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. 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 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)
Full & Egal Universal Law Academy