By Tobias Thienel

The Grand Chamber of the European Court of Human Rights has recently heard argument in the case of Micallef v Malta, in which the applicant complains of a lack of impartiality in a judge, on account of some rather strange things the judge has said. That obviously happens all the time at Strasbourg. The only embarrassing aspect of this case is that the judge in question, Giuseppe Mifsud Bonnici, Chief Justice of Malta in 1985, went on to join the European Court (from 1992 to 1998).

The Chamber judgment conveniently declined to give the name of the judge (come to think of it, they usually do – clever…), but the oral proceedings before the Grand Chamber brought up the name, and the (allegations of) rather odd behaviour on the judge’s part.

Specifically, the case is about the impartiality of a judge where one of the parties before him is represented by his own brother, and the other party suggests wrongdoing on the brother’s part. In just such a case, Mifsud Bonnici CJ is said to have rather lost his temper. On hearing that his brother was said to have done something objectionable, he apparently became quite angry, threatened to report this scurrilous, baseless allegation to ‘the competent authorities’ (presumably the Bar Council or similar), and suspended the hearing.

But the case did not go to the Grand Chamber because it was about a former judge of the Court. It actually raises a few rather interesting legal issues – none relating to whether the remarks of the judge had been in order, which they clearly had not.

The first legal complication arises from the fact that the applicant in Micallef was not the injured person, that is to say the person wronged by the judge’s lack of equanimity. The party to the proceedings in the courts of Malta had been his sister, who had passed away well before the complaint to the European Court was made. The Government therefore now contests before the Grand Chamber – but had not contested before the Chamber – that the applicant can claim to be a victim of any breach of the ECHR. This meant that the applicant did not simply continue an application originally brought by his late sister (see para 25 of the Chamber judgment, and also para 91 of Gradinar v Moldova). He therefore needed to have a legitimate interest of his own in the subject-matter of the case (see Gradinar, para 95). On this, the Chamber in Micallef reviewed the Court’s case-law, ascribing some relevance to the fact that the applicant had been granted standing at the domestic level (paras 26, 29). It is somewhat unclear if that can be a decisive point, given that domestic law may well be considerably more generous than Article 34 ECHR (see the Dissenting Opinion of Judge Bratza, joined by Judge Pavloschi, in Gradinar, para. 5 in fine). But the Chamber also recalled that it has discretion whether to allow a case to go forward under the criterion of standing; it may, in particular, decide to take on a case even after the death of the direct (and only) victim in order to clarify a point for the benefit of all Contracting States (see Karner v Austria, paras 25-28). This the Court decided to do in Micallef, basing its decision also on the fact that the applicant’s sister had herself brought a domestic constitutional complaint and thus had shown her willingness to raise the issue of the judge’s impartiality in court. That seems a reasonable way for the Court to exercise its discretion, but it probably does not disclose any general rule to the effect that anyone can bring a case for a deceased victim of a human rights violation who was going to go to Strasbourg.

The second problem concerned the merits of the case. Any observer could be forgiven for thinking that comments such as those made by Mifsud Bonnici CJ fairly clearly called into question his judicial independence and impartiality, violating Article 6 ECHR. But it is by no means clear that Article 6 applied at all. I should admit at this stage that I was surprised to read that the guarantee of a fair trial did not apply at all to proceedings for interim injunctions. As it is, the Commission has held that interim proceedings do not determine any rights or obligations, but only regulate a provisional, temporary state of affairs (X v United Kingdom, at 61). The Chamber judgment avoided the point by holding that the proceedings before Mifsud Bonnici CJ in the Court of Appeal were not interim in nature. Instead, the Court held, the judges were called upon to determine whether the lower court, in its procedure on the injunction, had complied with the right of both parties to be heard (audeatur et altera pars). This was a procedural question, and one about the right to be heard; there was nothing provisional about this, the Court implied. But, as Judge Bratza pointed out in his Dissenting Opinion (joined by Judges Traja and Hirvelä), this is hardly convincing: if a direct appeal from the injunction proceedings had been available, the appeals stage examining the procedural correctness of the earlier hearings would no more have attracted Article 6 than the original trial in the lower court. Nonetheless, I think Judge Bonello has the better argument in denying entirely that interim proceedings fall outside Article 6. It is true that such proceedings do not determine any rights in a definitive, lasting sense, but they certainly create obligations provisionally and for a limited length of time. Depending on how long the court will take until final judgment is delivered, that may be a rather long time. I, for one, fail completely to see why the creation of rights and obligations by a judge should be without the basic protection afforded by Article 6 purely because the parties do not stand to suffer injustice forever. No-one would argue, after all, that a court of first instance does not need to provide a fair trial because any faults would be rectified on appeal in any event, leaving the lower court’s decision with only ‘provisional’ effect. [This despite the fact that a ‘trial’ in the sense of Article 6 encompasses all appeals stages, so that a trial is only strictly unfair if by the final stage, faults have not been put right. This is the analysis ex post facto. To begin with, no judge ever knows if there is going to be an appeal, so he or she will have to act fairly to secure compliance by the State with Article 6.]

Given that I therefore disagree with the Court’s starting point in Micallef, and with some fairly old Commission case-law, I look forward to the treatment of this issue by the Grand Chamber. Watch this space.