European Court upholds claim against Malta

The European Court of Human Rights has declared as admissible a plea made by a Kirkop band club that the Court of Appeal in Malta had lacked impartiality when it decided on the admissibility of an application for retrial in a case over the issue of a requisition order.

The European Court that decided the case, which had been filed in January 2001, included Judge Giovanni Bonello.

The case dates back to December 30, 1986 when the Housing Secretary had issued a requisition order over a tenement in Kirkop that was occupied by St Leonard Band Club. The European Court's ruling says the requisition had the effect of protecting the club's occupation.

The following year the owners of the tenement instituted court proceedings asking for the requisition order to be declared null and void. This claim was rejected in October 1991 but the Court of Appeal had, in late 1993, declared the requisition null and void and ordered that the plaintiffs be reinstated in the possession of the premises within six months.

Then, in March 1994, the band club demanded a new trial before the Court of Appeal arguing that the 1993 judgment had been based on a misinterpretation of the law. The owners intervened in the proceedings insisting that the band club's claim be rejected.

Eventually the band club asked the Court of Appeal judges to abstain from the case "as they were the same judges who composed the court when the impugned judgment of December 30, 1993 was delivered".

This was rejected by the Court of Appeal in mid-March 1995 and in January of the following year it also rejected the band club's demand for a new trial.

However, in April 1995 the band club had also instituted constitutional proceedings alleging that the decision taken by the three judges sitting in the Court of Appeal when the plea to the judges' challenge had been rejected violated the European Convention of Human Rights "as the court at issue could not be considered an 'impartial tribunal'" within the meaning of the convention's provisions.

This claim was upheld by the First Hall of the Civil Court in its constitutional competence.

The owners however appealed to the Constitutional Court which, at the end of July 2000, rejected all the pleas made by the band club. It considered that all the principles raised in the case were correct and in conformity with the European Convention.

The band club thus took the case to the European Court where the matter was debated by lawyers Josè Herrera and Edward Zammit-Lewis for the Kirkop band club and by the Attorney General, Anthony Borg Barthet, for the government.

The European Court however found that the band club's complaint was admissible, "without prejudicing the merits of the case".