Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13057/87

by Carmel DEMICOLI

against Malta

The European Commission of Human Rights sitting in private on

15 March 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. H.C. KRÜGER, 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 May 1987

by Carmel DEMICOLI against Malta and registered on 6 July 1987 under

file No. 13057/87;

Having regard to:

- the first report provided for in Rule 40 of the Rules of

Procedure of the Commission;

- the observations submitted by the respondent Government on

24 March 1987 and the observations in reply submitted by the applicant

on 19 May 1987;

- ii -

13057/87

- the second report provided for in Rule 40 of the Rules of

Procedure of the Commission;

- the submissions made by the parties at the hearing on 15 March

1989;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as agreed by the parties may be

summarised as follows:

The applicant is a Maltese citizen born in 1946 and resident

in Malta. He is the Editor of the political satirical periodical

"MHUX fl-interess tal-poplu" (NOT in the people's interest).

On 10 February 1986 the House of Representatives (the Maltese

Parliament) resolved that an article entitled "Mix-Xena tax Xandir"

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

1986 of the applicant's periodical constituted 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).

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 behaviour in Parliament. It seems that G

deliberately tried to make us laugh. If this is so, G is

ridiculing what is supposed to be the highest institution

of the land...

I booed this last one so heartily that the neighbours thought

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

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. B 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. G that nothing was

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

rate, examine my tongue and measure my temperature."

On 4 March 1986, the House of Representatives upon a motion

moved by Mr. Joseph Debono-Grech, a Minister of the Government and one

of the two members who felt libelled by the article published in the

applicant's newspaper, resolved to direct the applicant to be summoned

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

under Section 11(1)(k) of the Ordinance. Section 11(1)(k) provides:

"11.(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 -

(k) the publication of any defamatory libel on the

Speaker or any Member in the House or in a Committee

thereof;"

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 violated his right to be given a fair hearing

by an independent and impartial court.

Meanwhile, on 19 March 1986, after the applicant had appeared

before the House, the House had by resolution found him guilty of

breach of its privileges.

On 16 May 1986, the Civil Court delivered judgment for the

applicant placing him in the position he was prior to the proceedings

being taken against him by the House of Representatives and ordering

that no further proceedings be taken against him on the basis of the

two resolutions of the House of Representatives.

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

reversed the judgment of the Civil Court in effect reviving the

parliamentary proceedings against the applicant.

On 9 December 1986, the House of Representatives found the

applicant guilty of the publication of a defamatory libel on Mr.

Joseph Debono-Grech and Mr. Freddie Bartolo and fined the applicant

Lm 250.

When the charge was read out to the applicant, he chose to

remain silent but was threatened with further proceedings for contempt

of Parliament. During the course of proceedings the applicant alleges

that he and his lawyer were abused and several members of Parliament

declared that proceedings had been taken against the applicant to make

an example of him to all and sundry. When the House of Representatives

deliberated as to the guilt of the applicant and as to the punishment

to be imposed on him, the applicant was not allowed to be present.

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

been taken to enforce recovery of the fine.

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.

Malta ratified the Convention and the Government of the

Republic of Malta recognised the competence of the Commission to deal

with applications from individuals for the period from 1 May 1987 to

30 April 1992. This application was introduced on 22 May 1987 and

registered on 6 July 1987.

With effect from 19 August 1987, which was subsequent to the

time when the applicant exhausted his domestic remedies and made his

application to the Commission, a new domestic law of Malta, the

European Convention Act 1987, incorporated the Convention into the

domestic law of Malta. Section 7 of that Act provides:

"No contravention of the Human Rights and Fundamental

Freedoms committed before 30 April 1987 shall give rise to

an action under ... this Act".

COMPLAINTS

The applicant claims that his rights under Article 6 para. 1

of the Convention have been violated in a number of ways and that his

right to the presumption of innocence under Article 6 para. 2 has also

been violated. In particular he claims that he has had criminal

charges laid against him and that these have been dealt with by the

House of Representatives, a body which is not a "tribunal" within the

meaning of Article 6 para. 1 of the Convention. Further he claims

that the House was not independent and impartial because its

proceedings were initiated by one of its members who had a direct

interest in the subject-matter of those proceedings and because the

House of Representatives acted as both accuser and judge in these

proceedings. He claims that the hearing he was given was not fair

because of the abuse offered to him and his lawyers and because of the

threats made to him during these proceedings of the possibility of

further proceedings for contempt of Parliament. He also claims that

his exclusion from some of the proceedings meant that they were not

public.

He claims that his right to the presumption of innocence under

Article 6 para. 2 of the Convention were breached by the resolutions

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

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 May 1987 and registered

on 6 July 1987. On 12 December 1987, the Commission decided to bring

the application to the notice of the respondent Government and to

invite them to submit written observations on its admissibility and

merits pursuant to Rule 42 para. 2 (b) of the Rules of Procedure.

The observations of the respondent Government were submitted

on 24 March 1987 and the observations in reply submitted by the

applicant on 19 May 1987.

The Commission resumed its examination of the admissibility of

the application on 11 October 1988 and decided, pursuant to Rule 42

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

further oral submissions at a hearing on the admissibility and merits

of the application.

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

were represented as follows:

For the respondent Government

Dr. Anthony Borg Barthet Assistant to the Attorney General

Dr. Lawrence Quintano Counsel for the Republic

For the applicant

Dr. Giovanni Bonello Advocate

Mr. Mario Mifsud Bonnici Legal Procurator

Mr. Carmel Demicoli Applicant

THE LAW

The applicant complains that the proceedings for breach of

privilege brought against him before the Maltese House of

Representatives violated his rights under Article 6 para. 1 (Art. 6-1)

of the Convention. He submits that the charges were criminal in

nature and that the House of Representatives did not constitute an

"independent or impartial tribunal" within the meaning of Article 6

para. 1 (Art. 6-1). He further complains that he did not receive a

fair hearing before the House and that his right to presumption of

innocence guaranteed under Article 6 para. 2 (Art. 6-2) of the

Convention was breached by the resolutions of 10 February 1986 and 4

March 1986 passed by the House.

The Government argue that the application is incompatible

ratione temporis and also that the applicant has failed to comply with

the requirements of Article 26 (Art. 26) of the Convention as regards the

introduction of the application within six months of the final

decision and as regards the exhaustion of domestic remedies. Even

assuming that this was not the case, the Government further submit

that the applicant's complaints fall outside the scope of Article 6

(Art. 6) of the Convention, since they concern the determination of a

disciplinary rather than a criminal charge.

The Commission has examined each of these issues in turn.

a) Ratione temporis

The Government argue that the Commission is incompetent to

review applications alleging violations of the Convention committed

prior to 1 May 1987 and refer to Section 7 of Act XIV of 1987 which

states that no contravention of human rights committed before 30 April

1987 shall give rise to an action under the Act.

The competence of the Commission however is concerned only

with the Maltese declaration under Article 25 (Art. 25) of the

Convention and not with the terms of the statute incorporating the

Convention into domestic law. The Maltese declaration is not limited

by way of time or stated to be prospective only. The Commission

recalls that in the case of De Varga-Hirsch v. France (No. 9559/81,

Dec. 9.5.83, D.R. 33 pp. 158, 209-11) it considered the effect of the

French declaration and held that in the absence of an express

limitation defining the past temporal scope of the right of individual

petition, the Commission had jurisdiction to consider complaints

predating the declaration. The Commission finds therefore that it has

jurisdiction ratione temporis in the present case to deal with the

applicant's complaints against Malta.

b) Article 26 (Art. 26) of the Convention

The Government argue that since the applicant was found guilty

of contempt by the House of Representatives on 19 March 1986 and the

application was only introduced on 22 May 1987, the applicant has

failed to introduce his complaints within the requisite six months

period. They also submit that the applicant has in any case failed to

exhaust domestic remedies, since he failed to defend himself properly

or to seek a declaration that the fine was not payable.

As regards the six months rule, the Commission recalls that

while indeed the applicant was found guilty of breach of privilege on

19 March 1986, the proceedings were suspended pending the outcome of

the constitutional action instituted in the courts by the applicant.

Following the Constitutional Court's decision on 13 October 1986, the

proceedings before the House of Representatives recommenced and the

applicant was again summoned before it on 9 December 1986 and

sentenced to a fine. Since it appears that the House could have

before this decided to revoke or reverse its previous decisions, the

Commission finds that the date of sentencing, i.e. 9 December 1986,

must be taken as the culmination of the proceedings against him and

the final decision for the purposes of Article 26 (Art. 26) of the

Convention. It follows that the application, introduced on 22 May

1987, was made within the six months time limit.

As regards non-exhaustion, the Commission recalls that Article

26 (Art. 26) of the Convention only requires the exhaustion of such

remedies which relate to the breaches of the Convention alleged and at

the same time can provide effective and sufficient redress. An

applicant does not need to exercise remedies which, although

theoretically of a nature to constitute a remedy, do not in reality

offer any chance of redressing the alleged breach (cf. No. 9248/81,

Dec. 10.10.83, D.R. 34 p. 78).

It is furthermore established that the burden of proving the

existence of the available and sufficient domestic remedies lies upon

the State invoking the rule (cf. Eur. Court H.R., Deweer judgment of

27 February 1980, Series A no. 35, p. 15, para. 26 and Commission's

decision No. 9013/80, Dec. 11.12.82, D.R. 30 p. 96 at p. 102).

In the present case, the Commission finds no indication that

the applicant would have any possibility of bringing proceedings to

nullify the proceedings brought by the House of Representatives. The

Commission also finds no substance in the allegation that the

applicant failed to exhaust domestic remedies by failing to defend

himself properly in those proceedings or by failing to seek a

declaration that the fine was not payable. Neither of these proposed

remedies would in fact offer any redress against the alleged

violations. Accordingly, the application cannot be declared

inadmissible for non-exhaustion of domestic remedies.

c) Article 6 paras. 1 and 2 (Art. 6-1-2) of the Convention

The Government submit inter alia that the applicant's

complaints fall outside the scope of Article 6 paras. 1 and 2

(Art. 6-1-2) of the Convention since they involve disciplinary charges

concerning the internal discipline and effective functioning of the

House rather than the determination of criminal charges. They refer

to the decisions of the Maltese courts which held that the charge that

the applicant faced was not criminal. They contend that in any case,

even if this was not the case, the applicant's complaints are

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

(Art. 27-2) of the Convention.

The applicant argues that breaches of privilege are in fact

classified as crimes and that in dealing with the charges, the Speaker

of the House of Representatives and other members considered the

proceedings as criminal in nature. The applicant also relies on the

penalties attached to breach of privilege - maximum of Lm 500 fine and

60 days imprisonment - as indicating the criminal nature of this

offence. He argues that in determining this criminal charge the House

of Representatives did not and could not constitute an impartial or

independent tribunal as required by the provisions of the Convention.

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

"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."

Article 6 para. 2 (Art. 6-2) of the Convention provides :

"Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law."

The Commission has made a preliminary examination of the

parties' observations on the issues arising under these provisions.

It considers that the applicant's complaints raise issues of fact and

law which are of such complexity that their determination should

depend upon a full examination of the merits. The application cannot

therefore be declared inadmissible as being manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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DEMICOLI v. MALTA

DEMICOLI v. MALTA

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