CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mars 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    AS TO THE ADMISSIBILITY OF     Application No. 13057/87 by Carmel DEMICOLI against Malta             The European Commission of Human Rights sitting in private on 15 March 1989, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      E. BUSUTTIL                      A.S. GÖZÜBÜYÜK                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      H. VANDENBERGHE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                 Mr.   L. LOUCAIDES                   Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 22 May 1987 by Carmel DEMICOLI against Malta and registered on 6 July 1987 under file No. 13057/87;           Having regard to:   -        the first report provided for in Rule 40 of the Rules of Procedure of the Commission;   -        the observations submitted by the respondent Government on 24 March 1987 and the observations in reply submitted by the applicant on 19 May 1987;     - ii -     13057/87     -        the second report provided for in Rule 40 of the Rules of Procedure of the Commission;   -        the submissions made by the parties at the hearing on 15 March 1989;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case as agreed by the parties may be summarised as follows:           The applicant is a Maltese citizen born in 1946 and resident in Malta.   He is the Editor of the political satirical periodical "MHUX fl-interess tal-poplu" (NOT in the people's interest).           On 10 February 1986 the House of Representatives (the Maltese Parliament) resolved that an article entitled "Mix-Xena tax Xandir" (from the Broadcasting Scene) published in the issue dated 3 January 1986 of the applicant's periodical constituted a breach of privilege under Section 11(1)(k) of the Council of Government (Privileges and Powers) Ordinance (1942 - 1983) (Chapter 179 of the Revised Laws of Malta).           Extracts from the impugned article include the following:           "SEND IN THE CLOWN         Some felt offended that I had lately written that, during         the budget debates, I went berserk and started throwing         tomatoes at the television set.   And this happened when         certain members of Parliament had not as yet spoken in the         debates.   I will let your fertile imagination take its         course to imagine what I did when two of them in particular         were speaking.           THE PARLIAMENTARY CLOWN         I do not know if I shall be in breach of the Sedition Laws         if I describe a minister as a clown.   But I cannot fail to         comment on <G's> behaviour in Parliament.   It seems that G         deliberately tried to make us laugh.   If this is so, G is         ridiculing what is supposed to be the highest institution         of the land...           I booed this last one so heartily that the neighbours thought         that I had had an epileptic fit.   To crown it all, Mrs.   G,         that nosy parker, entered my home unannounced and without         permission and she found me on the floor in an ecstasy of         booing.   She thought I had become a lunatic.   Really, the         scene in front of the television was scary.   B was         gesticulating and talking rubbish on the Magruvision         Television set while I lay sprawled on the floor gesticulating         like a madman.   And I did all this so that I may have enough         material for 'Mhux'.   To persuade Mrs.   G that nothing was         really wrong with me I had to allow her to take my pulse         rate, examine my tongue and measure my temperature."           On 4 March 1986, the House of Representatives upon a motion moved by Mr.   Joseph Debono-Grech, a Minister of the Government and one of the two members who felt libelled by the article published in the applicant's newspaper, resolved to direct the applicant to be summoned by notice under Section 13(2) of the Ordinance to answer a charge under Section 11(1)(k) of the Ordinance.   Section 11(1)(k) provides: "11.(1)   The Council shall have the power to punish with a reprimand or with imprisonment for a period not exceeding sixty days or with a fine not exceeding five hundred pounds or with both such fine and such imprisonment, any person, whether a Member of the Council or not, guilty of any of the following acts -   (k)      the publication of any defamatory libel on the Speaker or any Member in the House or in a Committee thereof;"           On 13 March 1986, the applicant challenged in the Civil Court of Malta, in its constitutional jurisdiction the proceedings instituted against him by the House of Representatives on the grounds that these proceedings violated his right to be given a fair hearing by an independent and impartial court.           Meanwhile, on 19 March 1986, after the applicant had appeared before the House, the House had by resolution found him guilty of breach of its privileges.           On 16 May 1986, the Civil Court delivered judgment for the applicant placing him in the position he was prior to the proceedings being taken against him by the House of Representatives and ordering that no further proceedings be taken against him on the basis of the two resolutions of the House of Representatives.           On 13 October 1986, the Constitutional Court, on appeal, reversed the judgment of the Civil Court in effect reviving the parliamentary proceedings against the applicant.           On 9 December 1986, the House of Representatives found the applicant guilty of the publication of a defamatory libel on Mr. Joseph Debono-Grech and Mr.   Freddie Bartolo and fined the applicant Lm 250.           When the charge was read out to the applicant, he chose to remain silent but was threatened with further proceedings for contempt of Parliament.   During the course of proceedings the applicant alleges that he and his lawyer were abused and several members of Parliament declared that proceedings had been taken against the applicant to make an example of him to all and sundry.   When the House of Representatives deliberated as to the guilt of the applicant and as to the punishment to be imposed on him, the applicant was not allowed to be present.           The applicant has not as yet paid the fine and no steps have been taken to enforce recovery of the fine.           The two members of the House of Representatives referred to in the article participated throughout in the proceedings brought against the applicant, save that Mr.   Bartolo died before the applicant was sentenced in December 1986.           Malta ratified the Convention and the Government of the Republic of Malta recognised the competence of the Commission to deal with applications from individuals for the period from 1 May 1987 to 30 April 1992.   This application was introduced on 22 May 1987 and registered on 6 July 1987.         With effect from 19 August 1987, which was subsequent to the time when the applicant exhausted his domestic remedies and made his application to the Commission, a new domestic law of Malta, the European Convention Act 1987, incorporated the Convention into the domestic law of Malta.   Section 7 of that Act provides:   "No contravention of the Human Rights and Fundamental Freedoms committed before 30 April 1987 shall give rise to an action under ... this Act".     COMPLAINTS           The applicant claims that his rights under Article 6 para. 1 of the Convention have been violated in a number of ways and that his right to the presumption of innocence under Article 6 para. 2 has also been violated.   In particular he claims that he has had criminal charges laid against him and that these have been dealt with by the House of Representatives, a body which is not a "tribunal" within the meaning of Article 6 para. 1 of the Convention.   Further he claims that the House was not independent and impartial because its proceedings were initiated by one of its members who had a direct interest in the subject-matter of those proceedings and because the House of Representatives acted as both accuser and judge in these proceedings.   He claims that the hearing he was given was not fair because of the abuse offered to him and his lawyers and because of the threats made to him during these proceedings of the possibility of further proceedings for contempt of Parliament.   He also claims that his exclusion from some of the proceedings meant that they were not public.           He claims that his right to the presumption of innocence under Article 6 para. 2 of the Convention were breached by the resolutions of the House of Representatives of 10 February 1986 and 4 March 1986.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 22 May 1987 and registered on 6 July 1987.   On 12 December 1987, the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on its admissibility and merits pursuant to Rule 42 para. 2 (b) of the Rules of Procedure.           The observations of the respondent Government were submitted on 24 March 1987 and the observations in reply submitted by the applicant on 19 May 1987.           The Commission resumed its examination of the admissibility of the application on 11 October 1988 and decided, pursuant to Rule 42 para. 3 (b) of its Rules of Procedure, to invite the parties to make further oral submissions at a hearing on the admissibility and merits of the application.           At the hearing, which was held on 15 March 1989, the parties were represented as follows:   For the respondent Government   Dr.   Anthony Borg Barthet         Assistant to the Attorney General   Dr.   Lawrence Quintano            Counsel for the Republic   For the applicant   Dr.   Giovanni Bonello             Advocate   Mr.   Mario Mifsud Bonnici         Legal Procurator   Mr.   Carmel Demicoli              Applicant     THE LAW           The applicant complains that the proceedings for breach of privilege brought against him before the Maltese House of Representatives violated his rights under Article 6 para. 1 (Art. 6-1) of the Convention.   He submits that the charges were criminal in nature and that the House of Representatives did not constitute an "independent or impartial tribunal" within the meaning of Article 6 para. 1 (Art. 6-1).   He further complains that he did not receive a fair hearing before the House and that his right to presumption of innocence guaranteed under Article 6 para. 2 (Art. 6-2) of the Convention was breached by the resolutions of 10 February 1986 and 4 March 1986 passed by the House.           The Government argue that the application is incompatible ratione temporis and also that the applicant has failed to comply with the requirements of Article 26 (Art. 26) of the Convention as regards the introduction of the application within six months of the final decision and as regards the exhaustion of domestic remedies.   Even assuming that this was not the case, the Government further submit that the applicant's complaints fall outside the scope of Article 6 (Art. 6) of the Convention, since they concern the determination of a disciplinary rather than a criminal charge.           The Commission has examined each of these issues in turn.           a) Ratione temporis           The Government argue that the Commission is incompetent to review applications alleging violations of the Convention committed prior to 1 May 1987 and refer to Section 7 of Act XIV of 1987 which states that no contravention of human rights committed before 30 April 1987 shall give rise to an action under the Act.           The competence of the Commission however is concerned only with the Maltese declaration under Article 25 (Art. 25) of the Convention and not with the terms of the statute incorporating the Convention into domestic law.   The Maltese declaration is not limited by way of time or stated to be prospective only.   The Commission recalls that in the case of De Varga-Hirsch v.   France (No. 9559/81, Dec. 9.5.83, D.R. 33 pp. 158, 209-11) it considered the effect of the French declaration and held that in the absence of an express limitation defining the past temporal scope of the right of individual petition, the Commission had jurisdiction to consider complaints predating the declaration.   The Commission finds therefore that it has jurisdiction ratione temporis in the present case to deal with the applicant's complaints against Malta.           b) Article 26 (Art. 26) of the Convention           The Government argue that since the applicant was found guilty of contempt by the House of Representatives on 19 March 1986 and the application was only introduced on 22 May 1987, the applicant has failed to introduce his complaints within the requisite six months period.   They also submit that the applicant has in any case failed to exhaust domestic remedies, since he failed to defend himself properly or to seek a declaration that the fine was not payable.           As regards the six months rule, the Commission recalls that while indeed the applicant was found guilty of breach of privilege on 19 March 1986, the proceedings were suspended pending the outcome of the constitutional action instituted in the courts by the applicant. Following the Constitutional Court's decision on 13 October 1986, the proceedings before the House of Representatives recommenced and the applicant was again summoned before it on 9 December 1986 and sentenced to a fine.   Since it appears that the House could have before this decided to revoke or reverse its previous decisions, the Commission finds that the date of sentencing, i.e. 9 December 1986, must be taken as the culmination of the proceedings against him and the final decision for the purposes of Article 26 (Art. 26) of the Convention. It follows that the application, introduced on 22 May 1987, was made within the six months time limit.           As regards non-exhaustion, the Commission recalls that Article 26 (Art. 26) of the Convention only requires the exhaustion of such remedies which relate to the breaches of the Convention alleged and at the same time can provide effective and sufficient redress.   An applicant does not need to exercise remedies which, although theoretically of a nature to constitute a remedy, do not in reality offer any chance of redressing the alleged breach (cf.   No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78).           It is furthermore established that the burden of proving the existence of the available and sufficient domestic remedies lies upon the State invoking the rule (cf.   Eur.   Court H.R., Deweer judgment of 27 February 1980, Series A no. 35, p. 15, para. 26 and Commission's decision No. 9013/80, Dec. 11.12.82, D.R. 30 p. 96 at p. 102).           In the present case, the Commission finds no indication that the applicant would have any possibility of bringing proceedings to nullify the proceedings brought by the House of Representatives.   The Commission also finds no substance in the allegation that the applicant failed to exhaust domestic remedies by failing to defend himself properly in those proceedings or by failing to seek a declaration that the fine was not payable.   Neither of these proposed remedies would in fact offer any redress against the alleged violations.   Accordingly, the application cannot be declared inadmissible for non-exhaustion of domestic remedies.           c) Article 6 paras. 1 and 2 (Art. 6-1-2) of the Convention           The Government submit inter alia that the applicant's complaints fall outside the scope of Article 6 paras. 1 and 2 (Art. 6-1-2) of the Convention since they involve disciplinary charges concerning the internal discipline and effective functioning of the House rather than the determination of criminal charges.   They refer to the decisions of the Maltese courts which held that the charge that the applicant faced was not criminal.   They contend that in any case, even if this was not the case, the applicant's complaints are manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           The applicant argues that breaches of privilege are in fact classified as crimes and that in dealing with the charges, the Speaker of the House of Representatives and other members considered the proceedings as criminal in nature.   The applicant also relies on the penalties attached to breach of privilege - maximum of Lm 500 fine and 60 days imprisonment - as indicating the criminal nature of this offence.   He argues that in determining this criminal charge the House of Representatives did not and could not constitute an impartial or independent tribunal as required by the provisions of the Convention.           Article 6 para. 1 (Art. 6-1) of the Convention provides :           "In the determination of his civil rights and         obligations or of any criminal charge against him,         everyone is entitled to a fair and public hearing         within a reasonable time by an independent and         impartial tribunal established by law."           Article 6 para. 2 (Art. 6-2) of the Convention provides :           "Everyone charged with a criminal offence shall be         presumed innocent until proved guilty according to law."           The Commission has made a preliminary examination of the parties' observations on the issues arising under these provisions. It considers that the applicant's complaints raise issues of fact and law which are of such complexity that their determination should depend upon a full examination of the merits.   The application cannot therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case.       Secretary to the Commission              President of the Commission              (H.C. KRÜGER)                           (C.A. NØRGAARD)