Communicated on 31 August 2018

THIRD SECTION

Application no. 83275/17 Joseph CALLEJA against Malta lodged on 4 December 2017

STATEMENT OF FACTS

The applicant, Mr Joseph Calleja , is a Maltese national, who was born in 1945 and lives in Qormi . He is represented before the Court by Dr J. Bonello , a lawyer practising in Valletta.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background to the case

In 1973 the applicant was the editor of a newspaper “In- niggieza ”. On 17 August 1973 he published an article entitled “ Pudina mis -Sultana a ’ la Cassar ” (Sultanas ’ pudding, Cassar style). The article claimed that the then Minister for work, employment and security impregnated a certain Ms Sultana. It also insinuated that one could go to Rome to find solutions to this situation. It ended by stating that it would keep the public informed about the matter.

Criminal proceedings were instituted against the applicant, as editor, and against the printer of the newspaper, for defamation, as well as for offending public morals under the then Press Act. By a judgment of 14 November 1973 of the Court of Magistrates as a court of criminal judicature, confirmed on appeal by a judgment of the Criminal Court of Appeal of 28 March 1974, the applicant was found guilty and sentenced to three months ’ imprisonment, and a fine of 50 Maltese Lira (approximately 116 euros (EUR)). The court ordered that its judgment be published.

The applicant spent two and a half months in prison as a result of which he thereafter suffered anxiety issues and psychological trauma including claustrophobia.

On 7 August 2012 the applicant unsuccessfully applied to the Justice Ministry for an ex gratia payment of compensation in connection with the above describe d circumstances. Subsequently, on 19 December 2012 he requested a presidential pardon. By a letter of 2 January 2014 the applicant was informed that his request was accepted in part, namely in so far as his finding of guilt would be removed from his police conduct certificate, as an act of clemency, and not because there had been an error or an injustice.

2. Constitutional redress proceedings

On 29 September 2014 the applicant instituted constitutional redress proceedings complaining that there had been a breach of his right to freedom of expression. He relied on Article 10 of the Convention and Article 41 of the Constitution of Malta.

By a judgment of 27 October 2016 the Civil Court (First Hall) in its constitutional competence found that Article 10 of the Convention was not applicable ratione temporis , but that there had been a breach of the applicant ’ s right of freedom of expression as protected by Article 41 of the Constitution of Malta.

The court noted that human rights breaches were not subject to prescription and thus the applicant could not be penalised for the timing of his action. On the merits, it considered that the penalty suffered by the applicant, namely a jail term, had not been proportionate as it had not been necessary in a democratic society, and had had a chilling effect on the applicant who thereafter stopped being a journalist. Bearing in mind that the applicant ’ s police conduct had been cleare d, it awarded the applicant EUR 5,000 in non ‑ pecuniary compensation. Given the subject matter of the case, as well as the trespass of time, each party was to bear his own costs of the proceedings.

The Government appealed and the applicant cross-appealed.

By a judgment of 12 June 2017 the Constitutional Court confirmed the first ‑ instance judgment on the merits but diminished the award of compensation to EUR 2,000.

The Constitutional Court noted that freedom of expression had to balance the interests of both parties, including the private life of an individual even though, in the present case the defamed was a prominent politician, and that the applicant had, during the criminal proceedings, admitted that he had failed to verify what he had [been told and] written which he admitted had no basis. The Constitutional Court considered that there was no doubt that the article was to be considered defamatory, especially at the time it was written, however the penalty imposed had been disproportionate.

As to compensation, it considered that although the applicant ’ s detention must have caused him to suffer anguish and distress, this suffering must have diminished over the forty years which had passed since the violation occurred. Noting that the delay in instituting proceedings had made it more difficult for the State to defend its case, but that the fact that the applicant had relied on Article 10 which was not applicable, had no bearing on the costs given that the considerations were the same under that provision, the Constitutional Court confirmed the costs as ordered at first ‑ instance. The Constitutional Court further ordered that the costs of appeal be paid in full by the applicant in respect of the cross ‑ appeal and that those of the main appeal be paid as to ¼ by the applicant and ¾ by the defendant.

Thus, according to the taxed bill of costs which showed the costs of the parties as being EUR 3,635.79 and EUR 3,624.17, respectively, the costs which had to be paid by the applicant amounted to EUR 5,969.27, to which the applicant considered had to be added EUR 1,416 of extra ‑ judicial costs.

Moreover, the applicant claimed to have incurred costs of EUR 2,360 to bring proceedings before this Court.

COMPLAINT

The applicant complains under Article 10 of the Convention that he remained a victim of the violation upheld by the domestic courts, given the low amount of compensation awarded, accompanied by an order of costs which exceeded by far such award.

QUESTIONs TO THE PARTIES

1. Bearing in mind the findings of the Constitutional Court that the applicant had suffered a breach of Article 10, and the award of compensation of EUR 2,000 which was annihilated by an order of costs amounting to more than double the non-pecuniary compensation awarded, despite the fact that the applicant was successful in the sole object of his claim, can the applicant still claim to be a vict im of a violation under Article 10?

2. Has there been a violation of Article 10 of the Convention?