Court View

Alannah Dennehy

With Court View, MHREC plans on putting the spotlight on landmark human rights cases on a regular basis in order to bring to light particular human rights issues and provide an opportunity for reflection and discussion.

This week’s landmark judgement is Mastilović and others v. Montenegro (no 28754/10) decided by the European Court of Justice on the 24th of February 2022. The case related to court delays in enforcing court-approved settlements, resulting in a violation of Article 6 of the European Convention on Human Rights. Article 6 of the ECHR is the right to a fair trial, and this case relates particularly to the right to a fair trial within a reasonable time. Court delays as a violation of Article 6 are important to highlight as justice delayed is justice denied.

On the 11th of September in 1994, the 25 applicants, who were Bosnia and Herzegovina nationals, were on a bus employed by a company named Društveno Preduzeće. The bus was involved in an accident in which the 25 applicants suffered different injuries. During civil proceedings, between 1996 and 2005 the various applicants were awarded compensation in relation to non-pecuniary damages (damages that cannot be calculated in monetary terms), as well as some applicants also being awarded compensation for the costs related to the court proceedings.

On February 26th, the bus company became a joint stock corporation with the state as the majority shareholder. The Podgorica Commercial Court filed insolvency proceedings against the bus firm on May 26, 1997. When a company is in debt and unable to satisfy its financial responsibilities, insolvency proceedings are initiated. The court stopped the insolvency proceedings against the bus company on December 23, 2009, but maintained the proceedings over the bus company’s estate.

Despite compensation being awarded to the applicants during civil proceedings between 1996 and 2005, the applicants did not receive any of this compensation. This was as a result of the insolvency proceedings concerning the transition of the bus company from a planned to a market economy. As many years had passed and the applicants had not yet been awarded their due compensation by the bus company as previously decided by the court, they argued that there had been a violation of Article 6 §1 of the European Convention on Human Right. Article 6 §1- “In the determination of his civil rights and obligations … everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …”.

The state argued that the documentation given to the court on behalf of the 25 applicants by their initial representative, Mr. Simovi, was not credible. The state claimed they couldn’t be certain the current applicants were the same as those in the national court case. They claimed that some of the applicant’s signatures were written in the same handwriting, and that the names on some of the applicants’ birth certificates did not correspond to the names on the papers given to the domestic court. As the court could not verify the identity of some of the applications in the documentation submitted by Mr. Simović, he was replaced as representative by his daughter, Ms. Mr. Simović. The State believed that as Mr. Simović had been dismissed as representative of the applicants owing to his conduct, his daughter, who was a trainee at his firm, would have been aware of his conduct.

In response to this, the applicants whose identity were being questioned either left it to the court to decide the validity, or else they argued the incorrect names on the documentation were down to clerical errors by the domestic court. The other applicant’s identities had been authorized by the court. The applicants also argued it was wrong to discriminate against their new representative, Ms. Simović because she was the daughter of their previous representative.

In its assessment, the court held that just because the applicants’ new representative was a trainee at her father’s firm does not mean that she was a part of her father’s conduct, and could not hold this as a reason in itself to suggest the documents were unauthentic. While the court agreed it could not enforce the compensation for the applicants whose identity could not be confirmed, the documentation of the other applicants was admissible. Companies in debt that are undergoing a transformation from a planned to a market economy, even though they are separate legal entities, do not enjoy “sufficient institutional and operation independence from the state” to absolve the State from its responsibility.  

For these reasons, as well as that the “Government have not put forward any fact or argument capable of persuading it to reach a different conclusion” the court held unanimously that there had been a violation of article 6 of the Convention, the right to a fair hearing within a reasonable time.

The Maltese situation

Delays in court is a big problem in the legal domain in Malta, with the Malta Independent writing “Court delays worse than injustice”. Whether it be a small offence, a small business seeking due payment, or seeking correction for unfair dismissal, while “justice awaits, their life is on hold”.

In July 2021, a European Rule of Law Report stated that the length of court proceedings in Malta is of serious concern. Malta’s courts take an approximate eight times longer to reach a verdict than the European average. The European average for a Civil Court case is 141 days, while in Malta the average for a Civil Court case is 1,119 days. In 2020, it was reported that the European average for criminal cases was 122 days, while criminal cases in the Maltese courts took an average of 298 days.

In a very recent case, Jennifer Koster Vs Avukat tal-Istat, which was decided on the 26th of April 2022, this issue of court delays is highlighted. The applicant, Koster, argued that police officers subjected her to degrading treatment in 2014. Her case was dismissed by a Court in Malta five and a half years later, in 2020. However, a few months later an appeals court found in her favor. Koster then filed another case regarding the long court delays in reaching a verdict for her case, and how this delay was in itself a breach of her fundamental rights. The First Hall of the Civil Court ruled in her favor. However, they made a point that this lengthy delay was no fault of the Judge who heard the initial case, but it was due to a huge backlog of cases and a bureaucratic court system.

It is widely held that these lengthy court delays are due to Malta’s pro-longed evidence gathering stage prior to Court proceedings, as was acknowledged last year by the previous Justice Minister Edward Zammit Lewis. Currently, according to the Chamber of Advocates, amendments relating to these court delays in Malta are at an ‘advanced stage’.

Another landmark human rights case with Court View

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