Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16641/90

by A.G.

against Malta

The European Commission of Human Rights sitting in private on

10 December 1991, the following members being present:

MM.C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs.G. H. THUNE

SirBasil HALL

MM.F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs.J. LIDDY

MM.L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÃœGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 22 January 1990

by A.G. against Malta and registered on 31 May 1990 under file

No. 16641/90;

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, who lives in A., Malta, is a Maltese citizen born

in 1946. He is a company director. He is represented by Mr. Joseph

Brincat, an advocate practising in Valetta.

The facts, as submitted by the applicant, may be summarised as

follows.

The applicant was charged with customs offences of making a

statement or furnishing a document or information which to his

knowledge was false in a material particular, or recklessly making a

statement which was false in a material particular, i.e. he was accused

of making under-valuations on entries presented for the calculation of

customs duties. The goods in question were confiscated.

There were two sets of proceedings. He was convicted on 29 June

1982 by the Criminal Court of Magistrates of having presented two

customs declarations signed by him personally which were false and

sentenced to a fine of the equivalent of 1 million French Francs.

On the same day, the applicant was acquitted of similar charges

on the ground inter alia that there was no proof that the applicant had

signed the entries in question. The prosecutor appealed to the Court

of Criminal Appeal which, on 27 April 1984, referred the matter to the

First Hall of the Civil Court since the applicant had raised

constitutional issues which it was not competent to deal with.

The applicant argued that Article 13 of Act VII of 1975 relied

on by the prosecution was contrary to the presumption of innocence

guaranteed under the Constitution.

Article 13 provides, inter alia, that,

"where any offence under or against any provision contained

in any Act, whether passed before or after this Act, is

committed by a body or other association of persons, be

corporate or unincorporate, every person who, at time of

the commission of the offence, was a director ... of such

body or association, or was purporting to act in any such

capacity, shall be guilty of that offence unless he proves

that the offence was committed without his knowledge and

that he exercised all due diligence to prevent the

commission of the offence..."

Article 40 (5) of the Constitution, provides that

"... every person who is charged with a criminal offence

shall be presumed innocent unless he is proved guilty or

has pleaded guilty but provided that nothing contained or

done under the authority of any law should be held to be

inconsistent with or in contravention of this subsection to

the extent that the law in question imposes upon any person

charged as aforesaid the burden of proving particular facts

...".

The Civil Court found that Article 13 only had the effect of

placing the burden of proof of certain facts upon the person charged

and that this did not conflict with Article 40 (5) of the Constitution.

The applicant appealed to the Constitutional Court.

On 29 November 1989, the Constitutional Court dismissed the

applicant's appeal. It found that Article 13 placed the burden of

proving certain facts on the person charged but that the presumption

created by the provision was rebuttable and not unreasonable, since

otherwise it would be impossible in the majority of cases for the

prosecution to prove its case against a company. It concluded

therefore that Article 13 was not in conflict with the Constitution.

The case was then remitted to the Court of Criminal Appeal to be

decided in accordance with law. It appears however that the court has

exercised its discretion to suspend proceedings pending the application

before the Convention organs.

COMPLAINTS

The applicant complains that Article 13 of Act VII of 1975

contravenes Article 6 para. 2 of the Convention in that it deprives him

of the presumption of innocence. He submits that the legal defence

provided for in Article 13, based on the cumulative conditions laid

down in that Article, is self-contradictory. If the applicant proves

lack of knowledge it is necessarily implied that he was insufficiently

diligent. Given the contradiction, the applicant complains that it is

impossible for him to rebut the presumption of guilt contained in

Article 13.

THE LAW

The applicant complains that he has been deprived of the

presumption of innocence guaranteed by Article 6 para. 2 (Art. 6-2) of

the Convention, which provides:

Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The applicant submits that the defence provided for in Article

13 of Act VII of 1975 is self-contradictory and makes it impossible for

him to rebut the presumption of guilt imposed by it.

The Commission recalls that presumptions of fact or of law

operate in every legal system and that while the Convention does not

prohibit such presumptions in principle, Article 6 para. 2 (Art. 6-2)

requires States to confine them within reasonable limits which take

into account the importance of what is at stake and maintain the rights

of the defence (see e.g. Eur. Court H.R., Salabiaku judgment of 7

October 1988, Series A no. 141A, pp. 15-18, paras. 28-30).

The Commission notes that in the present case the legislation

provides that a director of a company is presumed guilty of an offence

committed by the company unless he proves that the offence was

committed without his knowledge and that he exercised all due diligence

to prevent the commission of the offence. The applicant was therefore

provided under the legislation with the possibility of exculpating

himself. The Commission does not consider that the conditions, which

required the applicant to prove that he had no actual knowledge of the

offence and also was not negligent in his duties as an officer of a

company, were self-contradictory or imposed an irrebuttable

presumption. The Commission further finds that the Maltese courts

enjoyed a genuine freedom of assessment in this area and that there is

no indication that Article 13 of the 1975 Act was applied to the

applicant in a manner incompatible with the presumption of innocence.

The Commission considers therefore that the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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A.G. v. MALTE

A.G. v. MALTE

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