GATT v. MALTA

Communicated on 4 September 2018

FOURTH SECTION

Application no. 46466/16
Grace GATT
against Malta
lodged on 5 August 2016

STATEMENT OF FACTS

The applicant, Ms Grace Gatt, is a Maltese national, who was born in 1968 and lives in Naxxar. She is represented before the Court by Dr J. Brincat, a lawyer practising in Marsa.

A. 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

The applicant joined the Police Force on 14 June 1990.

On an unspecified date her son fell seriously‑ill and needed to be flown to the United Kingdom several times. For this purpose the applicant and some of her colleagues organised a collection of funds in respect of which no permission had been requested. As a result, in February 1999 (or 28 May or 2 June 2001), the applicant was suspended from her duties.

On 30 July 2001 her request to the Permanent Secretary of the Office of the Prime Minister for her to travel abroad in connection with her son’s illness was accepted.

(a) Criminal proceedings (first set)

In view of the above, on 15 February 2001 the applicant was charged before the Court of Magistrates as a court of criminal judicature of fraud and fund collection without prior authorisation. On an unspecified date she was found guilty of the latter, but not the former and was put on probation (an order requiring the offender to be under the supervision of a probation officer for a specified period) for six months.

During these proceedings the applicant often requested the court to grant leave for her to leave the country in connection with her son’s illness and was granted permission.

(b) Subsequent events

Given the precarious situation which ensued from the applicant’s suspension (between June 2001 and November 2005 she was only receiving half her salary), she started working, inter alia, as a private investigator, without requesting permission from the Permanent Secretary of the Ministry. Neither had she requested the same administration any authorisation to leave the country.

Amongst the cases she was working on, was a case concerning the daughter of a Maltese woman who was kidnapped and taken to Syria. The applicant flew to Syria and managed to trace them and brought them back to Malta. In this connection the applicant gave various interviews to the papers and also on one occasion, on 6 January 2006, on a television programme. Another police officer had also been present on the television programme (as had been requested of him by the Commissioner of Police “CoP”). The scope of the interview was to raise awareness about the problems faced by Maltese women who marry in a culture different to theirs. According to the applicant during the interview she did not speak as a member of the Police Force.

(c) Criminal proceedings (second set)

A week after the television interview the applicant was arrested for having acted as a private investigator without the relevant licence. By a judgment of 23 May 2007, following her guilty plea, she was found guilty as charged, aggravated by the fact that she was a police officer, and was given a suspended sentence of one year imprisonment.

Her appeal was dismissed on 20 September 2007.

2. Disciplinary proceedings

In the meantime, two weeks after the interview she had also been notified that she was being accused of having i) put the Police Force in disrepute; ii) gone abroad without permission from the Public Service Commission (PSC) (Regulation 12 (1) of the Rules of Discipline); iii) undertaken private work without permission contrary to Article 7.3 of the Public Service Management Code; iv) appeared on television without the permission of the CoP contrary to his circular GHQ/47/2002.

The CoP informed her that an Internal Board of the Police (hereinafter “the board”) would be put together to examine the accusations against her, and that the board’s report would be sent to the PSC to take a decision on the matter. The applicant complained to the CoP that the members of the board he was appointing could not be impartial or independent given that they were his subordinates.

Nevertheless, the board was put in place, heard the case, and found the applicant (who had been legally represented throughout the proceedings) guilty of the disciplinary charges against her. According to the applicant, the case had focused on the fact that the applicant had been abroad without the permission of the PSC.

The board’s report having been passed on to the PSC, were fifteen witnesses were heard, on an unspecified date, the PSC recommended to the Prime Minister to dismiss the applicant. On 21 December 2006 the Prime Minister approved the dismissal with immediate effect and as a result of this decision the applicant lost half her salary for the duration of her suspension as well as any future salary. On 22 October of an unspecified year the applicant requested that her case be revised but the PSC rejected her request.

3. Constitutional redress proceedings

The applicant instituted constitutional redress proceedings complaining under Articles 10, 14 in conjunction with Article 6 and Article 13 of the Convention and the corresponding articles of the Constitution. Under Article 10 of the Convention she complained about the circular or memo issued by the Police Commissioner requiring prior permission to attend a television programme, claiming that her right to freedom of expression had been breached as a result of the rules which had been applied to her while she was not on duty. Relying on Articles 6 and 14 she complained about the unilateral decision to dismiss her while other police officers who had committed far worse crimes had solely been suspended and then reinstated. She relied on various examples of police officers i) DS who had beaten up a tourist and had been found guilty and sentenced to four months imprisonment suspended for a year, who had been allowed to retire after twenty‑five years of service; ii) AL who had been demoted as a result of a made up act of courage, and who retired before criminal proceedings against him had been instituted; iii) JPA who had also been allowed to retire before being charged with drug trafficking and; iv) AB who had also been allowed to retire before being charged with theft. Invoking Article 13 she complained that there was no remedy against the decision of the Public Service Commission save that of a constitutional nature. Lastly, she requested the court to award her redress including a declaration that Regulation 12 [10] of the Public Service Procedure and Discipline Regulations (hereinafter “the Regulations”) was in breach of the revenant articles of the Convention and the Constitution and to annul the decision in her regard.

(a) First‑instance

By a judgment of 14 July 2015 the Civil Court (First Hall) in its constitutional competence rejected all her claims.

It considered that as from her enrolment into the Police Force the applicant voluntarily made herself subject to the Police Act and the Regulations. The latter also applied to police officers who had been suspended on half pay.

The court considered that the applicant was complaining under Article 6 of the impartiality and independence of the board and the PSC. Having examined all the evidence produced, it found that although the proceedings before the board could raise doubts as to impartiality (“jbagħti fl-apparenza ta’ mparzjalita”), the proceedings before the PSC could not be in breach of Article 6 since they had respected the principle of audi alteram parte. Neither could it be said that the case had been examined in a hurry focusing solely on whether or not the applicant had been abroad without permission. Although it was unfortunate that the members of the board who investigate, hear and establish facts are also police officers answerable to the CoP, these persons had taken an oath of impartiality before the Attorney General in respect of the specific appointments. The court noted that these were persons who usually would have a lot of experience and who were trusted by the members of the Police Force. As to the PSC, the court held that, although the Constitution provided that it was not obliged to give a fair hearing and that the exercise of its functions was not questionable before any court, domestic case-law had established that the PSC immunity from judicial action was not absolute and that the PSC had a duty to comply with procedural rules and observe the principles of natural justice, and they could not act ultra vires. ECtHR case-law had also evolved, opening the applicability of Article 6 to police officers in certain cases. However, in the light of the principles established in Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, § 62, ECHR 2007‑II), the present cases did not fulfil the two criteria necessary to make Article 6 applicable. Indeed the charges issued against the applicant called into question “that special bond of trust and loyalty” and the PSC’s actions were not subject to any review, thus there was no violation of Article 6.

Under Article 14 the court found that the applicant had failed to give an example of a case with circumstances identical to hers. Moreover, unlawful acts could not be justified by claiming discrimination.

As to the incompatibility of Regulation 12 (10) of the Regulations with Article 44 of the Constitution and Articles 2 §§ 2 and 3 of Protocol No. 4 to the Convention, it noted that according to the Police Act and the Regulations of the PSC a police officer was a public officer and Article 44 of the Constitution made specific restrictions in that case. Further, in the court’s view requiring permission to travel was not equivalent to being denied the possibility to travel, it followed that the invoked provisions were not violated.

Similarly Article 10 had not been violated as the applicant had not applied for permission to participate in the television programme as required by circular of the CoP GHQ/47/2002, which was different to her being denied such permission.

As to Article 13, while the court sympathised with the applicant’s ordeal, given that all her claims had not resulted in a violation, there needed be no remedy/redress needed to be available/given to the applicant (“Il-Qorti ma tqisx li hemm xi rimedju li għandu jingħata lill-istess rikorrenti”).

(b) Appeal

The applicant appealed claiming i) a breach of Article 6 of the Convention in so far as there had not been an impartial tribunal to decide on the accusations raised against her; not only had the board been subordinate to the CoP, but the CoP had put pressure on the Chairman of the board to find for the dismissal of the applicant; ii) a breach of Article 14 in conjunction with Article 6 of the Convention, noting that her claim had referred to what constituted bringing the police in disrepute; iii) that Regulation 12(10) of the Regulations was incompatible with Article 2 §§ 2 and 3 of Protocol No. 4 to the Convention, in so far as it required permission, as opposed to solely informing the authorities; and iv) that there had been a breach of Article 10 of the Convention in her regard ‑ the first court had neither examined the legitimate aim nor the proportionality of the measure. It had simply considered that the circular at issue was necessary in a democratic society; moreover, she had been dismissed without any examination of the content of the interview. She reiterated that she was seeking a remedy before the court, but that she would not insist on her Article 13 complaint.

By a judgment of 12 February 2016 the Constitutional Court dismissed the applicant’s appeal.

It considered that Article 6 was not applicable to the board that was not a tribunal whose decisions were directly decisive or final. Its function was solely limited to establishing facts and sending their conclusions to the Chief of the Department and the person charged. The Constitutional Court dismissed as unsubstantiated the claim of interference by the CoP with the Chairperson given that in its view his intervention had solely amounted to a piece of advice concerning procedures in disciplinary matters. Moreover, the applicant being a police officer given the bond of trust and loyalty attached to such a function Article 6 did not apply.

It confirmed the first‑instance findings under Article 14 reiterating that the examples brought forward by the applicant were not similar to her situation and all those examples had specific situations, while the applicant has been repeatedly subject to disciplinary action. Moreover, the applicant had not linked her discrimination complaint to any personal characteristic.

As to the Protocol, the Constitutional Court considered that Regulation 12 [10] which provided for the restriction pursued a legitimate aim and was necessary in a democratic society in the interest of public order. Indeed the sole need of requesting permission to travel while being suspended from office ‑ a rule the applicant was aware of when she joined the Police Force - could not be considered disproportionate.

Lastly under Article 10, the Constitutional Court reiterated that the applicant had failed to request permission which was necessary in accordance with the written circular issued by the CoP, which he had the right to issue in accordance with Article 108 of the Police Act. According to the Constitutional Court, given the trust associated with the Police Force, the restriction had pursued nearly all the legitimate aims under Article 10 § 2. In particular prior authorisation was necessary to safeguard the reputation of the Police Force who was to keep out of public debate which was not consonant with what the Police Force represented. While it had not been necessary to examine the content of the interview, a prima facie assessment of such content showed that it had not been consonant with the role of a police officer. In the Constitutional Court’s view, when the applicant went to Syria to bring back the kidnapped child without the CoP’s permission, while she was still a police officer, she had created a delicate situation which could have had repercussions at an international level. Thus, even in the light of the content of the interview the interference in her case had been justified.

B. Relevant domestic and international law

1. The Constitution of Malta

Article 44 of the Constitution of Malta reads as follows:

“(1) No citizen of Malta shall be deprived of his freedom of movement, and for the purpose of this article the said freedom means the right to move freely throughout Malta, the right to reside in any part of Malta, the right to leave and the right to enter Malta. ...

(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this article to the extent that the law in question makes provision -

(a) for the imposition of restrictions that are reasonably required in the interests of defence, public safety, public order, public morality or decency, or public health and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society; ...

(c) for the imposition of restrictions upon the movement or residence within Malta of public officers; or”

Article 115 of the Constitution of Malta reads as follows:

“The question whether -

(a) the Public Service Commission has validly performed any function vested in it by or under this Constitution;

(b) any member of the Public Service Commission or any public officer or other authority has validly performed any function delegated to such member, public officer or authority in pursuance of the provisions of subarticle (1) of article 110 of this Constitution; or

(c) any member of the Public Service Commission or any public officer or other authority has validly performed any other function in relation to the work of the Commission or in relation to any such function as is referred to in the preceding paragraph,

shall not be enquired into in any court.”

Regulation 12 [10] of the Public Service Procedure and Discipline Regulations, at the relevant time, read as follows:

“An officer who is temporarily suspended due to criminal proceeding instituted against him shall seek the permission of the permanent Secretary of the relevant Ministry if he wishes to travel .... Prior to granting such permission the Permanent Secretary of the relevant Ministry shall consult the Commissioner of Police. Any such officer who leaves Malta without the required permission shall be liable to disciplinary action, which action may be one leading to dismissal.”

2. The Maltese reservation concerning the application of Article 10 to public officers

The reservation made at the time of signature, on 12 December 1966, and contained in the instrument of ratification of the Convention, deposited on 23 January 1967, by the Government of Malta reads as follows:

“The Government of Malta, having regard to Article 64 of the Convention [Article 57 since the entry into force of the Protocol No 11], and desiring to avoid any uncertainty as regards the application of Article 10 of the Convention, declares that the Constitution of Malta allows such restrictions to be imposed upon public officers with regard to their freedom of expression as are reasonably justifiable in a democratic society. The Code of conduct of public officers in Malta precludes them from taking an active part in political discussions or other political activity during working hours or on official premises.”

COMPLAINTS

The applicant complains under Article 6 of the Convention that the board which had found her “guilty of all charges” had not been independent and that the CoP had put pressure on the PSC in connection with the appropriate punishment to be handed out, and thus could not be considered impartial.

Relying on Article 2 § 2 and 3 of Protocol No. 4 to the Convention the applicant complained that her limitations on travel (which went beyond those imposed by the court of criminal jurisdiction) did not fall under any of the exceptions mentioned in the invoked provision, they were moreover disproportionate to any alleged aim.

Similarly, under Article 10 she complained that her dismissal for participating in a television programme concerning problems arising for parents coming from different cultures had not pursued a legitimate aim, nor been proportionate.

Lastly, she complained under Article 14 in conjunction with Article 6 that other police offers who had committed worse actions than her had not been dismissed, nor had she be given the option to resign and preserve her pension rights.

QUESTIONS TO THE PARTIES

1. Was Article 6 under its civil head applicable to the disciplinary proceedings in the present case (see for general principles, Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007‑II and Olujić v. Croatia, no. 22330/05, §§ 36-37, 5 February 2009)? In particular were the bodies involved in the disciplinary proceedings a tribunal for the purposes of Article 6 § 1 (compare Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 88-91, ECHR 2013 and Kamenos v. Cyprus no. 147/07, § 86, 31 October 2017)?

2. If so, in view of the board’s composition and the interference by the Commissioner of Police in the proceedings before the PSC, did the applicant have a fair hearing before an independent and impartial tribunal as required by Article 6 § 1 of the Convention?

3. Has there been a violation of the applicant’s right to freedom of expression contrary to Article 10 of the Convention? In particular was the absolute requirement to seek authorisation to participate at any television programme in accordance with the law and in pursuance of a legitimate aim? Was such an absolute requirement proportionate to any aim pursued, particularly in the light of the applicable sanctions?

4. Was the restriction placed on the applicant’s freedom to leave the territory of the respondent State, as guaranteed by Article 2 § 2 of Protocol No. 4, necessary in terms of Article 2 § 3 of Protocol No. 4?

5. Has the applicant suffered discrimination contrary to Article 14 of the Convention in conjunction with Article 6 § 1? In particular, has the applicant been subjected to a difference in treatment in respect of her other colleagues who were predominantly male? If so, did that difference in treatment pursue a legitimate aim, and did it have a reasonable justification?

6. The Government should submit all the laws relevant to the present case, in particular those in connection with the nature of the disciplinary proceedings and the powers of the bodies involved, as well as the regulations relevant to the interferences and restrictions suffered by the applicant, as stood at the time of the facts of the present case.

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