Lexploria

Application No. 13057/87

Carmel DEMICOLI

against

MALTA

REPORT OF THE COMMISSION

(adopted on 15 March 1990)

TABLE OF CONTENTS

page

I. INTRODUCTION 1

(paras. 1-13)

A. The application (paras. 2-4) 1

B. The proceedings (paras. 5-9) 1

C. The present Report (paras. 10-13) 2

II. ESTABLISHMENT OF THE FACTS 3

(paras. 14-28)

A. Particular circumstances of the case 3

(paras. 14-26)

B. The relevant domestic law 6

(paras. 27-28)

III. OPINION OF THE COMMISSION 10

(paras. 29-53)

A. Points at issue (para. 29) 10

B. Article 6 para. 1 of the Convention 10

(paras. 30-47)

a. Applicability of Article 6 para. 1

(paras. 31-37) 10

b. Compliance with Article 6 para. 1

(paras. 38-47) 12

C. Article 6 para. 2 of the Convention 13

(paras. 48-51)

D. Recapitulation (paras. 52-53) 14

Concurring opinion of Mr. S. Trechsel 15

APPENDIX I History of the proceedings 16

APPENDIX II Decision on the admissibility 17

of the application

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is Carmel Demicoli, a Maltese citizen born in

1946 and resident in Malta. The applicant is represented before the

Commission by Dr. Giovanni Bonello, an advocate practising in Valletta.

3. The Government are represented by their Agent, Mr. Noel

Buttigieg Scicluna.

4. The case concerns the proceedings for breach of privilege

instituted against the applicant by the Maltese House of

Representatives in relation to a satirical article published in the

applicant's periodical. The application raises issues under Article 6

paras. 1 and 2 of the Convention.

B. The proceedings

5. The application was introduced on 22 May 1987 and registered

on 6 July 1987.

On 12 December 1987, the Commission decided, pursuant to Rule

42 para. 2 (b) of its Rules of Procedure, that notice of the

application should be given to the respondent Government and that they

should be invited to present before 25 March 1988 their written

observations on the admissibility and merits of the application.

The Government sent their written observations on 24 March

1988. The applicant's representative submitted the applicant's

written observations in reply on 19 May 1988.

On 11 October 1988, the Commission decided, pursuant to Rule

42 para. 3 (b) of its Rules of Procedure, to invite the parties to

make further submissions at a hearing on the admissibility and merits

of the application.

At the hearing, which was held on 15 March 1989, the applicant

was represented by Dr. Giovanni Bonello and Mr. Mario Mifsud Bonnici.

The Government were represented by Dr. Anthony Borg Barthet, Assistant

to the Attorney General of Malta, and Dr. Lawrence Quintano, Counsel

for the Republic.

6. On 15 March 1989, the Commission declared the application

admissible. The parties were then invited to submit any additional

observations on the merits of the application.

7. On 9 June 1989, the Government submitted additional

submissions on the case.

8. On 8 July 1989 and on 9 December 1989, the Commission

considered the state of proceedings of the case. On 9 March 1990,

the Commission deliberated on the merits of the application and took

the final votes in the case.

9. After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, placed itself at the

disposal of the parties with a view to securing a friendly settlement

of the case. In the light of the parties' reactions, the Commission now

finds that there is no basis on which a friendly settlement can be

effected.

C. The present Report

10. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes in plenary session, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

J.C. SOYER (Members present

H.G. SCHERMERS at the hearing)

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

The text of the Report was adopted by the Commission on

15 March 1990 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

11. The purpose of the Report, pursuant to Article 31 para. 1 of

the Convention, is

1) to establish the facts, and

2) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

12. A schedule setting out the history of the proceedings before

the Commission is attached hereto as APPENDIX I and the Commission's

decision on the admissibility of the application as APPENDIX II.

13. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. Particular circumstances of the case

14. The applicant is the Editor of the political satirical

periodical "MHUX fl-interess tal-poplu" (NOT in the people's

interest).

15. On 3 January 1986, an article appeared in the applicant's

periodical commenting on a particular parliamentary debate. Extracts

from the impugned article include the following:

"SEND IN THE CLOWN

Some felt offended that I had lately written that, during

the budget debates, I went berserk and started throwing

tomatoes at the television set. And this happened when

certain members of Parliament had not as yet spoken in the

debates. I will let your fertile imagination take its

course to imagine what I did when two of them in particular

were speaking.

THE PARLIAMENTARY CLOWN

I do not know if I shall be in breach of the Sedition Laws

if I describe a minister as a clown. But I cannot fail to

comment on Debono Grech's behaviour in Parliament. It seems

that Debono Grech deliberately tried to make us laugh. If

this is so, Debono Grech is ridiculing what is supposed to

be the highest institution of the land.

Let us see what Debono Grech was up to. His first sentence

was meant to raise some laughs as he maintained that Lawrence

Gatt, a Nationalist Member of Parliament, badly needed a pair

of spectacles. This was rather a flat joke. Then he started

calling names Bonello Dupuis [a Nationalist Member of

Parliament] and described the latter as a man who lacked

principles. Then he tried to make us laugh once again when he

referred to the killing of pigs. Anyway, he tried to play the

clown once, twice and even three times. And some of his jokes

were rather vulgar.

I felt extremely angry that the man who is representing the

people, and that includes yours truly, on agricultural

matters, was using this serious and important debate to play

the clown. Well, I thought, that if Debono Grech has the

right to speak the way he likes on the television screen, in

my home, then I am also entitled to speak my mind. And I

started booing him with all my might, and had I had enough

tomatoes, I would have used them for other purposes.

You may ask me what I did when 'il-Profs' Bartolo of Cospicua

took the microphone. First and foremost, this man is not as

yet aware that Mintoff has resigned and Bartolo still echoes

him to this very day. Secondly, you stand no chance of

finding anything worthwhile after analysing Bartolo's speech.

At least, you may find something worthwhile in Debono Grech's

speech, but you discover absolutely nothing in Bartolo's.

Let me tell you what I did when this professor stood up to

speak.

I booed this last one so heartily that the neighbours thought

that I had had an epileptic fit. To crown it all, Mrs. Grech,

that nosy parker, entered my home unannounced and without

permission and she found me on the floor in an ecstasy of

booing. She thought I had become a lunatic. Really, the

scene in front of the television was scary. Bartolo was

gesticulating and talking rubbish on the Magruvision

Television set while I lay sprawled on the floor gesticulating

like a madman. And I did all this so that I may have enough

material for 'Mhux'. To persuade Mrs. Grech that nothing was

really wrong with me I had to allow her to take my pulse

rate, examine my tongue and measure my temperature."

16. On 13 January 1986, Mr. Debono Grech and Mr. Bartolo brought

the article to the attention of the House of Representatives as an

alleged breach of privilege. On 10 February 1986 the Speaker

announced that the Chair had examined the alleged breach of privilege

and found a prima facie case of breach of privilege. The House of

Representatives proceeded to pass a motion proposed by Mr. Debono

Grech which stated that the article entitled "Mix-Xena tax Xandir"

(from the Broadcasting Scene) published in the issue dated 3 January

1986 of the applicant's periodical be deemed as constituting a breach

of privilege under Section 11(1)(k) of the Council of Government

(Privileges and Powers) Ordinance (1942 - 1983) (Chapter 179 of the

Revised Laws of Malta).

17. On 4 March 1986, the House of Representatives considered a

motion proposed by Mr. Debono Grech to direct the applicant to be

summoned by notice under Section 13(2) of the Ordinance to answer a

charge of defamatory libel under Section 11(1)(k) of the Ordinance.

The Resolution stated as follows:

"That the House in virtue of its Resolution decided in the

Sitting of 10 February 1986 that the article entitled

'Mix-xena tax-Xandir' (literally 'From the broadcasting

scene') which appeared on page 4 of 'Mhux fl-Interess

tal-Poplu' (lit. 'Not in the People's Interest') of 3 January

1986 be deemed as constituting a breach of privilege according

to Section 11(1)(k) of the House of Representatives (Powers

and Privileges) Ordinance;

The House orders Carmel Demicoli of Flat 2, Ferrini Court,

University Street, Msida, as editor of the newspaper 'Mhux

fl-Interess tal-Poplu' to appear before it in the Sitting of

17 March 1986 at 6.30 pm to state why he should not be

declared guilty of a breach of privilege according to Section

11(1)(k) of the House of Representatives (Powers and

Privileges) Ordinance;

and

The House also orders the subpoena of every witness that the

Clerk of the House will be asked to summon."

18. In the following debate, the then Leader of the Opposition,

Dr. Fenech Adami, drew attention to the wording of the motion of

10 February 1986 which he considered out of order since it did not

make it clear that there was only a prima facie case of breach of

privilege. Another member, Dr. Cassar, gave his opinion that in the

proposed motion they did not state that the applicant was guilty:

"Here we are not saying that he is guilty we are saying:

come here so that on 17 March you will say why you are

not guilty. And if even you were to convince us that

you are not guilty we all say that you are not guilty;

if you will not convince us we will say you are guilty."

The House proceeded to adopt the resolution.

19. On 13 March 1986, the applicant challenged in the Civil Court

of Malta in its constitutional jurisdiction the proceedings instituted

against him by the House of Representatives on the grounds that these

proceedings, which were penal in nature, violated his right to be

given a fair hearing by an independent and impartial court.

20. On 17 and 18 March 1986, the applicant appeared before the

House of Representatives with his lawyer. The applicant was asked

whether he pleaded guilty or not but stated that he would not answer.

He was threatened with further proceedings for contempt. One of the

members of the House, Dr. Joseph Brincat, stated on a point of order

that these procedures were to be considered as being of a criminal

nature. A Minister, Dr. Cassar, proceeded to bring forward the

evidence against the applicant, reading out the impugned article and

concluding that it insulted the two members of the House in connection

with their conduct in the House. The two members of the House

concerned were invited to comment by the Speaker and both made

statements to the effect that they considered themselves offended and

ridiculed in their capacity as members of the House.

21. On 19 March 1986, the House by resolution found the applicant

guilty of breach of its privileges. The House postponed the question

of punishment until another sitting.

22. On 16 May 1986, the Civil Court delivered judgment in favour

of the applicant. The Court in its judgment found that the

proceedings were not criminal in nature:

"The House of Representatives is not an ordinary court, more

so because of the system of checks and balances already

referred to and to which reference will again be made; it

also has quasi-judicial functions, apart from its principal

function of Legislator. And the law that contemplates the

privileges and contempt of the House (Cap. 179) is not part

of the Criminal Law of the Country. It is true, as argued

by the applicant, that there is a great resemblance between

the penalties contemplated by the Criminal Code and those

contemplated by this particular law. However, the decision

of the House is not a criminal conviction that emerges from

a decision of the Criminal Court, and the declaration of

guilt for contempt and the consequential sanctions that emerge

from such a declaration, have the same form of criminal

penalties, admonitions, payment of money, imprisonment, yet

they are not criminal convictions ..."

The Court continued:

"The House may proceed against the contempt where, among

other things, it results that:

'(k) the publication of any defamatory libel on

the Speaker or any member touching anything done

or said by him as Speaker or as a member in the

House or in a Committee thereof; (Vide Sect. 11

Cap. 179)'.

For the House to have jurisdiction to proceed against the

contempt there must be a defamatory libel (a mixed question

of fact and of law) and the law did not state that this is

a question that must be established by the House, but

something that must exist objectively; as this is so the

declaration of the existence of the defamatory libel must

firstly be made objectively by the Court, and then the House

must proceed against the contempt."

The Court concluded that the law in question (House of

Representatives (Powers and Privileges) (Chapter 179)) did not

authorise the House of Representatives of its own initiative to

define what is a defamatory libel, and if and when it acts upon a

contempt, it must act according to the principles of natural justice.

It ordered that the applicant be placed in the "status quo ante" in

which he was before proceedings were instituted against him on the

basis of breach of privilege and that no further proceedings be taken

against the applicant on the basis of the resolution and motion in

question.

23. On 13 October 1986, the Constitutional Court, on appeal,

reversed the judgment of the Civil Court finding that the Constitution

authorised Parliament to enact laws establishing the privileges,

powers and immunities of the Constitution and that accordingly Chapter

179 of the Laws of Malta was not in violation of the Constitution and

that in those circumstances the lower court had not been entitled to

look further into the matter or to give remedies.

24. On 9 December 1986, the House of Representatives summoned the

applicant before them in order to decide the penalty to be imposed

upon him. The applicant, when asked if he had anything to say, stated

through his lawyer that he had nothing to say regarding the punishment

but would comply with the House's verdict. The applicant was fined

Lm 250.

25. The applicant has not as yet paid the fine and no steps have

been taken to enforce recovery of the fine.

26. The two members of the House of Representatives referred to in

the article participated throughout in the proceedings brought against

the applicant, save that Mr. Bartolo died before the applicant was

sentenced in December 1986.

B. The relevant domestic law

27. The privileges of the House of Representatives as applicable

at the relevant time were set out in the Council of Government

(Privileges and Powers) Ordinance (1942- 1983) contained in Chapter

179 of the Revised Laws of Malta.

Section 11 provides:

"(1) The Council shall have the power to punish with a

reprimand or with imprisonment for a period not exceeding

sixty days or with a fine not exceeding five hundred pounds

or with both such fine and such imprisonment, any person,

whether a Member of the Council or not, guilty of any of

the following acts:

(a) any act of contempt of the authority of the Council

by words or gestures committed by any witness or by any

other person in the presence of the Council or of a

Committee of the Council;

(b) any insult or disrespect to the person of the

President of the Council and any insult or disrespect

to a Member of the Council even if such Member be not

present at the time of the insult or disrespect, when

in either case the insult or disrespect is proferred

or committed in the presence of the Council when sitting;

(c) any infringement of any regulations, order, or

directions made or given by the Council relating to the

admission of strangers to the Council Chamber and their

behaviour therein;

(d) any offer to or any acceptance by a Member or an

officer, of a bribe to influence him in his conduct

as such Member or officer;

(e) any assault upon, obstruction or insult of a Member

while on his way to or from the Council or on account of

his conduct in the Council, or any endeavour to compel a

Member by force, insult or menace to declare himself in

favour of or against any proposition or matter pending

or expected to be brought before the Council;

(f) the sending to a Member of the Council of any

threatening letter respecting his conduct in the Council;

(g) any assault upon, interference with, or resistance to

an officer of the Council while in the act of performing,

or on account of having performed, his duty;

(h) the creation of or participation in any disturbance in

the Council or in the vicinity of the Council Chamber

while the Council is sitting, whereby the proceedings of

the Council are or are likely to be interrupted;

(i) any tampering with, deterring, threatening, beguiling

or in any way unduly influencing any witness in regard to

evidence to be given by him before the Council or any

Committee thereof;

(j) the presenting to the Council or to any Committee

thereof of any false, untrue, fabricated or falsified

document with intent to deceive the Council or that Committee;

(k) the publication of any defamatory libel on the Speaker

or any Member touching anything done or said by him as

Speaker or as a Member in the House or in a Committee thereof;

(l) the wilful or reckless publication of any false or

perverted report of any debate or proceedings of the House

or a Committee thereof, or the wilful or reckless

misrepresentation of any speech made by a Member in the House

or in a Committee thereof.

(2) This section shall not be in derogation of the powers

conferred on the President of the Council by the Standing Orders

thereof.

(3) Any imprisonment awarded by the Council which has not

been expiated, in whole or in part, on the last day of the

session of the Council during which it was awarded, shall be

deemed to have been remitted by operation of this subsection,

as from the day immediately following the last day of that

session.

(4) For the purposes of this section 'publication' means any

act whereby any printed matter is or may be communicated to

or brought to the knowledge of any person or whereby any words

or visual images are broadcast; and 'broadcast' means the

broadcast of words or of visual images by means of wireless

telegraphy or wire or both, whether or not such words or

images are in fact received by any person.

(5) A person shall be deemed guilty of the acts mentioned in

paragraphs (j) and (k) of subsection (1) of this section if

the publication consists in the publication of such defamatory

libel, false or perverted report, or misrepresentation in

printed form in Malta, or in the distribution in Malta of such

printed matter containing such defamatory libel, false or

perverted report or misrepresentation from whatsoever place

such printed matter may originate, or in any broadcast from

any place in Malta or any place outside Malta of any such

defamatory libel, false or perverted report or

misrepresentation.

(6) In the case of a person guilty of an act mentioned in

paragraph (j) of subsection (1) of this section the House may

in addition to the punishments established in subsection (1)

of this section, order in the case of a newspaper that in a

subsequent issue thereof not later than the next but one,

and in the case of a broadcasting medium that on the day

immediately following that on which the order is given,

the motion that the accused be found guilty of such act,

approved by the House be published or broadcast as the case

may be free of charge in the same language in which the

offence was committed; and if at the time of approval of such

motion or immediately thereafter the newspaper has ceased

publication or the broadcasting medium has ceased to operate,

or in the case of any other publication, the House may in the

order or in a subsequent order, order that the motion be

published or broadcast at the expense of the person so found

guilty in another newspaper or on another medium within a

period not exceeding one month.

(7) In the case of a person found guilty of an act mentioned

in paragraph (k) of subsection (1) of this section the House

may in addition to the punishments established in subsection

(1) of this section order that the offender publish, at such

date and time as the House may establish, free of charge, in

the same newspaper or on the same broadcasting medium, as the

case may be, a statement by way of contradiction or explanation.

(8) Default of compliance with an order made under subsection

(6) or (7) of this section shall be deemed to be contempt of

the House and subject to the same penalties as provided in

subsection (1) of this section.

(9) (i) Any person who is an accomplice in any of the acts

mentioned in paragraphs (a) to (k) of subsection (1) of this

section shall be deemed to be guilty of the same acts and

shall be liable to the penalties laid down in the said

subsection;

(ii) For the purpose of this section 'accomplice' shall have

the same meaning as is assigned to it by Section 42 of the

Criminal Code:

Provided that any reference therein made to a crime shall be

construed to be a reference to the acts referred to in

paragraphs (a) to (k) of subsection (1) of this section."

28. Defamatory libel is a criminal offence under the Press Act

1974 (Act No. XL of 1974).

Section 3 of the Act provides:

"The offences mentioned in this Part of the Act are committed

by means of the publication or distribution in Malta of

printed matter, from whatsoever place such matter may

originate, or by means of any broadcast."

Section 11 of the Act provides:

"Save as otherwise provided in this Act, whosoever shall,

by any means mentioned in Section 3 of this Act, libel any

person, shall be liable on conviction:

(a) if the libel contains specific imputations

against such person tending to injure his character and

reputation, or to expose him to public ridicule or contempt,

to imprisonment for a term not exceeding three months or to a

fine (multa) not exceeding two hundred pounds or to both such

imprisonment and fine;

(b) in any other case, to imprisonment for a term

not exceeding one month or to a fine (multa)."

III. OPINION OF THE COMMISSION

A. Points at issue

29. The principal issues to be determined are:

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention in respect of the proceedings for breach

of privilege brought against the applicant in the House of

Representatives;

- whether there has been a violation of Article 6 para. 2

(Art. 6-2) of the Convention as a result of the resolutions of the

House of Representatives dated 10 February 1986 and 4 March 1986.

B. Article 6 para. 1 (Art. 6-1) of the Convention

30. The relevant part of Article 6 para. 1 (Art. 6-1) of the

Convention reads as follows:

"In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to

a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

a. Applicability of Article 6 para. 1 (Art. 6-1)

31. The Commission will first consider whether the proceedings

against the applicant for breach of privilege involved the

determination of a criminal charge within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention. The Government contend that

the charge against the applicant of breach of privilege was

disciplinary. They also rely on the decision of the Civil Court of 16

May 1986 in which the Court held that the applicant was not facing a

criminal charge.

32. As regards the criteria to apply when deciding whether or not

a particular type of offence involves a "criminal charge" within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention, the

European Court has underlined that the term is to be interpreted as

having an autonomous meaning in the context of the Convention and

not on the basis of its meaning in domestic law. While the

legislation of the State concerned is relevant, it provides no more

than a starting point in ascertaining whether there was a "criminal

charge" against a person. The prominent place given in a democratic

society to the right to a fair trial necessitates a "substantive"

rather than a "formal" approach. Regard must therefore be had to

the realities of the procedure in question in order to determine

whether there has been a "charge" within the meaning of Article 6

(Art. 6) of the Convention (see e.g. Eur. Court H.R., Engel and

others judgment of 8 June 1976, Series A no. 22, pp. 33-34, para.

80; Deweer judgment of 27 February 1980, Series A no. 35, pp. 21-22,

para. 41; Adolf judgment of 26 March 1982, Series A no. 49, p. 15,

para. 30).

33. The Court has developed specific criteria in order to

distinguish "criminal" from other possible types of offences (Engel

and others judgment, loc. cit. p. 35, para. 82):

(1) "Whether the provisions defining the offence belong,

according to the legal system of the respondent State to

criminal law, disciplinary law or both concurrently".

This fact is however not decisive.

(2) The "very nature of the offence", which is a factor

of greater importance.

(3) The "degree of severity of the penalty which the

person concerned risks incurring".

34. Applying these criteria to the present case, the Commission

observes that breach of parliamentary privilege is not formally

classified as a crime in Maltese law. The applicant has drawn the

Commission's attention to the terminology employed in certain

constitutional text books relating to the United Kingdom Parliament,

where the term "crime" is used. In view of the decisions of the

Maltese courts in this case however, the Commission is unable to find

that breach of privilege is classified as a criminal offence under

Maltese law.

35. As to the nature of the offence, which is a factor of greater

weight, defamatory libel is a criminal offence provided for in

Sections 3 and 11 of the Press Act 1974. The Commission recalls that

the Civil Court considered that the defamatory libel in Section 11 of

the Ordinance governing privileges and powers was a reference to this

offence and that it accordingly raised the same questions of fact and

law. It is also to be noted that the Ordinance makes reference to the

Criminal Code as a means of interpretation in the context of

accomplices. Breach of privilege consists of a number of various

offences - from an insult or disrespect to the Speaker during the

sitting of the House to assaults on members or officers of the House.

The Commission finds that the former type relates to the inner

regulation and smooth functioning of the institution and can be

regarded purely as a matter of internal discipline, whereas the latter

type overlaps on conduct condemned as criminal. The Commission takes

the view that defamatory libel is criminal rather than disciplinary in

nature in this context, in particular since it concerns publication

outside the House by someone unconnected with the House.

36. As regards the severity of the penalty, the applicant ran the

risk of a fine of up to Lm 500 and imprisonment of a maximum of 60

days. The criminal offence itself in the Press Act provides for a

penalty of 3 months and Lm 200 which is not appreciably different in

degree of severity of punishment. The Commission recalls that the

penalty of deprivation of liberty generally belongs to the "criminal"

sphere (Engel and others judgment, loc. cit., p. 35, para. 82). The

fact that the penalty actually imposed was not very severe does not

however deprive the charge of its criminal character.

37. The Commission therefore finds that the breach of privilege

proceedings against the applicant for defamatory libel involved the

determination of a "criminal charge".

b. Compliance with Article 6 para. 1 (Art. 6-1)

38. The Commission must next consider whether the applicant

received a fair and public hearing before an independent and impartial

tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

39. The Government contend that the House of Representatives, as

in the case of the United Kingdom, has the power to regulate its own

internal proceedings and to punish acts in contempt of Parliament or

in breach of its privileges and that it accordingly has a judicial

function which it discharges independently and impartially.

40. In determining whether a body can be considered to fulfil the

requirements of Article 6 para. 1 (Art. 6-1) in this regard, the Court

has stated that the fact that a body exercises judicial functions

does not suffice (Eur. Court H.R., Le Compte, Van Leuven and De

Meyere judgment of 23 June 1981, Series A no. 43, p. 24, para. 55).

The Court's case-law establishes that the term "independent" means

that the organ in question is independent of both the executive and

of the parties (Eur. Court H.R., Ringeisen judgment of 16 July 1971,

Series A no. 13, p. 39, para. 95). The Commission has also held that

the same independence must be established in respect of the

legislature or Parliament (No. 8603/79, Dec. 18.12.80, D.R. 22, p.

220). In determining whether a body satisfies the condition of

independence, the Court has had regard to the manner of appointment of

its members and the duration of their term of office, the existence of

guarantees against outside pressures and the question whether the

body presents an appearance of independence (see e.g. Piersack

judgment of 1 October 1982, Series A no. 53, p. 13, para. 27; Delcourt

judgment of 17 January 1970, Series A no. 11, p. 17, para. 31).

41. The Commission notes that the power of the Maltese Parliament

to impose disciplinary measures and to govern its own internal affairs

is not in issue in this application, which concerns solely the role it

played in the determination of a charge found by the Commission to be

criminal within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention. In that latter context and in light of the above

considerations, the Commission finds that the House of

Representatives, which is a legislative body and from which is

constituted the Government or executive of the day cannot, by its very

nature, be considered as a court. Further, the House cannot be

considered as independent from the parties. The Commission recalls

that the members who felt impugned by the article were responsible

for bringing the charge against the applicant and that they took part

in the proceedings and in the votes determining the applicant's guilt

and sentence. The Government submit that breach of privilege is not

an offence against a particular member but something affecting the

discipline and standing of the House as a whole. Even on the

assumption that this interpretation is correct, the House, in acting

on the affront to its own dignity, would thereby appear to act as a

victim, prosecutor and judge.

42. The concept of "impartiality" is difficult to dissociate from

that of independence. Without considering the personal prejudice or

subjective aspect, a body which fails to offer the requisite

guarantees of independence will often fail at the same time to satisfy

the objective test of impartiality, namely, that there are guarantees

to exclude any legitimate doubt as to the impartiality of the body

(Piersack judgment, loc. cit., p. 13, para. 30). This is so in the

present case.

43. The Commission also recalls that during the proceedings, on

10 February 1986, the House passed a resolution to the effect that the

House deemed that the article published in the applicant's periodical

was a breach of its privileges. On 4 March 1986, the House passed a

further resolution repeating the prior resolution and summoning the

applicant before it to state why he should not be declared guilty of a

breach of privilege.

44. The Government have submitted that these resolutions did not

intend to prejudge the case but merely established a prima facie case

which merited the commencement of proceedings. The intended meaning

of the resolutions however cannot be conclusive where the words on

their face convey another. Having regard to the contents of the

motions, the Commission finds that on their face they give the

appearance of prejudging the issue as to the applicant's guilt and

reversing the burden of proof. These motions consequently serve to

cast further doubt as to the independence and impartiality of the

House in its dealing with the charge of breach of privilege against

the applicant.

45. In all the circumstances of the present case therefore, the

Commission finds that the House of Representatives did not fulfil the

requirements of Article 6 para. 1 (Art. 6-1) of the Convention either

as to independence or as to impartiality.

46. The applicant has also complained of not receiving a fair

hearing. The question of fairness however is inextricable in this

case from the nature of the body determining the charge. The

Commission's finding above therefore renders it unnecessary to examine

this aspect of the complaint further (cf. Eur. Court H.R., Langborger

judgment of 22 June 1989, Series A no. 155, p. 17, para. 37).

Conclusion

47. The Commission concludes unanimously that there has been a

violation of Article 6 para. 1 of the Convention.

C. Article 6 para. 2 of the Convention

48. Article 6 para. 2 of the Convention provides:

"Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law."

49. The applicant has submitted before the Commission that the

motions of 10 February 1986 and 4 March 1986 violated the presumption

of innocence guaranteed by the above provision.

50. The Commission recalls however that as with the guarantees

under Article 6 para. 3, the principle of the presumption of innocence

as specifically guaranteed under Article 6 para. 2, is one of the

elements that exemplify the concept of a fair trial laid down in

Article 6 para. 1 of the Convention. In light of the Commission's

wider examination of the issues arising under Article 6 para. 1 and

its finding above on the independence and impartiality of the House of

Representatives, the Commission finds it unnecessary to examine this

issue further.

Conclusion

51. The Commission concludes unanimously that no separate issue

arises under Article 6 para. 2 of the Convention.

D. Recapitulation

52. The Commission concludes unanimously that there has been a

violation of Article 6 para. 1 of the Convention (para. 47).

53. The Commission concludes unanimously that no separate issue

arises under Article 6 para. 2 of the Convention (para. 51).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Concurring opinion of Mr. S. Trechsel

I fully agree with the conclusions arrived at by my

colleagues, but consider that the reasoning ought to stop after the

finding, in paragraph 41, of what is in my view obvious, namely, that

the House of Representatives is not a "tribunal" within the meaning of

Article 6.

Appendix I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

22.05.87 Introduction of the application

06.07.87 Registration of the application

Examination of admissibility

12.12.87 Commission's deliberations and

decision to invite the Government

to submit observations in writing

24.03.88 Government's observations

19.05.88 Applicant's reply

11.10.88 Commission's further deliberations

and decision to invite the parties

to a hearing

15.03.89 Hearing on admissibility and merits

The parties were represented as

follows:

Government:

Dr. Anthony Borg Barthet, Assistant

to the Attorney General

Dr. Lawrence Quintano, Counsel

for the Republic

Applicant:

Dr. Giovanni Bonello

Mr. Mario Mifsud Bonnici

15.03.89 Commission's deliberations and

decision to declare the application

admissible

Examination of the merits

15.03.89 Commission's deliberations on the merits

08.07.89 Consideration of the state of proceedings

09.12.89 Consideration of the state of proceedings

09.03.90 Commission's deliberations on the

merits and final votes

15.03.90 Commission's adoption of the Report

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DEMICOLI v. MALTA

DEMICOLI v. MALTA

LEXI