Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20608/92

by Lino DeBONO

against Malta

The European Commission of Human Rights (First Chamber) sitting

in private on 2 December 1992, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

E. BUSUTTIL

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, Secretary to the First Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 3 August 1992 by

Lino DeBono against Malta and registered on 11 September 1992 under

file No. 20608/92;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Maltese citizen born in 1943 and resident in

Gozo. The facts as submitted by the applicant may be summarised as

follows.

In a judgment dated 17 November 1988 in criminal proceedings

against X., the magistrate Dr. M. referred impliedly to the applicant

as having committed a criminal offence:

"D. was a victim of a very serious offence committed by more than

10 persons in a public office, namely the Office of the Public Works

Department, in which offence partook two persons who are People's

Deputies who subsequently lodged a false report with the Police".

The applicant alleged that it was well-known that he was one of

the Deputies referred to. He had never been charged or prosecuted with

regard to the offence referred to. The magistrate's reference was

reported in the newspapers.

The applicant instituted libel proceedings against the

newspapers, who pleaded that they were reporting court proceedings

which attracted privilege.

The applicant then filed an application in the Civil Court (First

Hall) claiming a remedy in that he had a right to protect his

reputation and that the magistrate had violated this right.

The Civil Court held on 4 October 1989 that the magistrate was

not actionable, a judge being protected by absolute privilege for

anything said or done by him in the exercise of his functions.

The applicant appealed to the Constitutional Court which on

19 February 1990 upheld the decision of the Civil Court, basing itself

on the principle that the independence and impartiality of the

judiciary would be annihilated if judges were liable to be sued in

respect of their functions.

COMPLAINTS

The applicant complains of violation of Article 6 paras. 1, 2,

3(c) and (d) of the Convention in that a magistrate declared him guilty

of an offence in criminal proceedings in which he was not a party and

could not, inter alia, defend himself or examine witnesses on his

behalf.

The applicant claims that he has no remedy in respect of his

complaints contrary to Article 13 of the Convention.

THE LAW

The applicant complains that a magistrate declared him guilty of

an offence in criminal proceedings to which he was not a party. He

invokes Article 6 paras. 1, 2, 3 (c) and (d) (Art. 6-1, 6-2, 6-3-c,

6-3-d) and Article 13 (Art. 13) of the Convention.

The Commission recalls that the applicant first wrote to the

Commission on 2 May 1990. No reply was received to the Secretariat's

request for copies of court decisions. The applicant did not write

again until 3 August 1992.

The Commission has therefore examined the question of the date

of introduction of the present application for the purposes of

calculating the running of the six-month period under Article 26

(Art. 26) of the Convention.

In accordance with its established practice, the Commission

considers the date of the introduction of an application to be the date

of the first letter indicating an intention to lodge an application and

giving some indication of the nature of the complaint. However, where

a substantial interval follows before an applicant submits further

information as to his proposed application, the Commission examines the

particular circumstances of the case in order to decide what date shall

be regarded as the date of introduction with a view to calculating the

running of the six-month period set out in Article 26 (Art. 26) of the

Convention (see e.g. No. 4429/70, Dec. 1.2.71, Collection 37 p. 109).

The Commission has regard in this context to the purpose of the

six-month rule which is to promote security of the law, to ensure that

cases raising issues under the Convention are dealt with within a

reasonable time and to protect the authorities and other persons

concerned from being under uncertainty for a prolonged period of time.

The Commission's case-law also establishes that it would be

contrary to the spirit and the aim of the six-month rule set out in

Article 26 (Art. 26) if, by any initial communication, an application

could set into motion the proceedings under the Convention and then

remain inactive for an unexplained and unlimited length of time (see

e.g. No. 10626/83, Dec. 7.5.85, D.R. 42 p. 205). The Commission has

therefore rejected applications where an applicant submitted an

application more than six months after the date of the final decision

when there were no special circumstances suspending the running of this

period. It would be inconsistent with the aim and purpose of the six-

month rule to deviate from this rule in a situation where an

application has been introduced under Article 25 (Art. 25) of the

Convention within six months from the final decision, or act complained

of, but thereafter not pursued.

In the present case the Commission recalls that over two years

had passed before the applicant resumed correspondence with the

Commission in spite of the Secretariat's request for copies of the

relevant court decisions. The applicant has given no explanation for

this delay.

In light of these circumstances, notwithstanding the applicant's

initial communication of 2 May 1990, the Commission considers the date

of introduction of the application to be 3 August 1992. Since the

final decision concerning the applicant's complaints was the decision

of the Constitutional Court dated 19 February 1990, it follows that the

application has been introduced out of time and must be rejected under

Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber a.i. President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

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DeBONO v. MALTA

DeBONO v. MALTA