FOURTH SECTION
CASE OF AJD TUNA LTD. v. MALTA
(Application no. 11314/23)
 
 
 
 
 
 
JUDGMENT
 
STRASBOURG
11 February 2025
 
This judgment is final but it may be subject to editorial revision. In the case of AJD Tuna Ltd. v. Malta,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
 Anne Louise Bormann, President,
 Sebastian Răduleţu,
 András Jakab, judges,
and Simeon Petrovski, Deputy Section Registrar,
Having regard to:
the application (no. 11314/23) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 8 March 2023 by a Maltese company, AJD Tuna Ltd. (“the applicant company”), registered in 2000, in St Paul’s Bay. It was represented by Dr S. Grech and Dr J. Refalo, lawyers practising in Valletta;
the decision to give notice of the complaint under Article 6 § 1 of the Convention (access to court) to the Maltese Government (“the Government”), represented by their Agents Dr C. Soler, State Advocate and Dr A. Falzon, Senior Advocate at the Office of the State Advocate, and to declare inadmissible the remainder of the application;
the parties’ observations;
Considering that Ms Lorraine Schembri Orland, judge elected in respect of Malta, withdrew from sitting in the case (Rule 28 § 3 of the Rules of Court);
Having deliberated in private on 21 January 2025,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns a complaint under Article 6 § 1 of the Convention (access to court) in relation to an alleged restrictive application of the domestic law by the Court of Appeal which dismissed the applicant company’s appeal. 2. The applicant company lodged proceedings against the Director for Agriculture concerning the use of the quota on bluefin tuna fishing, and requested damages suffered. On 30 July 2015 the ordinary court found against the applicant company. The latter appealed on 19 August 2015. 3. On 19 June 2020, the notice to pay the security for costs as well as the notice of the first appeal hearing, which was to be held on 30 June 2020, was served on an employee of a sister company. According to the law at the time (Article 249 of the Code of Organisation and Civil Procedure, ‘COCP’) the deposit for the security for costs was to be paid “within twelve months from the date of the notification of the amount to be deposited, or if the appeal is to be heard earlier ..., not later than two days before the date set for the hearing”. The applicant company’s director only became aware of the content of the notification late on Friday 26 June 2020 at which point he contacted his lawyer to effect payment. However, given that the court registry was closed on the weekend and Monday 29 June 2020 was a public holiday, the applicant company was unable to pay the deposit prior to the day of the appeal hearing. On the day of the hearing the applicant company, present in court through its director, informed the Court of Appeal that it could pay the deposit on the spot. Nevertheless, applying Article 249 of the COCP, the Court of Appeal declared the appeal abandoned noting that although the applicant company had been notified, it failed to pay security for costs. 4. A further request for reconsideration was also dismissed by the Court of Appeal on 24 August 2020. The applicant company had argued that the notices had not been served unto one of its employees but rather unto an employee of a company of the same economic group, at a time when the company was busy, explaining that by the time it reached the directors they erroneously thought it related to another case which had only been filed a few days prior, having the same parties, and while they informed their lawyer as soon as they took note of it, it had already been too late to make payment. However, the Court of Appeal considered that none of the two exceptions provided by the law applied in the present case. The service of the notice had been made at the address indicated by the appellant company and it had been carried out more than ten days before the first hearing took place. The directors had in fact received the notices, but were both too busy to tend to it in time and ultimately thought it pertained to another case filed, thus the non‑fulfilment of the obligation was attributable to none other than the applicant company’s lack of good management and negligence. The mere fact that it had taken five years to appoint the hearing had no bearing on its responsibility to pay the security in due time, and any repercussion on its fair trial rights was a result of its own fault. Moreover, its request for reconsideration had not been the appropriate way to challenge that final decision. 5. The applicant company instituted constitutional redress proceedings complaining, inter alia, under Article 6 of the Convention about the circumstances leading to the dismissal of its appeal, including the five-year wait for its appointment, which eventually deprived it of access to court. It brought to the attention of the courts of constitutional competence various examples of when exceptions to the procedural rules concerning the deadline to pay security for costs had been made, including on the same day of its own hearing. 6. By an appeal judgment of 10 November 2022, the Constitutional Court confirmed a violation of Article 6 § 1 in relation to the length of proceedings (awarding EUR 3,000 in non-pecuniary damage), but no violation of Article 6 § 1 regarding access to court. It considered that although it was unfortunate that the notice to pay the security for costs had been sent out so close to the hearing date, especially given that five years had passed since the appeal had been lodged, it was nonetheless the applicant company’s fault that its director had not taken proper cognisance of the content of the notification any earlier; thus, unlike other cases, there had been no justification to apply an exception. Indeed, of the three cases relied on by the applicant company, in the first, the court allowed a late payment in those circumstances but it was not clear what circumstances pertained to that case; in the second, the tax which was to be paid on the security for costs was being contested and therefore the bill at hand was not a final one; in the third, the likelihood was that the appellant in that case had not yet been formally notified with the request for payment of security for costs; and in the remaining cases the appeals were declared abandoned in the absence of exceptional circumstances. 7. In 2021 the law was amended to allow for a three-month time-limit to effect payment for security for costs. 8. The applicant company complained under Article 6 § 1 that it was denied access to a court as a result of a restrictive application of the law amounting to excessive formalism.

Outcome for Article 6: violation