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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> DEMICOLI v. MALTA - 13057/87 [1991] ECHR 37 (27 August 1991)
URL: http://www.bailii.org/eu/cases/ECHR/1991/37.html
Cite as: [1991] ECHR 37, 14 EHRR 47, (1992) 14 EHRR 47, [1991] 14 EHRR 47, (1991) 14 EHRR 47
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In the case of Demicoli v. Malta*,
The European Court of Human Rights, sitting, in accordance with
Article 43** (art. 43) of the Convention for the Protection of Human Rights
and Fundamental Freedoms ("the Convention") and the relevant provisions of
the Rules of Court***, as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr J. Cremona,
Mr Thór Vilhjálmsson,
Mr J. Pinheiro Farinha,
Sir Vincent Evans,
Mr R. Bernhardt,
Mr A. Spielmann,
Mr N. Valticos,
Mr I. Foighel,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 22 February and 26 June 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar:
* The case is numbered 33/1990/224/288. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on 1 January 1990.
*** The amendments to the Rules of Court which entered into force
on 1 April 1989 are applicable to the present case.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 21 May 1990, within the three-month
period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47)
of the Convention. It originated in an application (no. 13057/87) against
the Republic of Malta lodged with the Commission under Article 25 (art. 25)
by Mr Carmel Demicoli, a Maltese citizen, on 22 May 1987.
The Commission's request referred to Articles 44 and 48 (art. 44, art. 48) and
to the declaration whereby Malta recognised the compulsory jurisdiction of the
Court (Article 46) (art. 46). The object of the request was to obtain a
decision as to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Article 6 paras. 1 and 2
(art. 6-1, art. 6-2).
2. In response to the enquiry made in accordance with Rule 33 para. 3 (d)
of the Rules of Court, the applicant stated that he wished to take part in
the proceedings and designated the lawyers who would represent him
(Rule 30).
3. The Chamber to be constituted included ex officio Mr J. Cremona,
the elected judge of Maltese nationality (Article 43 of the Convention)
(art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21
para. 3 (b)). On 24 May 1990 the President drew by lot, in the presence of
the Registrar, the names of the seven other members, namely
Mr Thór Vilhjálmsson, Sir Vincent Evans, Mr R. Bernhardt, Mr A. Spielmann,
Mr N. Valticos, Mr I. Foighel and Mr R. Pekkanen (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43). Subsequently, Mr Pekkanen was
prevented from sitting and was replaced by the first substitute judge,
Mr J. Pinheiro Farinha (Rules 22 para. 1 and 24 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of the
Maltese Government ("the Government"), the Delegate of the Commission and
the representative of the applicant on the need for a written procedure
(Rule 37 para. 1). In accordance with the order made in consequence, the
Registrar received, on 3 September 1990, the applicant's memorial and, on
4 September 1990, the Government's.
By letter of 15 October, the Secretary to the Commission informed
the Registrar that the Delegate would submit his observations at the
hearing.
5. Having consulted, through the Registrar, those who would be
appearing before the Court, the President had directed on 9 July 1990 that
the oral proceedings should open on 20 February 1991 (Rule 38).
6. On different dates between 4 October 1990 and 19 February 1991 the
Commission and the Government filed a number of documents the production of
which had been requested by the Registrar on the President's instructions.
7. The hearing took place in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Dr A. Borg Barthet, Attorney General, Agent,
Dr L. Quintana, Senior Counsel for the Republic, Counsel,
(b) for the Commission
Mr E. Busuttil, Delegate;
(c) for the applicant
Dr G. Bonello, advocate, Counsel.
The Court heard addresses by Dr Borg Barthet for the Government, by
Mr Busuttil for the Commission, and by Dr Bonello for the applicant as well
as replies to questions put by the Court and by two of its members
individually.
8. The Registrar received, on 26 March 1991, the observations of the
Government regarding the applicant's claim under Article 50 (art. 50) of the
Convention, on 15 and 23 April 1991, the comments of the applicant and the
Delegate of the Commission thereon and, on 23 May 1991, the Government's
reply thereto.
AS TO THE FACTS
I. The particular circumstances of the case
9. The applicant is the editor of the political satirical periodical
"MHUX fl-Interesstal-Poplu" (NOT in the people's interest).
10. On 3 January 1986 an article entitled "Mix-Xena tax-Xandir" (From
the Broadcasting Scene) appeared in the applicant's periodical commenting
on a particular parliamentary debate in the Maltese House of
Representatives, which had been broadcast live on television. The article
included the following passages:
"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
Debono Grech's behaviour in Parliament. It seems that Debono Grech
deliberately tried to make us laugh. If this is so, Debono Grech is
ridiculing what is supposed to be the highest institution of the
land.
Let us see what Debono Grech was up to. His first sentence was meant
to raise some laughs as he maintained that Lawrence Gatt, a
Nationalist Member of Parliament, badly needed a pair of spectacles.
This was rather a flat joke. Then he started calling names Bonello
Dupuis [a Nationalist Member of Parliament] and described the latter
as a man who lacked principles. Then he tried to make us laugh once
again when he referred to the killing of pigs. Anyway, he tried to
play the clown once, twice and even three times. And some of his
jokes were rather vulgar.
I felt extremely angry that the man who is representing the people,
and that includes yours truly, on agricultural matters, was using
this serious and important debate to play the clown. Well, I
thought, if Debono Grech has the right to speak the way he likes on
the television screen, in my home, then I am also entitled to speak
my mind. And I started booing him with all my might, and had I had
enough tomatoes, I would have used them for other purposes.
You may ask me what I did when 'il-Profs' Bartolo of Cospicua took
the microphone. First and foremost, this man is not as yet aware
that Mintoff has resigned and Bartolo still echoes him to this very
day. Secondly, you stand no chance of finding anything worthwhile
after analysing Bartolo's speech. At least, you may find something
worthwhile in Debono Grech's speech, but you discover absolutely
nothing in Bartolo's. Let me tell you what I did when this professor
stood up to speak.
I booed this last one so heartily that the neighbours thought that I
had had an epileptic fit. To crown it all, Mrs Grech, 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. Bartolo 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 Grech that nothing was
really wrong with me I had to allow her to take my pulse rate,
examine my tongue and take my temperature."
11. On 13 January 1986 Mr Debono Grech and Mr Bartolo, two of the Members
of Parliament referred to, brought the article to the attention of the House
of Representatives as an alleged breach of privilege. On 10 February, before
the applicant had been heard, the Speaker announced that he had examined the
matter and found a prima facie case of breach of privilege. The House, on a
proposal by Mr Debono Grech, proceeded on the same day to pass a resolution
which stated that the House considered the article in question as a breach of
its privileges according to section 11(1)(k) of the House of Representatives
(Privileges and Powers) Ordinance (Chapter 179 of the Revised Edition of the
Laws of Malta; see paragraph 20 below), hereinafter referred to as "the
Ordinance".
12. On 4 March 1986 the House of Representatives considered a motion,
proposed by Dr Joseph Cassar and seconded by Mr Debono Grech, to direct the
applicant to be summoned by notice under section 13(2) of the Ordinance to
answer a charge of defamatory libel under section 11(1)(k) of the Ordinance.
The terms of the motion were:
"That the House after having by its own resolution decided in the
sitting of 10 February 1986 that the article bearing the title
'Mix-Xena tax-Xandir' which appeared at page 4 of the 'MHUX
fl-Interesstal-Poplu' of 3 January 1986 be considered a breach of
privilege according to section 11(1)(k) of the House of
Representatives (Privileges and Powers) Ordinance;
The House orders Carmel Demicoli of Flat 1, Ferrini Court,
University Street, Msida, as editor of the journal 'MHUX
fl-Interesstal-Poplu', to appear before it in the sitting of
17 March 1986 at 6.30 pm to state why he should not be found guilty
of breach of privilege according to section 11(1)(k) of the House of
Representatives (Privileges and Powers) Ordinance; and
The House also orders the subpoena of every witness that the Clerk
of the House will be asked to summon."
The then Leader of the Opposition, Dr Fenech Adami, drew attention
to the wording of the resolution of 10 February 1986 which he considered out
of order since it did not make it clear that there was only a prima facie
case of breach of privilege. For his part, Dr Cassar expressed the opinion
that the proposed motion did not state that the applicant was guilty:
"Here we are not saying that he is guilty. We are saying: Come here
so that on the 17th of March you will say why you are not guilty.
And if ever you were to convince us that you are not guilty we will
say that you are not guilty; if you will not convince us we will say
you are guilty."
After the debate the motion was adopted as proposed by Dr Cassar.
13. On 13 March 1986 Mr Demicoli brought an application before the Civil
Court of Malta in exercise of its constitutional jurisdiction challenging the
proceedings instituted against him by the House of Representatives on the
ground that these proceedings, which were penal in nature, violated his right
under section 40 of the Constitution (see paragraph 22 below) to be given a
fair hearing by an independent and impartial court.
14. On 17, 18 and 19 March 1986, before the delivery of the judgment of
the Civil Court, the applicant appeared before the House of Representatives
with his lawyer.
It was submitted as a point of order that further proceedings on the
case in the House should be suspended until the court had determined the
constitutional issue, but the Speaker ruled that the House should proceed
with the case before it. The question was then put to the applicant, "Does
the editor consider himself to be guilty or not please? Mr Demicoli, do you
consider yourself guilty?" When the applicant refused to answer whether he
was guilty or not, he was threatened with further proceedings for contempt.
One of the members of the House, Dr Joseph Brincat, stated on a point of
order that the breach of privilege proceedings were to be considered as being
of a criminal nature and accordingly - an argument accepted by the Speaker -
the rule of criminal procedure that he who stands mute is presumed to have
answered 'not guilty' should be applied.
Dr Cassar proceeded to adduce the evidence against the applicant,
reading out the impugned article and concluding that it insulted Mr Debono
Grech and Mr Bartolo in connection with their conduct in the House. The
latter were invited by the Speaker to comment and both made statements to the
effect that they considered themselves ridiculed in their capacity as members
of the House, as well as in their private lives.
Mr Debono Grech subsequently said,
"Mr Speaker, this is the last time I come here and go to Court in
connection with this dirt. And if they attack me personally I will
neither seek redress here nor go to court. Okay? And if trouble
crops up in my family, if you [pointing to defence lawyer] defend him
[the applicant], I will ['sue you' (according to the Government's
translation)] ['take my revenge on you' (according to the applicant's
translation)]."
On 19 March 1986 the House adopted a resolution in the following
terms:
"That the House after having considered the case of breach of its
privileges caused by the article published at page 4 of the journal
'MHUX fl-Interesstal-Poplu' Number 63 of 3 January 1986;
Finds the editor Carmel Demicoli guilty of breach of privilege."
The House postponed the question of punishment until another sitting,
due, according to the Government, to the pending constitutional proceedings.
15. On 16 May 1986 the Civil Court delivered judgment in favour of the
applicant. It began by finding that the proceedings were not criminal in
nature:
"The House of Representatives is not an ordinary court, although,
because of the system of checks and balances already referred to, it
also has quasi-judicial functions, apart from its principal function
of legislator. And the law that provides for the privileges and
contempt of the House (chapter 179) is not part of the criminal law
of the country. It is true, as argued by the applicant, that there is
a great resemblance between the penalties provided for by the
Criminal Code and those provided for by this particular law. However,
the decision of the House is not the criminal conviction that emerges
from a decision of the Criminal Court, and the declaration of guilt
for contempt and the consequential sanctions from such a declaration,
despite having the same form as criminal penalties - admonitions,
payment of money, imprisonment - are nonetheless not criminal
convictions."
However, the Court continued:
"The House may take proceedings for contempt where, among other
things, there results:
'(k) the publication of any defamatory libel on the Speaker
or any Member touching anything done or said by him as
Speaker or as a Member in the House or in a Committee
thereof;' (Vide sect. 11 Chapter 179).
For the House to have jurisdiction to take proceedings for contempt
there must be a defamatory libel (a mixed question of fact and law)
and the law did not state that this is a question that must be
established by the House, but something that must exist objectively;
this being so, the declaration of the existence of the defamatory
libel must first be made objectively by the Court, and then there
will be proceedings in the House for contempt."
The Civil Court concluded that the Ordinance in question did not
authorise the House of Representatives of its own initiative to define what
is a defamatory libel, and that, if and when it acts upon a contempt, it must
act according to the principles of natural justice. It ordered that the
applicant be placed in the position in which he was before proceedings were
instituted against him on the basis of breach of privilege and that no
further proceedings be taken against him on the basis of the resolution and
motion in question.
16. On 13 October 1986 the Constitutional Court, on appeal by both
parties, disagreed with the conclusions of the Civil Court. It held that the
Constitution authorised Parliament to enact laws establishing its privileges,
immunities and powers, that accordingly the powers given to the House by
virtue of Chapter 179 of the Laws of Malta did not violate the person's right
to a fair hearing by an independent court as guaranteed under section 40 of
the Constitution and that in those circumstances the lower court had not been
entitled to look further into the matter or to afford the remedies indicated
in its judgment.
17. On 9 December 1986 the House of Representatives summoned the
applicant before it in order to decide the penalty to be imposed upon him.
On being asked if he wished to comment, the applicant stated through his
lawyer that he had nothing to say regarding the punishment but would comply
with the House's decision. He was fined 250 Maltese liri and ordered to
publish the resolution of 19 March 1986 in his paper.
18. Mr Debono Grech and Mr Bartolo participated throughout in the
proceedings brought against the applicant, save that Mr Bartolo died before
the sitting of 9 December 1986.
19. The applicant has not as yet paid the fine and no steps have been
taken to enforce its recovery.
II. The relevant domestic law
20. As applicable at the relevant time, the provisions of the Ordinance
concerning the privileges of the House of Representatives were as follows:
Section 9
"An oath or affirmation taken or made by a witness or by an expert
before the House of Representatives or any Committee thereof shall
for the purposes of the Criminal Code (Chapter 12) be comparable to
an oath or affirmation taken or made before a Court in civil
matters."
Section 11
"(1) The House 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 liri or with both such fine and such
imprisonment, any person, whether a Member of the House or not,
guilty of any of the following acts:
...
(k) the publication of any defamatory libel on the Speaker or
any Member touching anything done or said by him as Speaker
or as a Member in the House or in a Committee thereof;
...
(4) For the purposes of this section - 'publication' means any act
whereby any printed matter is or may be communicated to or brought
to the knowledge of any person or whereby any words or visual images
are broadcast; ...
(5) A person shall be deemed guilty of the acts mentioned in
paragraph[s] (k) ... of subsection (1) of this section if the
publication referred to in paragraph[s] (k) ... consists in the
publication of such defamatory libel, false or perverted report, or
misrepresentation in printed form in Malta, or in the distribution
in Malta of such printed matter containing such defamatory libel,
false or perverted report, or misrepresentation, from whatsoever
place such printed matter may originate, or in any broadcast from
any place in Malta or any place outside Malta of any such defamatory
libel, false or perverted report, or misrepresentation."
Subsection (6) entitles the House to order in the case of a
newspaper, in addition to the punishments under subsection (1), the
publication in a subsequent issue of the motion finding the accused guilty of
an act mentioned in paragraph (k) of subsection (1).
Section 13
"(1) ...
(2) ... the House may direct the offender to be summoned by notice
signed by the Clerk of the House, to appear before it at a specified
sitting to answer the charge.
(3) If the offender fails to appear, it shall be lawful for the
Speaker of the House on the direction thereof, to issue a warrant
for the offender to be arrested and brought before the House.
...
(5) In all cases the offender shall be given the opportunity to
speak in his own defence and, ..., he may be assisted by an advocate.
..."
Section 14
"(1) ...
(2) When the House fines a person, the fine shall be paid to the
Accountant General through the Clerk of the House within two clear
days of its infliction. At the next following sitting the Clerk
shall report to the Speaker the payment so made or its default; in
the latter case the House may decide on the commutation of the fine
into a term of imprisonment or give other directions at its
discretion."
21. Defamatory libel is a criminal offence under the Press Act 1974
(Act No. XL of 1974).
Section 3 of the Act provides:
"The offences mentioned in this Part of the Act are committed by
means of the publication or distribution in Malta of printed matter,
from whatsoever place such matter may originate, or by means of any
broadcast."
Section 11 of the Act provides:
"Save as otherwise provided in this Act, whosoever shall, by any
means mentioned in Section 3 of this Act, libel any person, shall be
liable on conviction:
(a) if the libel contains specific imputations against such
person tending to injure his character and reputation, or to
expose him to public ridicule or contempt, to imprisonment
for a term not exceeding three months or to a fine (multa)
not exceeding two hundred liri or to both such imprisonment
and fine;
(b) in any other case, to imprisonment for a term not
exceeding one month or to a fine."
22. The Constitution of Malta also refers to the privileges of
Parliament.
Under section 34 no person is to be deprived of his personal liberty
save as may be authorised by law, inter alia, in execution of an order of the
House of Representatives punishing him for contempt of itself or of its
members or for breach of privilege, or directing that he be brought before
it.
Section 40 provides for any person charged with a criminal offence to
be afforded a fair hearing within a reasonable time by an independent and
impartial court established by law.
Section 41(1) guarantees freedom of expression with the following
proviso under subsection (2):
"Nothing contained in or done under the authority of any law shall be
held to be inconsistent with or in contravention of subsection (1) of
this section to the extent that the law in question makes provision -
(a) that is reasonably required -
(i) in the interests of defence, public order, public
morality or decency, or public health; or
(ii) for the purpose of [...] protecting the privileges
of Parliament [...]
... ."
PROCEEDINGS BEFORE THE COMMISSION
23. In his application (no. 13057/87) lodged with the Commission on
22 May 1987, Mr Demicoli submitted that the proceedings against him in the
House of Representatives involved the determination of a "criminal charge",
within the meaning of Article 6 para. 1 (art. 6-1) of the Convention, and
that, in breach of that provision, he had not received a "fair and public
hearing ... by an independent and impartial tribunal". He also alleged a
failure to observe the presumption of innocence, guaranteed by
Article 6 para. 2 (art. 6-2).
24. The Commission declared the application admissible on 15 March 1989.
In its report of 15 March 1990 (drawn up in accordance with Article 31)
(art. 31), it expressed the unanimous opinion that there had been a
breach of Article 6 para. 1 (art. 6-1) and that no separate issue arose
under Article 6 para. 2 (art. 6-2).
The full text of the Commission's opinion and of the concurring
opinion contained in the report is reproduced as an annex to this
judgment*.
_______________
* Note by the registry: For practical reasons this annex will appear
only with the printed version of the judgment (volume 210 of Series A of
the Publications of the Court), but a copy of the Commission's report is
obtainable from the registry.
_______________
AS TO THE LAW
I. PRELIMINARY OBJECTION
25. By way of preliminary objection, the Government pleaded, as they had
already done before the Commission, that Mr Demicoli, in lodging his
complaint on 22 May 1987, had failed to comply with the rule, in Article 26
(art. 26) of the Convention, that applications to the Commission must be
lodged "after all domestic remedies have been exhausted ... and within a
period of six months from the date on which the final decision was taken".
26. The Government, relying in particular on the wording and grammatical
construction of Article 26 (art. 26), as well as on the travaux préparatoires,
argued that the date of the "final decision" was 13 October 1986, the date
of the judgment of the Constitutional Court (see paragraph 16 above), that
being the final court from which the applicant could have sought a remedy.
They submitted that the sentencing of Mr Demicoli by the House of
Representatives - which was postponed until 9 December 1986 pending the
outcome of the domestic constitutional proceedings (see paragraph 17
above) - was merely the culmination of the breach of privilege proceedings
against the accused and could not be considered to be the final decision in
regard to the exhaustion of domestic remedies within the terms of Article 26
(art. 26).
27. The proceedings against the applicant culminated in the decision of
9 December 1986 as to his sentence. That was the date on which his position
was finally determined. The Court agrees with the Commission that this date
must be regarded as the date of the final decision for the purposes of
Article 26 (art. 26) of the Convention.
28. The Government's preliminary objection must therefore be rejected.
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
29. The applicant submitted that the charge of breach of privilege of
which he was found guilty by the House of Representatives, was a "criminal
charge" falling within the ambit of Article 6 (art. 6) of the Convention,
which in paragraph 1 (art. 6-1) provides:
"In the determination of ... any criminal charge against him,
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law ..."
He alleged that he had not been given a hearing by a tribunal
complying with these requirements.
A. Applicability of Article 6 PARA. 1 (art. 6-1)
30. The Government submitted that in Maltese law the breach of privilege
proceedings taken against the applicant for defamatory libel were not
"criminal" but disciplinary in character.
This view, contested by the applicant, was not supported by the
Commission. It considered that the proceedings in question involved the
determination of a "criminal charge" and that Article 6 para. 1
(art. 6-1) was therefore applicable.
31. The Court has already had to determine similar issues in other cases
(see the Weber judgment of 22 May 1990, Series A no. 177, p. 17, para. 30, and
the other judgments referred to therein). While it is recognized that States
have the right to distinguish between criminal offences and disciplinary
offences in domestic law, it does not follow that the classification thus
made is decisive from the viewpoint of the Convention. The notion of
"criminal charge" in Article 6 (art. 6) has an autonomous meaning and the
Court must satisfy itself that the line drawn in domestic law does not
prejudice the object and purpose of Article 6 (art. 6).
In order to determine whether the breach of privilege of which
Mr Demicoli was found guilty is to be regarded as "criminal" within the
meaning of Article 6 (art. 6), the Court will apply the three criteria
which were first laid down in the Engel and Others judgment of 8 June 1976
(Series A no. 22, pp. 34-35, para. 82) and have been consistently applied in
the Court's subsequent case-law (see, apart from the judgments referred to
above, the Öztürk judgment of 21 February 1984, Series A no. 73, and the
Campbell and Fell judgment of 28 June 1984, Series A no. 80).
32. It must first be ascertained whether the provisions defining the
offence in issue belong, according to the legal system of the respondent
State, to criminal law, disciplinary law or both concurrently.
The legal basis of the proceedings taken against Mr Demicoli was
provided by section 11 of the Ordinance (see paragraph 20 above). The
applicant argued that the origin of the Maltese law of Parliamentary
privilege is to be found in United Kingdom law and that breaches of privilege
are referred to as crimes in certain textbooks on English law. As noted by
the Commission and the Government, breach of Parliamentary privilege is not
formally classified as a crime in Maltese law. In its judgment of
16 May 1986 (see paragraph 15 above), the Civil Court ruled that "the law
that provides for the privileges and contempt of the House (chapter 179) is
not part of the criminal law of the country". The Constitutional Court, in
its judgment of 13 October 1986, did not find it necessary to decide whether
"the act constituting the contempt or breach of privilege amounts to a
criminal act or not."
33. However, as already noted above, the indication afforded by national
law is not decisive for the purpose of Article 6 (art. 6). A factor of
greater importance is "the very nature of the offence" in question (see,
inter alia, the above-mentioned Campbell and Fell judgment, Series A no. 80,
p. 36, para. 71, and the above-mentioned Weber judgment, Series A no. 177,
p. 18, para. 32).
In this context the applicant quoted from the records of the
Parliamentary sittings of 4, 17, 18 and 19 March 1986 to highlight the fact
that certain Members of the House equated the proceedings taken against him
with criminal proceedings. He pointed out that defamatory libel is a
criminal offence under the Press Act 1974 (see paragraph 21 above).
The Government, on the other hand, submitted that, although some
breaches of privilege may also constitute criminal offences, Parliamentary
privilege, being concerned with respect for the dignity of the House, pursued
a different aim from that of the criminal law. Moreover, defamatory libel
may not only constitute an offence under the criminal law, but may also give
rise to a civil claim for damages, which may include punitive damages.
Furthermore, the non-criminal nature of breaches of privilege was illustrated
by the fact that the Ordinance treats perjury before the House as equivalent
to perjury before a court in civil and not in criminal matters.
Mr Demicoli was not a Member of the House. In the Court's view, the
proceedings taken against him in the present case for an act of this sort
done outside the House are to be distinguished from other types of breach of
privilege proceedings which may be said to be disciplinary in nature in that
they relate to the internal regulation and orderly functioning of the House.
Section 11(1)(k) potentially affects the whole population since it applies
whether the alleged offender is a Member of the House or not and irrespective
of where in Malta the publication of the defamatory libel takes place. For
the offence thereby defined the Ordinance provides for the imposition of a
penal sanction and not a civil claim for damages. From this point of view,
therefore, the particular breach of privilege in question is akin to a
criminal offence under the Press Act 1974 (see, mutatis mutandis,
the above-mentioned Weber judgment, Series A no. 177, p. 18
para. 33 in fine).
34. The third criterion is the degree of severity of the penalty that the
person concerned risks incurring. The Court notes that in the present case,
whilst the House imposed a fine of 250 Maltese liri on the applicant which
has not yet been paid or enforced, the maximum penalty he risked was
imprisonment for a period not exceeding sixty days or a fine not exceeding
500 Maltese liri or both. What was at stake was thus sufficiently important
to warrant classifying the offence with which the applicant was charged as a
criminal one under the Convention (see the same judgment, ibid., p. 18,
para. 34).
35. In conclusion, Article 6 applied in the present case.
B. Compliance with Article 6 para. 1 (art. 6-1)
36. The applicant submitted that in the proceedings before the House of
Representatives he did not receive a fair hearing by an independent and
impartial tribunal. The political context in which the proceedings against
him were conducted "made a mockery of the whole concept of the independence
and the impartiality of the judiciary". This, he claimed, was evident from
statements made by Members of the House in relation to his case in the
official record of the Parliamentary sittings (see paragraph 14 above). He
maintained that in breach of privilege proceedings Members of Parliament sit
as victims, accusers, witnesses and judges. In his case it was the privilege
of the individual Members concerned that was in issue and not, as the
Government suggested, that of the whole House. Even if the Government's view
on this point were accepted, that would mean, in his view, that "each and
every Member of the House of Representatives is a judex in causa sua".
37. The Government argued that the House of Representatives was "an
independent and impartial tribunal established by law" for the purpose of
hearing the disciplinary charge against Mr Demicoli. The Maltese House of
Representatives was an independent authority "par excellence". The House was
independent of the executive and of the parties, its Members were elected for
a term of five years and its proceedings afforded the necessary guarantees.
Accordingly it fulfilled all the requirements of a tribunal set out in the
Ringeisen judgment of 16 July 1971 (Series A no. 13, p. 39, para. 95). The
independence of the House was sufficient to exclude any legitimate doubt as
to its impartiality. Moreover, the Members directly satirised by the article
intervened to defend the dignity of the House and not just their own
reputations.
38. The Commission took the view that the House of Representatives could
not be considered to be a court and did not fulfil the requirements of the
Convention as to independence or impartiality.
39. The Court, like the Commission, notes that the power of the Maltese
Parliament to impose disciplinary measures and to govern its own internal
affairs is not in issue. Moreover, the Court's task is not to review the
relevant law and practice in abstracto, but to determine whether the manner
in which the proceedings against Mr Demicoli were conducted gave rise to a
violation of Article 6 para. 1 (art. 6-1).
According to its case-law, "a 'tribunal' is characterised in the
substantive sense of the term by its judicial function, that is to say
determining matters within its competence on the basis of rules of law and
after proceedings conducted in a prescribed manner ... It must also satisfy
a series of further requirements - independence, in particular of the
executive; impartiality; duration of its members' terms of office; guarantees
afforded by its procedure - several of which appear in the text of
Article 6 para. 1 (art. 6-1) itself" (see the Belilos judgment of
29 April 1988, Series A no. 132, p. 29, para. 64).
40. In the circumstances of the present case the House of Representatives
undoubtedly exercised a judicial function in determining the applicant's
guilt. The central issue raised in this case is whether the requirement of
impartiality was duly respected. For the purposes of Article 6 para. 1
(art. 6-1) this must be determined according to a subjective test, that is on
the basis of the personal conviction or interest of a particular judge in a
given case, and according to an objective test, namely ascertaining whether
the judge offered guarantees sufficient to exclude any legitimate doubt in
this respect. In this context even appearances may be of a certain
importance, particularly as far as criminal proceedings are concerned
(see, amongst other authorities, the Hauschildt judgment of 24 May 1989,
Series A no. 154, p. 21, paras. 46-48).
41. The two Members of the House whose behaviour in Parliament was
criticised in the impugned article and who raised the breach of privilege in
the House (see paragraph 11 above) participated throughout in the proceedings
against the accused, including the finding of guilt and (except for one of
them who had meanwhile died) the sentencing.
Already for this reason, the impartiality of the adjudicating body in
these proceedings would appear to be open to doubt and the applicant's fears
in this connection were justified (see the above-mentioned Hauschildt
judgment, Series A no. 154, p. 23, para. 52).
42. Accordingly, there has been a breach of Article 6 para. 1
(art. 6-1) of the Convention on the point considered. It is therefore not
necessary to go into other aspects of this provision.
III. ALLEGED VIOLATION OF ARTICLE 6 PARA. 2 (art. 6-2)
43. The applicant submitted that the resolution of 10 February 1986 and
the motion of 4 March 1986 (see paragraphs 11 and 12 above) placed the burden
of proving innocence on the accused and accordingly violated
Article 6 para. 2 (art. 6-2) of the Convention.
The Government denied that the wording of the resolution and the
motion had this effect.
In view of the above finding of a violation of Article 6 para. 1
(art. 6-1), the Court does not consider it necessary to examine this issue.
IV. APPLICATION OF ARTICLE 50 (art. 50)
44. Article 50 (art. 50) provides:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said Party
allows only partial reparation to be made for the consequences of
this decision or measure, the decision of the Court shall, if
necessary, afford just satisfaction to the injured party."
Mr Demicoli claimed under this provision compensation for both
pecuniary and non-pecuniary damage, together with reimbursement of legal
costs and expenses referable to the domestic proceedings as well as those
before the Convention institutions. He further requested that the Court
direct the taking of certain legal measures.
A. Legal measures
45. The applicant requested the Court to bring about, with the
Government's concurrence, the passing of a Parliamentary resolution revoking
the two resolutions by which he was found guilty and fined, the amendment of
the Ordinance to repeal section 11(1)(k) and the repeal of all references to
breach of privilege proceedings in the Constitution of Malta. These measures
were opposed by the Government.
The Court notes that the Convention does not empower it to act on
this request. It recalls that it is for the State to choose the means to be
used in its domestic legal system to redress the situation that has given
rise to the violation of the Convention (see, mutatis mutandis, the Zanghì
judgment of 19 February 1991, Series A no. 194-C, p. 48, para. 26).
B. Damage
46. By way of compensation for pecuniary damage the applicant sought an
indemnity for the Lm 250 (Maltese liri) fine which, though still unpaid,
remains due. Since this fine has not been paid and no measures have been
taken to enforce payment, the Court sees no need to make any order.
47. The applicant also sought "a token contribution of Lm 10,000" by way
of compensation for non-pecuniary damage, not only for the fear and anguish
resulting from the "illegitimate trial to which he was subjected" in what he
described as an intimidatory atmosphere, but also for the loss of future
employment prospects in the public service because he had been found guilty
by Parliament.
48. Although it cannot be excluded that the applicant did suffer some
degree of distress, the Court, having regard to the circumstances of the
case, is of the opinion that the finding of a violation in the present
judgment constitutes in itself adequate just satisfaction under this head.
C. Costs and expenses
49. Mr Demicoli sought, in addition, reimbursement of costs and expenses
incurred in the proceedings in the Maltese courts and before the Convention
institutions.
The Court has consistently held that reimbursement may be ordered in
respect of costs and expenses that (a) were actually and necessarily incurred
by the injured party in order to seek, through the domestic legal system,
prevention or rectification of a violation, to have the same established by
the Commission and later by the Court and to obtain redress therefor, and (b)
are reasonable as to quantum (see, among other authorities, the Bricmont
judgment of 7 July 1989, Series A no. 158, p. 33, para. 101).
50. As regards the breach of privilege proceedings before the House of
Representatives, Mr Demicoli sought Lm 600 by way of "attendance" and
"extrajudicial" fees.
As regards the constitutional action challenging the validity of the
breach of privilege proceedings, he sought Lm 901.90 (the amount of the
official taxed bill of costs) as well as a further Lm 300 by way of
"extrajudicial" fees.
51. For the proceedings before the Commission, the applicant sought
Lm 1,828 for travel and subsistence expenses for the appearance of himself,
his lawyer and his legal procurator at its hearing, in addition to Lm 3,000
by way of "judicial and extrajudicial" fees.
As to the proceedings before the Court, he sought Lm 995 by way of
travel and subsistence expenses for himself and his lawyer and also Lm 1,500
by way of fees.
52. Most of the amounts claimed were contested by the Government on
various grounds, notably as being excessive.
The Delegate of the Commission considered that the applicant should
receive a sum to cover his reasonable legal costs, but made no proposal as to
quantum, leaving the matter to the Court's discretion.
53. Taking its decision on an equitable basis, as required by Article 50
(art. 50), and applying the criteria laid down in its case-law, the Court
considers that legal costs and travel and subsistence expenses may be assessed
at Lm 5,000 for both the national and the Strasbourg proceedings.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Rejects the Government's preliminary objection;
2. Holds that Article 6 para. 1 (art. 6-1) of the Convention applied in
the instant case and that there has been a breach of it;
3. Holds that it is not necessary to examine the case under
Article 6 para. 2 (art. 6-2);
4. Holds that the respondent State is to pay to the applicant the sum of
Lm 5,000 (five thousand Maltese liri) in respect of all costs and
expenses;
5. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 27 August 1991.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and
Rule 53 para. 2 of the Rules of Court, the concurring opinion of
Mr Pinheiro Farinha, approved by Mr Thór Vilhjálmsson and Mr Spielmann, is
annexed to this judgment.
Initialled: R.R.
Initialled: M.-A. E.
CONCURRING OPINION OF JUDGE PINHEIRO FARINHA, APPROVED
BY JUDGES THÓR VILHJÁLMSSON AND SPIELMANN
(Translation)
I believe we should have added the following to paragraph 27:
"In these circumstances it is unnecessary to examine whether the
six-month period began to run only on the date - 1 May 1987 - when Malta's
declaration under Article 25 (art. 25) gave the applicant access to the
Commission."
The question remains open and the Court does not propose to decide
it for the time being (see, mutatis mutandis, the Bozano judgment of
18 December 1986, Series A no. 111, p. 22, para. 50 in fine). It will be
decided at the proper time.
The text as worded could give the impression that the question has
now been decided.