FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 17209/02
by Maurice ZARB ADAMI
against Malta
The European Court of Human Rights (Fourth Section), sitting on 24 May 2005 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrK. Traja,
MrL. Garlicki,
MrJ. Borrego Borrego,
MsL. Mijović, judges,
MrJ Filletti, ad hoc judge,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 22 April 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the parties’ oral submissions at the hearing on 24 May 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Maurice Zarb Adami, is a Maltese national, who lives in Attard, Malta. He was represented before the Court by Mr I.Refalo and Mrs T. Comodini Cachia, lawyers practising in Valletta, Malta. At the oral hearing on 24 May 2005 the applicant was represented by these two lawyers. The respondent Government were represented by Mr S. Camilleri, Attorney General and by Mr P. Grech, Deputy Attorney General.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The background of the case
The applicant is a pharmacist in Malta. In 1971 he was placed on the list of jurors and has remained on the list ever since.
Between 1971 and 1997 the applicant was called to serve as a juror in three different sets of criminal proceedings, both as a juror and as foreman of the jury.
In 1997 the applicant was called again to appear before the Criminal Court to serve as a juror. However, he failed to attend on the appointed date and on 14 April 1997 was fined 100 Malta liras (approximately 240 euros) as a result.
2.The constitutional proceedings
The applicant failed to pay the fine. Accordingly, on 11 June 1997 the Registrar of the Courts of Malta lodged an application with the Criminal Court requesting it to summon the applicant to appear before it and/or to convert the fine into a prison term.
At a hearing of 26 June 1997 before the Criminal Court, the applicant argued that the fine was unconstitutional and infringed his fundamental rights. He alleged, in particular, that the penalty was discriminatory within the meaning of Article 45 of the Constitution and of Article 14 of the Convention, read in conjunction with Article 4 § 3 (d) of the Convention, because it subjected him to burdens and duties to which others in the same position were not subjected. Moreover, the law and/or the domestic practice exempted persons of female sex from jury service while, in practice, men were not granted exemption.
Considering that the applicant’s plea was not merely frivolous and/or vexatious, on 29 September 1997 the Criminal Court referred it to the Civil Court (First Hall) in its constitutional jurisdiction.
Before the Civil Court, the applicant alleged that the Maltese system penalised men and favoured women, as statistical data showed that during the preceding five years only 3.05% of those who had served as jurors were women while 96.95% were men. Moreover, the burden of jury service was not equitably distributed between individuals but was placed on a small minority of the population: in 1997 the list of jurors represented only 3.4% of the number of people enrolled on the electoral register. In practice, once placed on the list jurors would remain on it until they were disqualified, while others who also satisfied all the requisites were de facto exempted from service.
In a judgment of 5 February 1999, the Civil Court rejected the applicant’s claims. It held that by stating that every Maltese who had reached the age of twenty-one years qualified to serve as a juror, the law did not make any distinction between citizens. More specifically, there was no distinction between males and females. As to the practice criticised by the applicant, he had not substantiated his allegation according to which there were other persons eligible as jurors who managed to avoid having to perform their duties. Moreover, the applicant had failed to seek exemption from jury service in accordance with domestic law.
The Civil Court also observed that the applicant had not proved that he was being treated differently to such an extent that the burdens and obligations imposed on him were greater than those imposed on others. In particular, he had not established that people who had been on the list of jurors as long as he had had been removed without a valid reason, or that those in a situation comparable to his own had been left out of the list. The applicant had also failed to submit any evidence showing that the discrepancies between the number of men and women called upon to serve as jurors were specifically attributable to an intention to discriminate between sexes or aimed at giving an unfair advantage to women over men.
The applicant appealed against the judgment of 5 February 1999 to the Constitutional Court. He observed, in particular, that the existence of discrimination was clearly shown by the statistics he had produced. Given the factual background, it was unnecessary to prove an intention to discriminate on the part of the authorities.
In outline submissions, the applicant submitted that jury service was a burden as jurors were required to abandon their work in order to attend court hearings regularly; moreover, it imposed a moral burden to judge a person’s innocence or guilt of a person. According to the Constitution of Malta and to the Convention, social burdens should be shared by everyone in an equitable manner. However, the statistics showed that 99,26% of lists of foremen were men and only 0,74% women and that the list of jurors represented only 3,4% of those on the electoral register.
In a judgment of 2 November 2001, the Constitutional Court rejected the applicant’s appeal and upheld the judgment of the Civil Court.
The Constitutional Court observed that neither the law nor the administrative rules governing the compilation of the list of jurors were in any way discriminatory on grounds of sex. In fact, the statistics showed that the number of women on the list was 145 in 1996 (almost twice as many as in the previous year), and that that number had increased to 2,490 in 1997. An irreversible administrative process had thus been set in motion in order to bring the number of women in the lists in line with the number of men.
The Constitutional Court acknowledged, however, that the number of women actually called to serve as jurors was very low: only five in the years 1995, 1996 and 1997. This was clearly the result of the procedure for selecting the jury, in which the reasons militating for and against the choice of a particular person as a juror were evaluated. The composition of the jury depended on many factors, such as chance, challenges by the defence and exemptions granted by the courts. It was true that women were being exempted from jury service for social, family and cultural reasons; however, this was perfectly legitimate and lawful when it was the result of an application by the defence, a challenge by the prosecution or an order by the presiding judge.
The Constitutional Court also agreed that the manner in which the list of jurors was compiled appeared to favour a situation in which anyone placed on the list would remain on it until he or she reached the maximum age-limit. Therefore the applicant’s grievance that the system seemed to punish persons who were on the list was perhaps legitimate. It therefore suggested that the system be amended and the lists periodically changed in order to exclude persons who had already been called for jury service.
As regards the applicability of Article 14 of the Convention, the Constitutional Court noted that contrary to the applicant’s allegations, the case did not fall within the scope of Article 6 of the Convention as, in the ambit of criminal proceedings, that provision could only be invoked by the accused, not by the jurors chosen to try him. On the other hand, service as a juror should be considered “a normal civic obligation” within the meaning of Article 4 § 3(d) of the Convention, and therefore Article 14 came into play. However, the Constitutional Court did not consider that the applicant had been subjected to burdensome treatment merely because he had to serve as a juror three times over a period of seventeen years. In any case, that circumstance did not entitle him to take the law into his hands and to decide to ignore the court summons. Instead, he should have made use of the ordinary remedies available to him, such as a request to the competent court for exemption from jury service. Had the request been refused, he could have appealed.
The Constitutional Court also rejected the applicant’s submission that the fine imposed on him was discriminatory. It observed that everyone fined by a competent court was obliged by law to pay the fine and that everyone who disobeyed a court order was liable to punishment.
3. The applicant’s requests for exemption from jury service
On 23 February 2000 the applicant asked to be exempted from serving as a juror on the ground that, as the chairman of a commercial company, he had several business commitments during the month of March 2000. On 25 February 2000 the Criminal Court reserved its decision until it had heard the applicant. The Court has not, however, been informed whether the Criminal Court acceded to the request. According to the Government, it is likely that the applicant’s name was not drawn for jury service.
In October 2003 the applicant made an application to the Registrar of the Criminal Court. He observed that according to the Government Gazette of 28 August 2003, his name had been registered on the List of Jurors and on the List of Special Jurors. However, as he was a lecturer at the University of Malta, he was seeking exemption from jury service in accordance with Article 604(1) of the Criminal Code (hereinafter, the “CC”).
By a decision of 23 October 2003 the Registrar of the Criminal Court rejected that application.
In 2004, having been summoned to serve as a juror in another trial, in 2004 the applicant sought exemption from jury service under Article 607 of the CC. His application was refused by the competent domestic court.
On 18 April 2005 the applicant again requested exemption from jury service, arguing that, as a full-time lecturer at the University of Malta, he was entitled to an exemption by virtue of Article 604(1) of the CC, as amended in 2002. His request was accepted on 25 April 2005.
B. Relevant domestic law
According to Article 603 (1) of the CC,
“Every person of the age of twenty-one years or upwards, residing in Malta and being a citizen of Malta, shall be qualified to serve as a juror provided such person has an adequate knowledge of the Maltese language, is of good character and is competent to serve as a juror.”
Women became liable to serve as jurors on the same footing as men in 1994. Before that date, they were required to request to be considered for jury service, while men were included on the lists of jurors ex officio.
The compilation of the lists of jurors is regulated by Article 605 of the CC. This list is drawn up by the Commissioner of Police together with two magistrates and the Registrar of the Courts. It is published in the Government Gazette in the month of August of each year. Within fifteen days from the publication any person who, not possessing the qualifications required by law to serve as a juror, desires to be struck off the list may make an application to the Criminal Court. The court is required to proceed summarily on the application and the registrar to note on the lists any corrections which the court may order. Subsequently, the names of the jurors are written down on separate ballots of paper and ballots are drawn every month.
According to Article 604 of the CC,
“(1) The following persons are exempted from serving as jurors:
Members of the House of Representatives, judges, clergymen, members of the Armed Forces of Malta, persons holding the office of Head of a Government Department and their deputies, the magistrates, the Registrar of Courts, officers of the Executive Police, professors of the University, teachers of the Government secondary, primary and technical schools, District Medical Officers, health inspectors, the Principal Probation Officer and Probation Officers.
(2) Moreover the Court may, on an application to that effect, exempt from serving as a juror any apothecary of a village and any physician, surgeon or obstetrician actually practising his profession, and, in general, any person who has completed the sixtieth year of his age, unless, in some particular case, the court deems otherwise for the ends of justice.
(3) A person who has the care of a family or of a person who suffers from any physical or mental infirmity shall also be exempt from serving as a juror”.
In 2002, Article 604(1) was amended, and the right to obtain an exemption was given also to honorary consuls and to full-time teachers of the University.
Article 607 of the CC provides that any person who is not qualified or liable to serve as a juror, or who may have special reasons for asking to be exempted from serving as a juror, may bring the matter before the court, by means of an application to be filed within four days after the service of a writ of summons. The court may, “if it deems the reasons alleged to be good, ... order the registrar to cancel the name of such person”.
According to Article 609 of the CC, if a summoned person (that is to say, a person called to serve as a juror) fails to appear before the court at the time stated in the writ, he or she will be sentenced by the court to a fine and may be compelled to serve as a juror by means of a warrant of escort or arrest. The court may, on an application to that effect, remit the fine if it is satisfied that there was a good cause for the non-appearance.
COMPLAINTS
1. Relying on Article 14 of the Convention, read in conjunction with Article 4 § 3 (d), the applicant complained that the obligation imposed on him to perform jury service was discriminatory.
2. He further complained under Article 14, read in conjunction with Article 6, that he had been obliged to face criminal proceedings for failing to comply with a discriminatory civic obligation.
THE LAW
1. The applicant considered that the way in which jury service had been imposed on him was discriminatory in nature. He invoked Article 14 of the Convention, read in conjunction with Article 4 § 3 (d).
The relevant parts of the latter provision read as follows:
“1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this article the term ‘forced or compulsory labour’ shall not include: ...
(d) any work or service which forms part of normal civic obligations.”
Article 14 of the Convention states:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”The Government’s objection of non-exhaustion of domestic remedies
(a) The arguments of the parties
(α) The Government
The Government raised an objection of non-exhaustion of domestic remedies. They observed that the applicant had failed to ask to be exempted from jury service. That possibility was provided for by Article 607 of the CC, a provision which made a general reference to persons who might have special reasons for requesting an exemption. In 1997, out of 525 requests for exemption, 433 had been accepted; in 2005, the number of requests was 208, and only 30 had been refused.
The applicant, who was a member of the teaching staff in the department of Pharmacy of the University of Malta, could have asked for an exemption also under Article 604(1) of the CC, on the ground that jury service would have disrupted his duties as a lecturer. In 1997 38 exemptions were granted on the ground that the applicants were academic staff such as teachers, university professors or lecturers. The corresponding figure in 2005 was 20.
It was true that in October 2003 the applicant had asked for an exemption and that his request had been rejected by the court registrar. However, the reason for that refusal was that the applicant had been seeking permanent dispensation from jury service. Such a privilege could not be granted, as there was no guarantee that the applicant would remain a University lecturer. When, in 2005, the applicant had applied for an exemption on the specific dates on which he was called to serve as juror, his claim had been accepted.
Finally, the applicant could have argued that there was good cause for his non-appearance and that the fine imposed on him should be remitted in accordance with Article 609 of the CC.
While all defaulters who were not granted an exemption were, without exception, fined for non-appearance, it was not uncommon for the fine to be remitted following its imposition. The figures concerning the remittal of fines were as follow: 1993: 31 out of 51 defaulters; 1994: 19 out of 30 defaulters; 1995: 42 out of 65 defaulters; 1996: 26 out of 57 defaulters; 1997: 27 out of 72 defaulters; 1998: 4 out of 15 defaulters; 1999: 8 out of 19 defaulters; 2000: 6 out of 18 defaulters; 2001: 1 out of 15 defaulters. In 2002, none of the 16 defaulters obtained the remittal of the fine, while in 2003 one person was excused from paying the fine.
Moreover, the applicant’s allegation that the remittal of the fine was granted only to those who had acknowledged that they had committed contempt of court was not correct. In fact, the law required only that the defaulter should give a sufficiently good reason for his or her failure to appear.
The Government noted that when trials were taking a long time, the Maltese courts had often of their own accord exempted jurors from jury service. Therefore, as was shown by the above statistics, it could not be excluded that, had he made use of the provisions of Articles 604, 607 and 609 of the CC, the applicant might have obtained a favourable decision. In the ambit of those remedies, the applicant could also have adduced the imbalance between the number of times he had had to serve as a juror and the number of times that women actually performed the same social duty, thus arguing that a disproportionate burden was being imposed on him.
The Government also pointed out that the applicant was fined not for refusing to serve as a juror, but for deliberately ignoring the Criminal Court’s summons. In an article published in the local newspaper on 13 May 2005, the applicant himself had written: “If a court is contemptible, then I don’t mind being in contempt”. Instead of simply ignoring the summons, the applicant could have complied with it and submitted his constitutional-law argument when he appeared before the Criminal Court.
The Government contested the applicant’s argument that the authorities had failed to raise an objection of non-exhaustion before the Constitutional Court. It had been observed in the domestic proceedings that the applicant was raising an administrative-law issue which should have been dealt with by the administrative remedies. Moreover, the Constitutional Court was not obliged to refuse a claim because of non-exhaustion but could, at its discretion, decide to join that issue to the merits, as it had done in the present case.
(β) The applicant
The applicant considered that the only effective remedy available to him in the domestic legal system was constitutional proceedings in the Civil Court and the Constitutional Court. He emphasised that his complaint to Strasbourg was not directed at the procedure after he had been summoned to serve as a juror. It referred instead to what had occurred beforehand, in particular to the practice followed by those responsible for compiling the lists of jurors.
According to the applicant, the procedures established in Articles 604, 607 and 609 of the CC did not afford people enrolled on the list of jurors sufficient and effective means of redress. In particular, Article 604(1) did not offer professors of the University or full-time teachers at the University any means of obtaining exemption from jury service. Instead, it stipulated that professors and full-time teachers should not be placed on the list from the beginning. The exemption procedure was provided for only by paragraphs (2) and (3) of Article 604, and the applicant did not fall within any of the categories indicated therein. Moreover, at the relevant time (up to and including 1997) only university professors were eligible for exemption from jury service. However, at that time the applicant was not a professor, but only a part-time lecturer at the university. When he tried to obtain an exemption on that ground in October 2003, his application was refused.
As to Article 607 of the CC, the applicant submitted that the procedure provided for by that provision could not address the substance of his complaint. The remedy in issue referred only to the particular trial for which a person was summoned to serve as a juror, and did not concern his or her inclusion on the list. Even if the person concerned was exempted from one trial, he or she would be kept on the list and could be summoned to a future trial.
The remedy provided for by Article 607 was ineffective and insufficient since in practice applications for exemption were generally refused by the domestic courts. The statistics produced by the Government did not sufficiently take into account the fact that the law was amended in 2002. The judge, who had a full discretion in the matter, decided in camera without hearing the person concerned or requiring any submissions. According to the law, an exemption was to be granted for “special reasons”; however, the meaning of that expression was unclear and, since individuals had no access to the relevant documents, they could not find out how it had been interpreted and applied by the domestic courts. In 2000 and in 2004, the applicant had submitted applications for exemption from jury service, which had been refused. In any event, the remedy in issue was not applicable to the applicant’s case, in which the basis for the request for exemption was the discriminatory imposition of the burden of jury service. Had the Criminal Court exempted the applicant on that basis, it would have been obliged to exempt all men on the list of jurors. The only court competent to determine that claim in the light of Article 14 of the Convention, read in conjunction with Articles 4 and 6, was the Civil Court, in the exercise of its constitutional jurisdiction.
As to Article 609 of the CC, the procedure described therein applied to those who acknowledged that, by failing to appear, they had committed contempt of court. As the applicant had not complained about the fine per se, but about the system which had placed him on the list of jurors and imposed a disproportionate burden on him, it would have been contradictory to seek a remittal of the fine. This would have been tantamount to accepting that the placement on the list was legitimate and would have prejudiced the outcome of the applicant’s constitutional claim.
The applicant further noted that the Government had failed to raise the plea of non-exhaustion during the constitutional proceedings. The Constitutional Court, which could have raised this question ex officio, dismissed the applicant’s action on the merits, not for failure to exhaust other available remedies. Finally, the Government themselves had conceded that “the applicant has exhausted all domestic remedies with regard to his assertion that he was being discriminated against on the ground of sex”.
(b) The Court’s assessment
The Court considers that it is not necessary to ascertain whether the authorities raised the objection of non-exhaustion before the Constitutional Court and whether a failure to do so might result in the Government being estopped from raising a similar objection in Strasbourg (see, mutatis mutandis, San Leonard Band Club v. Malta, no. 77562/01, § 46, CEDH 2004- IX). Even assuming that the Government are not estopped, this objection should in any event be rejected, for the following reasons.
The Court reiterates that according to Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Hentrich v. France, judgment of 22 September 1994, Series A no. 296-A, p. 18, § 33, and Remli v. France, judgment of 23 April 1996, Reports of Judgments and Decisions 1996-II, p. 571, § 33). Thus the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. Nevertheless, the obligation to exhaust domestic remedies only requires that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004). The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, in particular, Vernillo v. France, judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27, and Dalia v. France, judgment of 19 February 1998, Reports 1998-I, pp. 87-88, § 38). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Akdivar v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1212, § 71; and Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, p. 18, § 37).
In this case the Court notes that before lodging his application in Strasbourg the applicant failed to ask to be exempted from serving as a juror under Articles 607 and/or 604(1) of the CC. Nor did he request a remittal of the fine imposed on him as could have done under Article 609 of the CC. On the other hand, he raised a plea of unconstitutionality based both on the Maltese Constitution and on the provisions of the Convention. This plea was examined by the Civil Court and by the Constitutional Court.
As far as the remedy provided for by Article 609 of the CC is concerned, the Court observes that, even assuming that the applicant could demonstrate that there was a “good cause for the non-appearance”, the result of his claim would have been the remittal of the fine, not exemption from jury service. This could have been obtained only under Articles 607 and/or 604 of the CC. However, it is unclear whether paragraph (1) of this latter provision might be used in order to obtain an exemption or whether instead it contains, as the applicant argued, an instruction to the bodies responsible for compiling the lists. It is also unclear whether the applicant, who at the relevant time was not a “professor of the University”, but a part-time lecturer, could invoke this provision. It has not been argued by the Government that the applicant could have relied on paragraphs (2) and/or (3) of Article 604.
As regards Article 607 of the CC, the Court observes that this provision confines itself to stating that the court may order the removal of the name of a person from the list of jurors “if it deems the reasons alleged to be good”. The provision thus fails to indicate the legal grounds justifying such removal. It follows that the national courts enjoy a wide and unfettered discretion in this field and that a claim based on Article 607 does not have reasonable prospects of success within the meaning of the Court’s case-law.
In addition, the Court cannot disregard the fact that since the Constitutional Court’s judgment of 2 November 2001 and the date of his application to the Court, the applicant has tried to obtain exemption from jury service under Articles 604(1) and/or 607 of the CC. However, with the sole exception of the claim of 18 April 2005, these remedies have been of no avail.
In these circumstances, the Court cannot conclude that the remedies invoked by the Government were sufficiently certain in practice.
It is also to be observed that had they accepted the applicant’s plea of unconstitutionality, the First Hall of the Civil Court and the Constitutional Court could have found a violation of Article 14 of the Convention, read in conjunction with Articles 4 § 3 (d) and/or 6, and thereby provided, if need be, adequate redress. The Court considers that in raising the said plea the applicant has made normal use of the remedies which were accessible to him and which related to the breaches alleged. While it is true that the applicant could have raised similar arguments while pursuing some of the other remedies referred to by the Government, he was not required to do so since under the established case-law of the Convention organs it is sufficient if an applicant has exhausted one of several alternative remedies likely to produce essentially the same effect (see Malhous v. the Czech Republic (Dec.) [GC], no. 33071/96, ECHR 2000-XII; and Botta v. Italy, no. 21439/93, Commission decision of 15 January 1996, Decisions and Reports (DR) 84, pp. 34, 43).
It follows that the application cannot be rejected for non‑exhaustion of domestic remedies and that the Government’s objection must be dismissed.
2. Applicability of Article 14 of the Convention, read in conjunction with Article 4 § 3 (d)
(a) The arguments of the parties
(α) The Government
The Government considered that Article 14 of the Convention, read in conjunction with Article 4 § 3(d), was not applicable to the facts of the present case.
They submitted that jury service was undoubtedly a “normal civic obligation” grounded on social solidarity, which was imposed on citizens in order to ensure a democratisation of the process of the administration of criminal justice and that a person was judged by his or her peers. This had not been contested by the applicant. Therefore, service as a juror could not amount to “forced or compulsory labour” within the meaning of Article 4 § 2 of the Convention. The applicability of that provision was excluded by virtue of paragraph 3(d).
The Government further noted that the applicant, who had only been called to serve three times as a juror over a period of seventeen years, had complained only about the procedures which led to the drawing up of the lists of those who were eligible as jurors, and not about the subsequent process of selection of the persons who eventually performed jury service. However, the drawing up of the lists did not amount to “forced labour”, as no service was necessarily implied by the mere fact that a person’s name appeared on them. In fact, an exemption could be granted, the person could be challenged or it might happen that his or her name would never be selected. Therefore, the facts underlying the applicant’s complaint fell outside the ambit of Article 4 of the Convention, and Article 14 was not applicable.
(β) The applicant
The applicant pointed out that the Constitutional Court had categorically accepted that jury service was a “normal civic obligation”. That opinion was confirmed by the principles laid down by the Court in the judgments of Karlheinz Schmidt and Van Der Mussele (see Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291-B, and Van Der Mussele v. Belgium, judgment of 23 November 1983, Series A no. 70). In this respect, the applicant underlined that he had not offered himself voluntarily for service as a juror, which, on the contrary, had been exacted from him on pain of a penalty.
In the applicant’s view, as jury service was covered by paragraph 3(d) of Article 4, the only logical conclusion was that the facts of the case fell within the scope of Article 4. As a consequence, Article 14 – a provision which did not require a violation of the substantive provision of the Convention, but only a link with it – was also applicable.
(b) The Court’s assessment
The Court considers that the question of the applicability of Article 14 of the Convention, read in conjunction with Article 4 § 3(d), is linked to the substance of the applicant’s complaint. It therefore decides to join it to the merits.
3. The merits of the applicant’s complaint
(a) The arguments of the parties
(α) The Government
The Government observed that the applicant accepted that the relevant domestic provisions did not discriminate between males and females. His complaints seemed therefore directed against the administrative practices relating to the choice of persons for jury service.
However, Article 14 of the Convention could not come into play in connection with the applicant’s claim that a person put on the list was not removed before he or she died or became exempted because of age. That alleged practice in fact equally applied to both males and females. The applicant’s complaints should therefore be interpreted in the sense that as a result of various factors he, as a male, was more likely to be called for jury service than a female.
The Government noted that originally all females had been precluded from jury service. The law had then been modified, and females could apply to have their names placed on the list of jurors. Nowadays, both females and males were equally likely to be called to serve as jurors or to be exempted from that social duty. Therefore, the jury list had started as an all male list, and it was only gradually that females had been added and continued to be added to it.
As to the statistics produced by the applicant, the Government observed that between 1996 and 1997 the number of male jurors had increased by less than 74% (from 4,298 to 7,503), while the number of female jurors had increased by 1,596% (from 147 to 2,494). In any case, it had to be borne in mind than most jurors were chosen from the part of the population which was active in the economy and in the professions. Such people were in fact less likely to have family or other reasons for seeking an exemption.
The Government pointed out that, as the Constitutional Court had correctly stated, “an irreversible administrative process [had been] set in motion to bring the number of women registered as jurors in line with that of men”. Since 1997, when the lists of jurors were revised on a yearly basis, the Commissioner of Police had tended to substitute men who were disqualified from service with women, and the objective of securing a more even distribution of jurors between the two genders was kept in mind when putting additional jurors on the lists. One of the measures that had been taken was to add Government or bank employees to the lists of jurors, amongst which groups women were substantially represented. University graduates had also been added to the lists on the basis that there was an equal number of men and women. The Government noted that as a result of this ongoing process, in the list of jurors published on the Gazette of 15 November 2004, there were 6,344 women and 10,195 men. They also clarified that while there was no maximum numerical limit to the number of people included on the lists of jurors, the number actually enrolled depended on checks made by the Commissioner of Police, and by the practice of putting on the lists only qualified individuals (males or females) who were less likely to be entitled to an exemption.
It had also to be recalled that according to Article 604(3) of the CC, an exemption might be granted when a juror was a person who had the care of the family or of a person suffering from physical or mental infirmity. As more women than men were looking after their families, a higher number of females were disqualified on that account. However, this was the result of socio-cultural factors rather than of the operation of the law.
The Government furthermore emphasised that the prosecution and the defence had the right to challenge a number of jurors. For reasons of cultural orientation, defence lawyers might have had a tendency to challenge female jurors, but this was discrimination against, not in favour of women.
In the light of the above, the Government concluded that the practice of selection and exemption from jury service was justifiable under Article 4 § 3 of the Convention, read alone or in conjunction with Article 14.
(β) The applicant
The applicant complained about a two-fold discriminatory treatment. In the first place, he alleged that he had been treated differently from women who, though satisfying the legal requirements, were called on to fulfil jury service in a minimal manner when compared to men.
Thus, the burden of jury service was placed predominantly on males, while females were de facto exempted from this social duty. The applicant referred, on this point, to the statistics he had produced in the domestic proceedings. He noted that in 1996, 140,975 women and 135,527 men were enrolled in the electoral register; however, only 147 women (among whom 5 actually served as jurors) were placed on the lists of jurors, as opposed to 4,298 men (174 of whom actually served as jurors). In 1996, 5 women and 103 men served as jurors.
This discrimination was caused by the way in which the lists of jurors were compiled and could not be excused by social or cultural reasons or by the choice made at the beginning of the trial by the prosecutor or the defence. The crux of the matter was in fact not the number of females who actually had to serve as jurors, but the low number of females who were enrolled on the lists of jurors.
The applicant considered that after 1994, when women became liable to serve as jurors on the same footing as men, there was no reason in law for the continued discrepancy between the two genders. Both males and females were in theory equally liable to serve as jurors and to be exempted. However, as the overwhelming majority of people enrolled on the list were men, the only explanation was that there had been a discriminatory administrative practice.
The applicant was unable to explain the increasing number of women registered as jurors from 1996 to 1997, but pointed out that the increase had occurred only three years after the 1994 amendments. The fact that the number of females selected as jurors was constantly growing might also be explained by the judgment given in his case by the Constitutional Court, in which a revision of the system of compiling the lists had been recommended. In any case, the discrimination complained of had lasted for at least 26 years, including the year when the applicant had lodged his complaint before the national courts.
As to the Government’s argument that the predominant number of males was a result of there being fewer females active in public and professional life, the applicant noted that the law did not require a person to be active in such fields in order to qualify as a juror. The Government’s argument might even be considered discriminatory against people who chose to study at university or to become housewives.
The applicant further considered that he had also been discriminated against vis-à-vis other men who, though eligible for jury service, had never been summoned to serve as jurors.
He alleged that the way in which the laws establishing jury service were applied had led to a situation in which only a small percentage of the population was summoned to serve as jurors. Of the hundreds of thousands of persons eligible for jury service, only a few hundred were actually called for service. The lists of jurors were not compiled every year and the same names were retained on the lists. Even if the law clearly required new lists to be compiled, the practice was, as substantially admitted by the Government, to make a simple annual check of those who had become disqualified or had died during the previous twelve months.
In that respect, the applicant noted that the number of persons enrolled on the electoral register in 1996 and 1997 was, respectively, 276,502 and 279,487, while the number of persons placed on the lists of jurors in the same years was 4,445 and 9,997. It followed that the burden of jury service was limited, in 1996, to 1.6% of those eligible and in 1997 to 3.57%. While accepting that only a small percentage of persons were needed every year to serve as jurors, the applicant emphasised that the burden of such service had been imposed on the same people, representing a small minority of the population, for a large number of years. In this connection, he pointed out that he had been placed on the lists for the first time in 1971 and that his name had not been removed since.
In the applicant’s view, the situation was still unsatisfactory. Even after the 2002 amendments, the lists were not drawn up de novo. The authorities confined themselves to replacing people who had become disqualified. As a result, only 6% of the population were on the list (3.5% of males and 2.5% of females).
He considered that the differences in treatment complained of lacked any objective and reasonable justification. Men did not have any specific abilities which might render them more fit for jury service than women. The aim of the jury system should be to ensure that the accused was tried by a sample of society. A jury predominantly composed of men would create an imbalanced system of criminal justice in relation to trials in which women were defendants, victims or witnesses.
Lastly, no justification had been put forward by the Government to explain the difference in treatment that the applicant suffered vis-à-vis other men.
(b) The Court’s assessment
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. The applicant alleged that in relation to a civic obligation that had been imposed on him he had had to face criminal proceedings, had been ordered to pay a fine and been threatened with imprisonment in default. He relied on Article 14 of the Convention, read in conjunction with Article 6. The relevant part of the latter provision reads as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law...”
1. The arguments of the parties
(a) The Government
The Government observed that the applicant had become liable to the payment of a fine because he had chosen to ignore his call for jury service. He had not complained of an unfair trial or of a lack of independence or impartiality of the domestic tribunal. Nor had he complained that the situation would have been different if he had been a female. Therefore, no discrimination on the ground of sex could be disclosed.
In the Government’s view, the applicant’s complaint might be understood in the sense that as there were more male jurors, it was more likely that a male juror would become liable to a fine if he ignored his duties. To accept that argument would be tantamount to holding that laws on prostitution were in breach of Article 14 read in conjunction with Article 6 simply because there were more female prostitutes than male ones. In any case, the applicant had alleged that others could be victims of the alleged violation, but not that he himself was a victim.
The Government were of the opinion that the complaint under Article 6 relied on the same facts as those alleged in connection with Articles 14 and 4 § 3(d). In fact, there was a necessary link between the criminal proceedings against the applicant and the fine that had been imposed on him for ignoring the court summons calling him for jury service.
(b) The applicant
The applicant considered that the proceedings in which the Criminal Court had been asked to convert the fine into a term of imprisonment fell within the ambit of Article 6 of the Convention. He furthermore alleged that a violation of the latter provision, read in conjunction with Article 14 of the Convention, “necessarily [arose] as a consequence of the complaint raised under Articles 14 and 4 § 3(d)”. In that respect, the applicant submitted that there was a strong link between jury service and the proceedings that had been brought against him. The compilation of the lists of jurors, the summons served on the applicant, the fine imposed on him and the proceedings for its conversion were events that were mutually dependent and completely inter-related.
2. The Court’s assessment
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court by a majority
Declares the application admissible, without prejudging the merits of the case.
Michael O’BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy