Mercieca and Others v. Malta

Information Note on the Court’s case-law No. 142

June 2011

Mercieca and Others v. Malta - 21974/07

Judgment 14.6.2011 [Section IV]

Article 6

Civil proceedings

Article 6-1

Access to court

Denial of the right to appeal against a preliminary judgment: article 6 applicable; violation

Facts – The applicants were sued, personally and in their capacity as partners of an audit firm. During the proceedings, they raised a preliminary plea, which was dismissed by the court in a preliminary judgment on 1 December 2003. On 3 December the applicants sought leave to appeal, which was granted on 12 December. On 29 December the applicants lodged their appeal, but it was dismissed as being out of time. The Court of Appeal noted that while the legislator had clearly established that the time-limit for lodging an appeal against an interlocutory decree ran from the date of authorisation to appeal, in respect of an appeal against a “judgment” the legislator had made no distinction between a “judgment” and a “partial judgment”. It followed that the twenty-day time-limit which ran from the date of delivery of a judgment applied also to appeals necessitating prior leave to appeal. That decision was overturned by the Civil Court, which held that a right to appeal could not arise before leave to appeal had been given, so that the applicants had effectively been denied access to a court, in breach of Article 6 of the Convention. However, on an appeal by the Attorney General, the Constitutional Court refused to uphold the first-instance judgment after finding that, although the interpretation given to the law by the Court of Appeal had been erroneous, that did not suffice to find a violation of the Convention as the applicants had had the opportunity to appeal after the final judgment.

Law – Article 6 § 1

(a)  Applicability – According to the applicants, they had been denied an interlocutory appeal against a preliminary judgment. The latter could be equated to interim or provisional measures and proceedings. Thus, the same criteria were relevant to determine whether Article 6 was applicable. The main proceedings dealt with civil liability. Had the Civil Court upheld the applicants’ pleas in its preliminary judgment, there would have been no scope for a further determination, since the applicants’ liability would have been excluded at that stage. The interlocutory appeal would, therefore, have determined the same civil rights and obligations at issue in the main proceedings. Article 6 was, therefore, in principle applicable to the instant case.

(b)  Merits – The applicants’ time to appeal had been reduced from twenty days to nine days. While it was true that the applicants could have lodged their appeal within those nine days, the Constitutional Court had specifically acknowledged that the law had been wrongly applied by the Court of Appeal, with the consequence that the applicants’ appeal had been unfairly rejected. In these circumstances, the European Court found no reason to second guess that decision. Thus, the applicable rules had been construed in such a way as to prevent the applicants’ appeal being examined on the merits, with the consequence that their right under domestic law of access to the Court of Appeal at that point in time had been impaired. The Constitutional Court had not found a violation of Article 6 of the Convention, since the applicants could avail themselves of an appeal at a later stage of the proceedings. However, it had not been disputed that the proceedings at issue would have ended at that stage had the applicants’ appeal been heard on the merits and upheld. That eventuality would have avoided the applicants the expense and anxiety related to the continuation of burdensome court proceedings. In consequence, the European Court was of the view that an appeal at the end of the proceedings on the merits, even if that could be guaranteed under domestic law and practice, would not have sufficed to annul the consequences suffered by the applicants as a result of the wrongful dismissal of their appeal at an earlier stage. In sum, the domestic courts’ restrictive interpretation of the relevant procedural rules had denied the applicants the right to lodge an appeal.

Conclusion: violation (unanimously).

Article 41: No award.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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