunity to comment on her written testimony. In its view there had been nothing arbitrary in the court’s decision to allow that statement, as it had been acting within its discretion. Furthermore, the applicant had not appealed against this matter before the Court of Appeal. As to the refusal of the appeal court to call for his brother, it noted that it was not the Court of Appeal’s role to re-examine witnesses and the applicant’s brother had already given testimony in written and oral form at first instance. As to the refusal not to allow the “late” claim for damages, it found that this fell within the court’s discretion to proceed with the case in the way it deemed fit in the interests of justice. Lastly, no issue arose from the courts’ acceptance of an evaluation of damage which had not been confirmed under oath by the expert, and such an evaluation fell within the discretion of the courts. It concluded that the applicant’s rights had not been breached.

31. The applicant appealed.

2. Judgment on appeal

32. By a judgment of 15 October 2012 the Constitutional Court also rejected the applicant’s claims. It considered that in the civil proceedings the first-instance court had had no doubt about Mr Z.’s testimony and his identification of the applicant and nothing indicated that that court had not taken into consideration all the necessary evidence for its assessment. Furthermore, the Court of Appeal had not found there were compelling reasons to alter that decision.

33. As to the failure of the Court of Appeal to hear evidence from the applicant’s brother, it considered that although this request had been made in writing amongst other pleadings in the appeal application, it had not been reiterated in the concluding requests of the appeal application. There was also no note in the minutes of the hearings that this matter had been raised orally. In any event, the applicant’s brother had given testimony at first instance and, given that such a decision fell within the discretion of the courts, the applicant had not proved that the failure to re-examine the witness had caused him prejudice.

34. As to the inability of the applicant to cross-examine Ms Z., the Constitutional Court noted that her testimony (unlike that of her husband) had not referred to the identification of the applicant, which had been nearly the only factor on which the civil court had based its decision. Thus, no prejudice had been caused to the applicant. It followed that no issue of equality of arms arose as a result of the two procedural steps examined above.

35. As to the decision on the damage, the Constitutional Court considered that the principle of onus probandi incumbit ei qui dicit non ei qui negat had been respected, as the civil court had opined that the damage had been proved by Mr Z.

D. Subsequent events

36. According to the documents submitted, following the above judgments the applicant became extremely depressed and unfit for work. He was thus excused from work and began to receive a disability pension. He considered that had he continued to work, he would have earned much more. According to the Government the applicant was certified as unfit for work on 1 July 2005 and retired when he was sixty-one and has since then been in receipt of a pension.

37. On 25 March 2010 Mr and Ms Z. made a request for a judicial sale by auction of property belonging to the applicant in order to have the courts’ judgment enforced. Another such request was made on 11 February 2013.

38. The applicant attempted to obtain the entire case file concerning the civil proceedings; however, he was informed that it had gone missing from the Registry of the Courts of Malta; the applicant lodged the application before this Court with the documents in his possession. The Government located the file following communication of the application and submitted it to the Court.

39. In 2015, since they had not yet received payment from the applicant, the Z. family instituted civil proceedings against the applicant’s brother F., asking the court to declare him responsible for the same robbery and asking the court to order (in solidum with the applicant) the payment of the same damages liquidated by the Court of Appeal in its judgment of 6 October 2009.

40. The photos submitted to this Court by the applicant show, in particular, a difference in height and hair colour between the applicant and his brother.

II. RELEVANT DOMESTIC LAW

41. Book third of the Code of Organisation and Civil Procedure (Chapter 9 of the Laws of Malta) concerns evidence, and reads as follows:

“558. All evidence must be relevant to the matter in issue between the parties.

559. In all cases the court shall require the best evidence that the party may be able to produce.

560. (1) The court shall disallow any evidence which it considers to be irrelevant or superfluous, or which it does not consider to be the best which the party can produce.

(2) Where evidence tendered by any party is disallowed, it shall be lawful for such party to demand that the ruling of the court in regard to the disallowing of such evidence be made by a decree; but, where only a question to a witness has been disallowed, the party may demand only that a record thereof be made in the proceedings, in the manner which the court shall, according to circumstances, direct.

(3) Where in any cause or matter it is not possible, in consequence of damage to or loss of any court or other document, for any party to such cause or matter to comply with any requirement of this Code relating to the formal production of documents or otherwise, the court may either dispense with such requirement or give such other directions as the circumstances of the case require:

Provided that in proceedings before the courts of civil jurisdiction, the parties to the cause shall be bound to assist the registrar in compiling a copy of the court records or other documents which have been damaged or lost and, within such time as the court may establish, they shall provide the registrar with such information and documentation in their possession which will assist the registrar in compiling the court records or other documents damaged or lost in as full a manner as possible.

561. It shall be lawful for the court to require the party tendering evidence to state the object of the evidence.

562. Saving any other provision of the law, the burden of proving a fact shall, in all cases, rest on the party alleging it.”

42. Other relevant articles of the same code read as follows:

“204. (1) (b) When the trial of the cause is closed, no further evidence shall be allowed, except for just cause and by leave of the court.”

“208. (1) No witness who was not produced in the court below may be produced on appeal, unless -

(a) the opposite party gives his consent thereto; or

(b) it is proved on oath or otherwise, that the party tendering the evidence of such witness had no knowledge thereof, or was unable, by the means provided by law, to produce such witness in the court below; or (c) the evidence of such witness was tendered and disallowed before the court below and the appellate court considers it admissible and relevant; or

(d) the appellate court is satisfied of the necessity or expediency of taking the evidence of such witness:

Provided that in any such case, the court may, in adjudging the costs of the case, take into account the tardy production of such witness.”

“211. When the hearing is concluded, the court, if it does not deliver judgment on the same day, shall reserve judgment for the earliest possible date to be fixed for the purpose.”

“568. (1) Witnesses shall be summoned to appear by means of a subpoena to be issued on the application of the party interested.”

“579. The opposite party has the right to cross-examine a witness; and in such cross-examination leading or suggestive questions are allowed.”

43. Article 1049 of the Civil Code, reads as follows:

“(1) Where two or more persons have maliciously caused any damage, their liability to make good the damage shall be a joint and several liability.

(2) Where some of them have acted with malice, and others without malice, the former shall be jointly and severally liable, and each of the latter shall only be liable for such part of the damage as he may have caused.”

44. Article 648 of the Maltese Criminal Code reads as follows:

“In order to identify any person whose identity is required to be proved, or in order to identify any object to be produced in evidence, it shall not, as a rule, be necessary that the witness should recognize such person from among other persons, or pick out such object from among other similar objects, unless the court, in some particular case, shall deem it expedient to adopt such course for the ends of justice.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

45. The applicant complained of the fairness of the civil proceedings lodged against him. He referred to the assessment of evidence by the domestic courts and to their lack of attention to its validity, credibility or relevance. He further complained that the Court of Appeal had not considered whether there had been impelling reasons to depart from the first court’s assessment of evidence. Moreover, the proceedings had not respected the equality of arms principle.

46. The applicant relied on Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

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

B. Merits

1. The parties’ submissions

(a) The applicant

48. The applicant submitted that he had suffered a violation of his fair trial rights due to the manifest unreasonableness of the domestic courts decisions. He referred to Bochan v. Ukraine (no. 2) ([GC], no. 22251/08, ECHR 2015). He submitted that both the first-instance court and the Court of Appeal had failed to appreciate the quality of the evidence in the record, and had failed to give due consideration to the submissions and arguments of the applicant while giving uncalled for weight to the evidence of Mr Z. (given after his relationship with the victim had turned sour), in the sense that elements which had not been proved had been taken as proven, conjectures had been taken as facts, and important guarantees for the examination of the evidence tendered had not been enforced, to the prejudice of the applicant. He considered that the evidence had been flimsy and inconsistent and there had been no elements pointing to his participation in the crime.

49. Despite the domestic courts noting the inconsistency of Mr Z.’s testimony and that his identification of the applicant was not credible, they nonetheless contradictorily found that they could rely on his identification based on bearing and behaviour. Moreover, while basing their decision on the fact that Mr Z. had recognised the applicant, no consideration had been given to the fact that several years before (at the time of the incident) he had been unable to identify the applicant, and thereafter he had kept in contact with the applicant. It was only years later that Mr Z. had given two names to the police, that of the applicant and his brother, as he had been unsure of the different heights and builds of the two brothers, despite the fact that Mr Z. had known both of them well. Mr Z. had also stated that the robbers had been drug addicts, but the applicant had had no such dependency or connection to drugs. The police had never pressed charges against the applicant since there had been no evidence indicating his involvement. Mr Z. had said that all the robbers had spoken apart from one whom he had claimed had been the applicant, him having remained silent. There had been consequentially no basis for assuming it had been the applicant. Indeed, twenty years later, Mr Z. accused the applicant’s brother of having participated in the robbery, stating that he had been unsure as to who it had been. The witness testimony in the form of an affidavit of W.B., who had been called by Mr Z. to substantiate his allegations concerning the reference to the “buckets of gold”, had during cross-examination come across as extremely confused. W.B.’s statements in cross-examination had contradicted his previous statements which had gone to show that a lot of what had been said in the affidavit had been hearsay; W.B. had merely been reporting what Mr Z. had told him. Indeed no evidence had been offered that talk of buckets of gold had only been made by Mr Z. to the applicant ‑ this element had been stretched even further by the gratuitous assumptions of the courts who had considered that “the only reason for discussing buckets of gold with others would [have] essentially be[en] to get hold of the buckets in an illicit manner”. Similar considerations applied to the cross-examination of another witness, architect N.S.M., where it had turned out that – unlike what the latter had stated in his affidavit – the applicant had not been the sole electrician and plumber of the Z. family, since the applicant’s brothers had also worked for Mr and Ms Z.

50. In the applicant’s view the courts had ignored the validity, credibility and relevance of the evidence tendered and their decision had not been based on reason with the result that an unsafe judgment had been delivered with huge financial repercussions for the applicant. Indeed simply proving that the applicant had been familiar with the premises should not have been the sole reason for finding him responsible and it had not been shown that he had been the only person who had been so familiar. Similarly, the fact that a robber had been silent could only have meant that such a robber had known the family, but nothing had indicated that it had indeed been the applicant. Thus, the court’s findings had been based solely on the alleged recognition of the applicant made several years after the robbery by Mr Z., which could not be corroborated by the above arguments. Moreover, Mr Z.’s lengthy affidavits had been full of unproven hypotheses, speculation, exaggeration, hyperbole, hearsay statements and statements about what Mr Z. had imagined had happened (narrated as though they had really happened) as well as a running commentary about a multitude of unrelated events and irrelevant material unconnected to the robbery.

51. The applicant considered that the domestic courts had also not applied the relevant procedural safeguards. They had failed to apply an adequate standard of proof. They had also failed to consider that Mr Z.’s testimony had been inconsistent and they had failed to filter the allegation of recognition through the scrutiny which had been called for. Nor had the courts followed previous case-law concerning the importance of the fact that identification should be certain, and concerning the principle that if an allegation is not proved, the court cannot consider it as true – in the present case as admitted by the Government the evidence was diametrically opposed; thus the court should have had corroborating proof, in the absence of which (as had been the case in the instant case) it should not have been said that the plaintiff had proved his claim.

52. Furthermore, the Court of Appeal had refused to consider whether the first-instance court had properly evaluated the evidence before it, failing to consider whether there had been valid and compelling reasons for it to do so, and failing to give reasons for its decision, or to highlight any convincing element on which the first-instance court decision had been based.

53. The applicant also contended that the proceedings had not respected the equality of arms principle. Firstly, he had not been allowed to cross‑examine a main witness (Ms Z., who had been present during the robbery and had been one of the plaintiffs) whose testimony had been of particular relevance in the light of the multiple inconsistent statements made by her husband. Moreover, despite her having been present at the scene, her written testimony had made no reference to the “buckets of gold”, a crucial element in finding the applicant responsible. However, the court had accepted the ex parte doctor’s statement to the effect that she could not testify without appointing an independent doctor to examine the witness and her condition or ability to do so. Nevertheless, his application not to allow her statement had been refused.

54. Similarly, he had not been able to rebut the quantification of the claim for damages made solely by the victim (and at a stage where the submission of evidence had been closed). While the court had given Mr Z. two months to make his claim and submit his evidence, the applicant had only been able to make submissions thereon but had not been given time to bring evidence or cross-examine the applicant or his jeweller. Ultimately damages had been granted only on the basis of Mr Z.’s mostly unsubstantiated statement (no proof had been submitted in relation to items amounting to EUR 85,376.19 in the claim). Furthermore the burden of proof had been reversed in so far as he had had to prove that the quantification presented by Mr Z. had been incorrect as opposed to Mr Z. proving the actual damage. The applicant argued that he had had no means of proving that the quantification had been incorrect. Indeed Mr Z. had not called to the stand the jeweller who had helped in the quantification of the damage, denying the applicant the possibility to cross-examine him. Nor had the court appointed an independent expert. The applicant considered that since the jeweller had not confirmed under oath the claims presented before the court, according to domestic case-law those documents should not have constituted evidence. The applicant also complained about the refusal of the Court of Appeal to allow the appearance in court of his brother to counter the credibility of the victim’s testimony. Indeed, given that Mr Z. had not been able to distinguish between the applicant and his brother (Mr Z. had originally admitted that he could not be sure which of the two had been involved), it had been important for the Court of Appeal to juxtapose the brothers so that the court would have been able to appreciate the disregard of the first-instance court for the evidence before it.

55. Overall, the applicant complained that throughout the proceedings the courts had relied on an insufficient level of proof with regard to the plaintiff, requiring him to disprove versions of events which on their own should not have constituted sufficient evidence. Thus the court’s decision had been given in breach of the principle onus probandi incumbit ei qui dicit ei qui negat.

(b) The Government

56. The Government submitted that Article 6 § 1 provided a procedural guarantee and not a substantive one, and a breach of the provision could be found only if the decision on the merits was arbitrary or manifestly unreasonable. They noted that contracting states had a greater latitude when dealing with civil cases (Dombo Beheer B.V. v. the Netherlands, 27 October 1993, Series A no. 274) and recapitulated the case-law on the matter (with particular reference to Camilleri v. Malta, (dec.) no. 51760/99, 16 March 2000; Al- Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011; Perna v. Italy [GC], no. 48898/99, ECHR 2003‑V; and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, ECHR 2012).

57. The Government submitted that the applicant had produced evidence in his case to rebut the claims against him. All the evidence brought by the parties, which had been diametrically opposed, had been examined by the domestic courts, who had considered on the balance of probabilities (the burden of proof applicable in civil cases) that Mr Z.’s version of events had been more credible. The domestic courts’ decisions had given reasons, specifically that if two individuals have known each other for a long time, they recognise each other even if they cannot see each other’s face or hear each other’s voice, recognition being the result of stature, mannerisms, posture and movements of the person concerned. While the domestic court had pointed out the inconsistencies in Mr Z.’s version of events and his arguments, these had been considered trivial and had not weakened his position. Mr Z. had convinced the court that the robbery had been effected by someone who had been familiar with his residence and who had known where valuable objects could have been found. Moreover, the domestic courts had noted that one person had been known to Mr Z., since he had been careful not to utter a single word during the robbery. While the domestic court had noted that the applicant had not been the only person to fulfil these criteria, it had noted that he had surely been one of the few who met them. The Government noted that while the applicant’s brother had also worked for Mr and Ms Z., it had been the applicant who had been a regular visitor to their house. The reference to the buckets of gold had showed that either the applicant had related this to the robbers, or he had indeed been one of them. The domestic courts had given weight to the fact that the only reason why one would have discussed the buckets of gold with others would have been essentially to get hold of such buckets in an illicit manner. The domestic court had also considered as irrelevant and had thus discarded the banal arguments of Mr Z. and his contradictory statements. They had also ascertained the validity of the evidence and considered it to have been produced in accordance with the rules of procedure. The Government also noted that Mr Z. had indicated that some but not all of the robbers had been under the effects of drugs; in consequence the applicant’s argument to this effect had not been relevant. The Government also noted that a party to proceedings cannot make suggestions to witnesses; thus if the applicant had considered that Mr Z. had influenced the evidence of W.B. and N.S.T., he should have raised the matter in the civil proceedings and before the courts at two levels of constitutional jurisdiction.

58. As to the Court of Appeal, whose main task had been to determine whether the analysis of the lower court had been so inadequate that the conclusion reached had been unreasonable, the latter had been satisfied that there had been no reason to amend the analyses of evidence made by the first-instance court. According to the rules of procedure, no new evidence can be brought before an appeal court unless it was not known to the party at first-instance or the facts happened subsequently. The applicant’s brother F. had testified before the first-instance court and could have been cross‑examined by the applicant. Thus, the court had seen both the applicant and his brother physically and yet it had been satisfied that Mr Z. had proved his case. The Court of Appeal had been of the view that the applicant had not produced any convincing argument to allow the court to accede to such a request.

59. In the Government’s view the courts had addressed the inconsistencies in the witnesses’ evidence by adequate reasoning, and attention had been given to the validity, credibility and relevance of the evidence. They considered that the version of Mr Z. had been corroborated by that of his wife, and other corroboratory evidence had been found in the affidavits of their neighbours, the architect and W.B., as well as the cross‑examination of the applicant.

60. As to the allegation concerning equality of arms, the Government noted that there had been legitimate impediments, as proved by medical certificates and oral testimony, as to why the applicant had not been able to cross-examine Ms Z., whose evidence submitted by affidavit could nonetheless have been challenged by the applicant. Indeed, the first‑instance court had considered in a decree that it had not been necessary not to allow the affidavit in evidence and the applicant had not appealed against that decision. Moreover, that evidence had not been the sole and decisive factor leading to the court’s conclusions. As to F. being denied the opportunity to testify before the Court of Appeal, the Government noted that while the request had been made in passing in the appeal application, it had not been reiterated in the part of the appeal application containing the claims, nor had a separate application to this effect been lodged with the Court of Appeal, nor had one been made orally. As a result, no express pronouncement had been made by the Court of Appeal on the matter. In any event there had been no exceptional reasons to allow such an application at that stage of the proceedings. As to the claim for expenses, the applicant had also made submissions about the content of that affidavit and the supporting documents. The Government considered that the fact that it had been confirmed under oath by Mr Z. had not run counter to the orders given by the first-instance court and had been necessary to give credibility to the claims made. Moreover, since the applicant had made submissions on its content, as stated by the Court of Appeal, the applicant had not suffered prejudice. Furthermore, some of the latter arguments had not been made before the domestic courts.

61. Referring to the Court’s case-law concerning the duty to give reasons, the Government considered that the decision of the first-instance court had given reasons for allowing Ms Z.’s affidavit. Even if those reasons had not been sufficient it had to be borne in mind that that evidence had not been decisive. No reasons had been given concerning F. because no official application in respect of him had been made. Lastly, in the Government’s view sufficient reasons had also been given for the rejection of the applicant’s challenge to the claim under oath made for damages by Mr Z.

2. The Court’s assessment

(a) General principles

62. According to Article 19 of the Convention, the duty of the Court is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, inter alia, Tamminen v. Finland, no. 40847/98, § 38, 15 June 2004). Therefore, the Court will not in principle intervene unless the decisions reached by the domestic courts appear arbitrary or manifestly unreasonable (see Bochan, § 61, cited above), and provided that the proceedings as a whole were fair as required by Article 6 § 1 (see Khamidov v. Russia, no. 72118/01, § 170, 15 November 2007, Anđelković v. Serbia, no. 1401/08, § 24, 9 April 2013 and Treskavica v. Croatia, no. 32036/13, § 77, 12 January 2016).

63. While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, for example, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I, and Perić v. Croatia, no. 34499/06, § 17, 27 March 2008).

64. On the other hand, whilst acknowledging the domestic judicial authorities’ prerogative to assess the evidence and decide what is relevant and admissible, the Court reiterates that Article 6 § 1 places the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties (see Khamidov, cited above, § 173) without prejudice to its assessment of whether they are relevant to its decision (see Van de Hurk v. the Netherlands, 19 April 1994, § 59, Series A no. 288, and Dulaurans v. France, no. 34553/97, § 33, 21 March 2000). An error of law or fact by the national court which is so evident as to be characterised as a “manifest error” – that is to say, an error that no reasonable court could ever have made – may be such as to disturb the fairness of the proceedings (see Bochan, § 62, cited above).

65. The Court reiterates further that, in view of the principle that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Cudak v. Lithuania [GC], no. 15869/02, § 58, ECHR 2010), the right to a fair trial cannot be seen as effective unless the requests and observations of the parties are truly “heard”, that is to say, properly examined by the tribunal (see Dulaurans, cited above, § 33; Donadze v. Georgia, no. 74644/01, §§ 32 and 35, 7 March 2006; and Dima v. Romania, no. 58472/00, § 34, 16 November 2006).

66. Also, according to the Court’s established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see García Ruiz, cited above, § 26, ECHR 1999‑I, with further references, and Ajdarić v. Croatia, no. 20883/09, § 34, 13 December 2011).

67. The requirements inherent in the concept of “fair hearing” are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as paragraphs 2 and 3 of Article 6 applying to cases of the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law, the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases (see, for example, Dombo Beheer B.V., cited above, §§ 32-33 and Jokela v. Finland, no. 28856/95, § 68, ECHR 2002‑IV). However, the Court considers it necessary, when examining proceedings that fall within the civil-law aspect of Article 6, to draw inspiration from its approach to criminal-law matters (see Dilipak and Karakaya v. Turkey, nos. 7942/05 and 24838/05, § 80, 4 March 2014).

(b) Application to the present case

68. While the Court does not usually interfere with a domestic court’s assessment of evidence, it nevertheless has taken issue with certain cases. In Dulaurans the Court found a violation of the right to a fair trial because the sole reason why the French Court of Cassation had arrived at its contested decision rejecting the applicant’s appeal on points of law as inadmissible was the result of “a manifest error of assessment” (see Dulaurans, cited above, § 25). In Khamidov, the unreasonableness of the domestic courts’ conclusion as to the facts was “so striking and palpable on the face of it” that the Court held that the proceedings complained of had to be regarded as “grossly arbitrary” (see Khamidov, cited above, § 174). In Anđelković, the Court found that the arbitrariness of the domestic court’s decision, which principally had had no legal basis in domestic law and had not contained any connection between the established facts, the applicable law and the outcome of the proceedings, amounted to a “denial of justice” (see Anđelković, cited above, § 27). In Bochan, the Supreme Court had made assertions which were palpably incorrect and which the Court construed as being “grossly arbitrary” or as entailing a “denial of justice”. Thus, the nature and the implications of the defect in the Supreme Court’s decision were such that that the impugned proceedings fell short of the requirement of a “fair trial” under Article 6 § 1 of the Convention (see Bochan, cited above, § 65).

69. Turning to the circumstances of the present case, the Court notes with perplexity the first-instance court’s conclusions based on Mr Z.’s inconsistent testimony (see paragraph 16 above concerning the domestic court’s description of such testimony) where it seems not to have taken account of all the other witness statements which raised doubts as to the veracity of his attestations (see paragraph 15 above). That judgment highlighted the various inconsistencies of Mr Z.’s testimony and noted the repetitive, far-fetched and banal arguments raised by Mr. Z which, in the same first-instance court’s view, weakened his version (see paragraph 16 above). Nevertheless, the first-instance court’s judgment makes absolutely no reference whatsoever to any other witness testimony heard during the proceedings, despite the fact that some of that evidence contradicted the statements of Mr Z. (see paragraph 15 above). The first-instance judgment, inter alia, makes no mention of the applicant’s statements to the effect that he was not involved and that Mr Z. was only acting in retaliation. Nor does the judgment refer to the evidence of the applicant’s wife and siblings which in many ways contradicted that of Mr Z. Neither did the first-instance judgment make any reference to any one of the other witnesses who had submitted an affidavit or testified at the bar and/or in cross-examination. Indeed that judgment relied solely on Mr Z.’s testimony, which the court chose to believe, irrespective of any other evidence brought before it.

70. Drawing inspiration from its approach to criminal-law matters (see paragraph 67 above), the Court considers that even had the first-instance court considered that other evidence to be incoherent, unreliable or immaterial, a comment or explanation to that effect would have been warranted. The Court reiterates that, in a criminal context, “inconsistencies between a witness’s own statements given at various times, as well as serious inconsistencies between different types of evidence ..., give rise to a serious ground for challenging the credibility of the witness and the probative value of his or her testimony; as such, this type of challenge constitutes an objection capable of influencing the assessment of the factual circumstances of the case based on that evidence and, ultimately, the outcome of the trial” (see Huseyn and Others v. Azerbaijan, nos. 35485/05, 45553/05, 35680/05 and 36085/05, § 206, 26 July 2011).

71. While it is true that the current proceedings were civil in nature, it cannot be ignored that the case in question concerned the responsibility for damage resulting from participation in a robbery. Thus the assessment of evidence is somewhat similar despite a different burden of proof being applicable. Indeed it is striking that the first-instance court while highlighting the inconsistencies of Mr Z.’s testimony, gave no reasons as to why it considered that Mr Z.’s statements remained credible and reliable. Nor did it justify those inconsistencies in any way (unlike the Court of Appeal). Such consideration was all the more necessary given that the applicant had originally not been able to identify the assailant back in 1995. The Court notes that the applicant’s name and that of his brother had been mentioned in the investigation only with regard to persons who had had access to the house and could have been familiar with it, but no identification of the brothers or the applicant as robbers had been made at the time. Given the delay in identification, which occurred only, suddenly, five years after the robbery and the fact that the identification was the main evidence on which the first-instance court relied, this evidence required a thorough examination. Nevertheless, the first-instance court in its judgment made no consideration and gave no explanations in respect of the sudden change of heart of Mr Z. which occurred in 2000 only after the applicant had lodged civil proceedings against him, despite the applicant’s highlighting of the matter repeatedly.

72. Furthermore, while the domestic court accepted the identification of the applicant, on the basis that identification could be based on mannerisms, movements and his silhouette, it did not give any consideration to the fact that the evidence produced indicated that Mr Z. was not even able to distinguish between the applicant and his brother – or at least no mention of such was made in the judgment. It is indeed disconcerting to imagine that the only objective evidence before the domestic court, namely that the applicant had had access to the victims’ house (together with other people, including his brother), fulfilled the required balance of probabilities.

73. A proper examination of the submissions, arguments and evidence adduced by the parties and adequately stating the reasons on which decisions are based are relevant aspects under the civil limb of Article 6 § 1 (see the case law references at paragraph 64 above). The Court considers that this applies equally, if not more, when imputing civil responsibility for damage arising out of criminal acts due to the harsh consequences which may ensue from such findings. The Court notes that, in certain circumstances, such proceedings may also attract some of the guarantees applicable in criminal cases such as, for example, those of Article 6 § 2 (see, for example, Vella v. Malta, no. 69122/10, § 47, 11 February 2014) and that the requirements of a fair hearing are the most strict in the sphere of criminal law (see Jussila v. Finland [GC], no. 73053/01, § 43, ECHR 2006‑XIV). The Court has previously held that, notwithstanding the consideration that a certain gravity attaches to criminal proceedings, which are concerned with the allocation of criminal responsibility and the imposition of a punitive and deterrent sanction, it is self-evident that there are criminal cases which do not carry any significant degree of stigma (ibid.). In the same vein the Court considers that, while civil in nature, cases such as the one in the present case can also carry such stigma. Thus, while all civil cases deserve the protection of Article 6 § 1, there is no doubt that in this type of case it is imperative that the domestic decisions are based on a thorough assessment of the evidence presented and that they contain adequate reasons (see general principles at paragraph 64-66 above). The present case leaves much to be desired in that connection.

74. The Court also notes that the Court of Appeal chose not to interfere with the lower court’s assessment of evidence, relying entirely on the opinion of the first-instance court. While, it did give some explanation of its own motion as to the inconsistencies in Mr Z.’s statements, no justification was put forward in relation to the testimonies of other individuals who put in doubt Z.’s credibility and his ability to recognise the applicant.

75. In its examination of such cases, it is the Court’s role to determine that the proceedings as a whole were fair as required by Article 6 § 1. Apart from the above considerations the Court considers it relevant to make the following further considerations in connection with the applicant’s specific complaints (see paragraphs 53-54 above). It reiterates that in its assessment of compliance of the procedure in question with the principle of equality of arms, which is a feature of the wider concept of a fair trial, significant importance is attached to appearances and to the increased sensitivity of the public to the fair administration of justice (see Borgers v. Belgium, 30 October 1991, Series A no. 214‑B, § 24, and Perić, cited above, §§ 24‑25).

76. The applicant complained about his inability to cross-examine one of the witnesses, namely Ms Z. The Court notes that although the applicant failed to raise the matter before the Court of Appeal, the courts at two levels of constitutional jurisdiction assessed the matter on the merits. The Court notes that the civil court at first-instance gave no specific reasons in reply to the applicant’s request to expunge Ms Z.’s statement from the record and therefore its decision to accept the testimony despite the applicant not having the opportunity to cross-examine the witness. The courts at two levels of constitutional jurisdiction assumed these reasons, concluding that the judge had acted within his discretion and that no prejudice had been caused to the applicant. The Court considers that even though Ms Z. did not identify the applicant in her testimony, she had been the only other witness present on the day of the robbery. Since her testimony was accepted, the applicant had a real interest in cross-examining her or of having her statement removed from evidence.

77. Similarly, the Court observes that the Court of Appeal left unanswered the applicant’s request to produce a witness (his brother) during the appeal proceedings and never gave a decision on the matter. While the Government argued, in line with the Constitutional Court’s finding (see paragraph 33 above), that the applicant had failed to make such an application in the proper way, the Court of Appeal made no finding to that effect, and did not state that the applicant had failed adequately to bring to their attention his intention to call his brother as a witness (compare, mutatis mutandis, Tamminen, cited above, § 39). It has not been disputed that the appeal application contained such a request including an explanation as to the relevance of the witness (ibid.). Furthermore, while the Government highlighted the exceptional nature of hearing evidence from a witness in appeal proceedings, the Court’s attention has not been brought to any specific procedural impediment which prevented the court from taking cognisance of such a request, and the Court notes that Article 208 of the Code of Organisation and Civil Procedure (see paragraph 42 above) only refers to witnesses which had not previously testified (and thus did not apply in the present case since F. had already testified during the first‑instance proceedings). Moreover, the intention of the applicant was not to hear the evidence but to juxtapose the witnesses so that the appeal court could see them, allowing it to examine, in its role of appeal court, whether there were compelling reasons which would have made it appropriate to alter the first-instance decision. Nevertheless, no attention was given to this matter by the Court of Appeal.

78. Lastly, in relation to the “late” claim for damages, the Court is ready to accept that it was duly submitted as requested by the first-instance court, and that the applicant had the possibility to make submissions and challenge its content, as well as to ask to have the court hear evidence from the jeweller. The Court cannot speculate as to what would have been the domestic court’s decision had the applicant taken the latter action. Moreover, it has not been argued that the acceptance of such types of claims confirmed on oath by the victim, as being the best possible evidence, was not the regular practice in the Maltese legal system.

79. The Court considers that the various failures mentioned above, might not individually suffice to find that the applicant had an unfair trial. Nevertheless, the Court cannot ignore the various shortcomings in the proceedings in the present case, particularly the failure to give reasons in respect of the conflicting evidence (see paragraphs 69-74 above) and in respect of the applicant’s requests which were shot down with little or no motivation whatsoever (see paragraphs 76 and 77 above).

 80. The foregoing considerations are sufficient to enable the Court to conclude that there had been a violation of Article 6 § 1 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

81. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

82. The applicant claimed 130,441.42 euros (EUR) which he was ordered to pay by the civil courts in damage together with interest of 8% on that sum, as well as EUR 11,800 representing the difference between his pension and the minimum wage for the years during which he had not been working owing to his being found unfit for work as a result of the stress caused by this incident, in respect of pecuniary damage, and EUR 60,000 in non-pecuniary damage for the stress caused by the courts’ findings despite his innocence and the ongoing pressure to sell his house at auction to be able to pay the civil damages awarded to Mr Z.

83. The Government considered the amount claimed exorbitant. Moreover, it had not been shown that this amount had already been paid as, while the victims were attempting to have the judgment enforced, it appeared that up to the date of the observations execution had been stalled. Thus, interest was surely not due on the unpaid amount. As to the remaining pecuniary damage, the Government submitted that no proof had been submitted showing that the applicant had been found to be unfit for work due to the domestic proceedings. As to the non-pecuniary damage the Government considered that in the event of a violation, EUR 5,000 would be sufficient.

84. The Court cannot speculate about the outcome of the proceedings had they been in conformity with Article 6 and therefore, an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of the guarantees of that Article (see Perić, cited above, § 33, and Dulaurans, cited above, § 43). The Court, accepting that the lack of such guarantees has caused him non-pecuniary damage which cannot be made good by the mere finding of a violation, awards the applicant EUR 10,000 in that respect, it however rejects the claim for pecuniary damage.

85. The Court reiterates that the most appropriate form of redress for a violation of Article 6 § 1 would be to ensure that the applicant, as far as possible, is put in the position in which he would have been had this provision not been disregarded (see Teteriny v. Russia, no. 11931/03, § 56, 30 June 2005; Jeličić v. Bosnia and Herzegovina, no. 41183/02, § 53, ECHR 2006‑XII; and Mehmet and Suna Yiğit v. Turkey, no. 52658/99, § 47, 17 July 2007). The Court finds that this principle applies in the present case as well. Consequently, it considers that the most appropriate form of redress would be the reopening of the proceedings, to be held in accordance with the requirements of Article 6 § 1 of the Convention, should the applicant so request (see, mutatis mutandis, Salduz v. Turkey [GC], no. 36391/02, § 72, ECHR 2008 in a criminal context, and San Leonard Band Club v. Malta, no. 77562/01, § 70, ECHR 2004‑IX concerning the independence and impartiality of a civil tribunal).

B. Costs and expenses

86. The applicant also claimed the following in costs and expenses: EUR 21,752.53 incurred in the civil proceedings; EUR 8,728.05 incurred in constitutional redress proceedings; and EUR 3,121 for the costs and expenses incurred before the Court.

87. The Government submitted that in relation to the costs of civil proceeding the applicant had been ordered to pay the victim EUR 8,836 and in any event no proof had been given to substantiate such a payment, or the payment of Government costs relating to the constitutional proceedings. As to the proceedings before this Court, the Government submitted that the sum of EUR 2,000 would be adequate.

88. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court cannot speculate on the outcome of the proceedings and as to whether or not, had he been successful, the applicant would have been dispensed from payment of costs and to what extent. In any event in the case that any eventual request for reopening of proceedings be upheld and the applicant eventually successful, it has not been submitted that the costs of the civil proceedings which the court found to be in violation of Article 6 § 1 would not be recoverable. Further, it is noted that expenses incurred in constitutional redress proceedings, if still unpaid, remain due to the Government. Regard being had to the documents in its possession and the above criteria, it considers it reasonable to award the sum of EUR 11,000 covering costs under all heads.

C. Default interest

89. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 11,000 (eleven thousand euros), plus any tax that may be chargeable to the applicant, 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 29 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena TsirliAndrás Sajó
RegistrarPresident

 

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