In its judgement, the ECHR upheld the band club’s complaint under Article 6.1 (right to a fair hearing before an independent and impartial tribunal) that its request for retrial in connection with a civil case was not heard by an impartial tribunal because the same three judges who had sat in the Court of Appeal and delivered the judgement of 30 December 1993 were dealing with the retrial request.

The owners of a tenement in Hal Kirkop occupied by the band club instituted civil proceedings to regain possession of the premises.

The Court of Appeal found in the owners’ favour in a judgment handed down on 30 December 1993.

The band club then applied, unsuccessfully, for a new trial before the Court of Appeal, alleging that there had been a misinterpretation of the law.

The band club’s constitutional complaint – that the Court of Appeal, which decided on the admissibility of its claim for retrial was not an impartial tribunal – also failed.

Both the appeal and the request for retrial were heard by a panel formed by then Chief Justice Giuseppe Mifsud Bonnici, and Justices Carmel Agius and Noel Arrigo (later Chief Justice who had to resign).

This was possible since Section 814 of the Code of Organisation and Civil Procedure (COCP), Chapter 12 of the Laws of Malta, states that “...the demand for a new trial shall be made to the court by which the judgment complained of was given, and the same judges or magistrates may sit”.

In its judgement, the ECHR observed that the judges dealing with the retrial request were required to determine whether their own application of the law had been adequate and sufficient.

“Thus, the same judges were called upon to decide whether or not they themselves had committed an error of legal interpretation or application in their previous decision, being in fact requested to judge themselves and their ability to apply the law,” the judgement stated.

Those circumstances were sufficient for the court to hold that the applicant’s fears that the Court of Appeal was not impartial were objectively justified.

The court held, unanimously, that there had been a violation of Article 6.1. Maltese judge Giovanni Bonello was one of the seven judges who heard the case.

Dr Jose’ Herrera and Dr Edward Zammit-Lewis, who filed the case on behalf of the San Leonard Band Club, told The Malta Independent on Sunday that Section 814 of the COCP would have to be changed in view of the ECHR judgement.

“This provision had long created severe criticism in legal circles,” they said.

“Unlike most other countries we do not have a Third Court of Appeal or a Corte di Cassazione or a Supreme Court. We do however have the right to re-trial and this according to Article 811 et sequitur of the same Code.

“This right is reverted to in special circumstances and serves as the ultimate safeguard in order to avoid miscarriages of justice. The judgment in question will strengthen a great deal this institute (of retrial),” they told this newspaper.

This view was shared by Dr Anglu Farrugia, the Opposition’s spokesperson for Justice.

“There is no doubt that the government should, at the first opportunity, change the law to be in line with the provisions of article 6.1 of the ECHR,” he said.

“It is now not a question whether the sitting judges or magistrates agree or not, they should not take the case if they were the same ones who decided the case which is being examined for re-trial,” Dr Farrugia told The Malta Independent on Sunday.

“Both the opposition and the government should not have any problems amending this law as most of the present parliamentarians are lawyers and we all staunchly support the impartiality of any tribunal in our country,” he concluded.

However, Parliamentary Secretary in the Ministry of Justice and Home Affairs Carmelo Mifsud Bonnici said that there was no need for a change in the COCP.

He said Section 814 states that the same judges or magistrates “may” sit on the panel hearing the request for a new trial, thus there is already the possibility of having a different panel hearing the request for a re-trial if the court deems it proper.

There isn’t always the need for a different panel, Dr Mifsud Bonnici said. Sometimes it is better if the same panel hears a request for a re-trial because it would already be familiar with the facts of the case.

However, the Law Courts “would be guided” by the ECHR’s decision, as in the past when similar judgements were handed down, he said.

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