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
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)