Application no. 83275/17
The European Court of Human Rights (Third Section), sitting on 3 September 2019 as a Committee composed of:
Branko Lubarda, President,
Vincent A. De Gaetano,
Alena Poláčková, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 4 December 2017,
Having regard to the Committee decision of 29 January 2019,
Having regard to the submissions made by the parties,
Having deliberated, decides as follows:
1. The applicant, Mr Joseph Calleja, is a Maltese national, who was born in 1945 and lives in Qormi. At the time of the introduction of his application he was represented before the Court by Dr J. Bonello, a lawyer practising in Valletta.
2. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General.
3. The applicant complained under Article 10 of the Convention that he remained a victim of the violation upheld by the domestic courts, given the low amount of compensation awarded, accompanied by an order of costs which exceeded by far such award.
4. The complaint had been communicated to the Government.
5. After the failure of attempts to reach a friendly settlement, by a letter of 12 November 2018 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention. The applicant objected, arguing that the sum offered was too low.
6. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed ‑ which was consistent with the amounts awarded in similar cases ‑ the Court considered that it was no longer justified to continue the examination of the application (Article 37 § 1 (c)). It was also satisfied that respect for human rights as defined in the Convention and the Protocols thereto did not require it to continue the examination of the application (Article 37 § 1 in fine). Thus, while emphasising that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008), the Court decided to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention (see for details Callejjav. Malta, Committee decision, no. 83275/17, 29 January 2019).
7. By a letter of 26 May 2019 the applicant requested the Court to restore the application to the list of cases as provided for in Article 37 § 2 of the Convention which reads as follows.
“The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”
A. The parties’ submissions
8. The applicant submitted that the three month deadline, set in the Court’s strike-out decision, had expired on 21 May 2019 and he had still not received the amount of compensation referred to in the unilateral declaration. He noted that, without his knowledge or authorisation, the Government had agreed to pay his lawyer who had no mandate to receive such sums (but only to represent him in the proceedings before the Court). His lawyer had then deducted what he estimated were his fees – which in the applicant’s view were far in excess of what had been agreed – and sent the applicant a cheque for the remaining amount. The applicant refused to cash the cheque and complained to his lawyer. On 14 and 15 March 2019, the applicant’s lawyer informed him that he did not wish to correspond with him anymore.
9. The applicant submitted that (in its letter) the Court had expressly indicated to the lawyer that he should forward the applicant’s bank account to the Government Agent to enable payment and that, despite those clear instructions, his lawyer unilaterally contacted the Government demanding direct payment into his account, without informing the applicant. He noted that while that correspondence indicated that a copy had been sent to the applicant, this was not true. Given the Court’s instructions, the applicant considered that the Government should have verified the lawyer’s mandate to receive such sum. They, however, had not done so and had gone against the regular practice of paying the applicant directly.
10. The Government submitted that they had received a letter from the lawyer stating that payment should be made directly to his bank account. They effected such payment on 4 March 2019 on the basis of the authority the applicant had signed on 29 November 2017 when introducing his application with the Court. They considered that it was not for them to doubt any information submitted by the lawyers, who, in the domestic system, once engaged were considered as the mandatary of the client.
B. The Court’s assessment
11. Even after it accepts a unilateral declaration and decides to strike an application (or part thereof) out of its list of cases, the Court reserves the right to restore that application (or part of the application, as appropriate) to its list as provided for in Article 37 § 2 of the Convention and Rule 43 § 5 (former Rule 44 § 5) of the Rules of Court. It is therefore not uncommon practice for the Court to indicate specifically at the end of its strike‑out decision that it may decide to restore the application (or part thereof) to its list of cases in the event of failure by the Government to comply with the terms of their unilateral declaration as accepted by the Court (see, for example, Canbek v. Turkey (dec.), no. 5286/10, 13 January 2015; Schulz v. Germany (dec.), no. 4800/12, 31 March 2015; Bonomo and Others v. Italy (dec.), nos. 17634/11 and 164 other applications, 9 April 2015; and Union of Jehovah’s Witnesses and Others v. Georgia (dec.), no. 72874/01, 21 April 2015). However, the Court has rarely restored a case to its list of cases following a strike-out decision made in the light of a unilateral declaration (see, as one example, Aleksentseva and Others v. Russia (nos. 75025/01, 75026/01, 75028/01, 75029/01, 75031/01, 75033/01, 75034/01, 75036/01, 76386/01, 77049/01, 77051/01, 77052/01, 77053/01, 3999/02, 5314/02, 5384/02, 5388/02, 5419/02 and 8192/02, decisions of 4 September 2003, 23 March 2006, and judgment of 17 January 2008, §§ 14-17).
12. It follows that a Government’s unilateral declaration may be submitted twice to the Court’s scrutiny. Firstly, before the decision is taken to strike a case out of its list of cases. Secondly, after the strike-out decision the Court may be called upon to supervise the implementation of the Government’s undertakings and to examine whether there are any “exceptional circumstances” (Rule 43 § 5 of the Rules of Court) which justify the restoration of the application (or part thereof) to its list of cases (see, Jeronovičs v. Latvia [GC], no. 44898/10, § 69, 5 July 2016.
13. The Court considers that for the purposes of payments related to unilateral declarations, in the great majority of cases, it is the applicant, the victim of the violation, who is to be considered as the beneficiary of the sums due. Therefore, it is in principle to him or her that payment must be made, unless a special request is made during the proceedings before the Court (as with the case of judgments, see, for example, Denisov v. Ukraine [GC], no. 76639/11, § 148, 25 September 2018 and the Practice Directions to the Rules of Court concerning just satisfaction, under the headingpayment information). However, if the applicant is represented by a lawyer, it is not inconceivable for payment to be made to the lawyer. Depending on the relevant rules and practices in the domestic system, payment to the legal representative may be made either on the basis of a specific power of attorney given by the applicant to this end, or on the basis of the general power of attorney made to the Court in relation to the proceedings before it.
14. In the present case the Court notes that it is not disputed that the Government have paid the sums, referred to in the declaration and due to the applicant, to his lawyer. The Court considers that although a degree of circumspection is expected of Governments when proceeding to payment, it does not appear that, in the present case, there were sufficient reasons to doubt the applicant’s lawyer’s actions. The fact that the latter subsequently refused to forward the relevant payment to his client cannot therefore be considered to reflect negatively upon the Government.
15. The Court recalls that the conduct of the case is essentially a matter between the defendant and his or her legal representative. It follows that, in the present case, the dispute arising between the applicant and his former lawyer – without prejudice to any proceedings the applicant may undertake domestically against his lawyer – does not amount to “exceptional circumstances” which justify the restoration of the application to its list of cases.
For these reasons, the Court, unanimously,
Decides to refuse the request to restore the application to the Court’s list of cases.
Done in English and notified in writing on 26 September 2019.
Stephen Phillips Branko Lubarda