Zarb Adami v. Malta

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 87

June 2006

Zarb Adami v. Malta - 17209/02

Judgment 20.6.2006 [Section IV]

Article 14

Discrimination

Discrimination against men to negligible percentage of women requested to undertake jury service: violation

Article 4

Article 4-3-d

Normal civic obligations

Discrimination against men due to negligible percentage of women requested to undertake jury service: violation

Facts:From 1971 the applicant was placed on the list of jurors in Malta and remained on the list until at least 2002. Between 1971 and 1997 he served as both a juror and foreman in three different sets of criminal proceedings. In 1997 he was called again to serve as a juror, but failed to appear and was fined approximately EUR 240. As he had failed to pay the fine he was summoned before the Criminal Court. He pleaded that the fine imposed on him was discriminatory as others in his position were not subjected to the burdens and duties of jury service and the law and/or the domestic practice exempted women from jury service, but not men. His case was referred to the First Hall of the Civil Court, where the applicant alleged that the Maltese system penalised men and favoured women; during the preceding five years only 3.05% of women had served as jurors as opposed to 96.95% of men. Moreover, the burden of jury service was not equitably distributed; in 1997 the list of jurors represented only 3.4% of the list of voters. The First Hall of the Civil Court rejected the applicant’s claims. He appealed, stressing that jury service was a burden, as jurors were required to leave their work to attend court hearings regularly. It also imposed a moral burden to judge the innocence or guilt of a person. His appeal was rejected by the Constitutional Court. In 2003 and 2004, as a university lecturer, he sought exemption from jury service but his two applications were refused. His further request in 2005 was accepted on account of his full-time position as lecturer.

Law:Article 14 read in conjunction with Article 4(3)(d) – Compulsory jury service as it exists in Malta is one of the “normal civic obligations” envisaged in Article 4(3)(d). The applicant had not offered himself voluntarily for jury service and his failure to appear had led to the imposition of a fine, which could be converted into a term of imprisonment. On account of its close links with the obligation to serve, the obligation to pay the fine also fell within the scope of Article 4(3)(d). Article 14 was accordingly applicable.

Maltese law in force at the relevant time made no distinction between sexes, both men and women being equally eligible for jury service. The discrimination at issue was based on what the applicant described as a well-established practice, characterised by a number of factors, such as the manner in which the lists of jurors were compiled and the criteria for exemption from jury service. As a result, only a negligible percentage of women were called to serve as jurors. Although statistics were not by themselves sufficient to disclose a practice which could be classified as discriminatory, discrimination potentially contrary to the Convention might result not only from a legislative measure, but also from a de facto situation. In 1997 the number of men enrolled on the lists of jurors had been three times the number of women. In 1996 that difference had been even more significant as 174 men but only five women had served as jurors. Those figures showed that the civic obligation of jury service had been placed predominantly on men. Hence there had been a difference in treatment between two groups which, with respect to jury service, were in a similar situation.

Since 1997 an administrative process had been set in motion in order to bring the number of women registered as jurors in line with that of men. As a result, in 2004, over 6,000 women and over 10,000 men had been enrolled on the list of jurors. However, that did not undermine the Court’s finding that at the relevant time only a negligible percentage of women had been enrolled and had actually been requested to perform jury service.

If a policy or general measure had disproportionate prejudicial effects on a group of people, the possibility of its being considered discriminatory could not be ruled out even if it was not specifically aimed or directed at that group. Moreover, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of sex as compatible with the Convention. The Government had argued that the difference in treatment depended on a number of factors. Jurors were chosen from the part of the population which was active in the economy and in the professions. Moreover, an exemption from jury service might be granted to those taking care of their family and more women than men could successfully rely on the relevant legal provision. Finally, “for reasons of cultural orientation”, defence lawyers might have had a tendency to challenge female jurors.

The Court doubted whether the factors indicated by the Government were sufficient to explain the significant discrepancy in the repartition of jury service. The second and third factors related only to the number of females who actually had performed jury service and did not explain the very low number of women enrolled on the lists of jurors. In any event, the factors highlighted by the Government only constituted explanations of the mechanisms which had led to the difference in treatment complained of. No valid argument had been put before the Court in order to provide a proper justification for it. In particular, it had not been shown that the difference in treatment had pursued a legitimate aim and that there had been a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

Conclusion: violation (six votes to one).

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