CEDH · CASELAW;REPORTS;ENG — 15 mars 1990

.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 }    Application No. 13057/87     Carmel DEMICOLI   against   MALTA     REPORT OF THE COMMISSION   (adopted on 15 March 1990)     TABLE OF CONTENTS                                                             page   I.       INTRODUCTION                                           1         (paras. 1-13)           A.   The application (paras. 2-4)                       1           B.   The proceedings (paras. 5-9)                       1           C.   The present Report (paras. 10-13)                  2   II.      ESTABLISHMENT OF THE FACTS                             3         (paras. 14-28)           A.   Particular circumstances of the case               3             (paras. 14-26)           B.   The relevant domestic law                          6             (paras. 27-28)   III.     OPINION OF THE COMMISSION                             10         (paras. 29-53)           A.   Points at issue (para. 29)                        10           B.   Article 6 para. 1 of the Convention               10             (paras. 30-47)               a.   Applicability of Article 6 para. 1                 (paras. 31-37)                                10               b.   Compliance with Article 6 para. 1                 (paras. 38-47)                                12           C.   Article 6 para. 2 of the Convention               13             (paras. 48-51)           D.   Recapitulation (paras. 52-53)                     14   Concurring opinion of Mr.   S. Trechsel                         15   APPENDIX I       History of the proceedings                    16   APPENDIX II      Decision on the admissibility                 17                 of the application   I.       INTRODUCTION   1.       The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The application   2.       The applicant is Carmel Demicoli, a Maltese citizen born in 1946 and resident in Malta.   The applicant is represented before the Commission by Dr.   Giovanni Bonello, an advocate practising in Valletta.   3.       The Government are represented by their Agent, Mr.   Noel Buttigieg Scicluna.   4.       The case concerns the proceedings for breach of privilege instituted against the applicant by the Maltese House of Representatives in relation to a satirical article published in the applicant's periodical.   The application raises issues under Article 6 paras. 1 and 2 of the Convention.   B.       The proceedings   5.       The application was introduced on 22 May 1987 and registered on 6 July 1987.           On 12 December 1987, the Commission decided, pursuant to Rule 42 para. 2 (b) of its Rules of Procedure, that notice of the application should be given to the respondent Government and that they should be invited to present before 25 March 1988 their written observations on the admissibility and merits of the application.           The Government sent their written observations on 24 March 1988.   The applicant's representative submitted the applicant's written observations in reply on 19 May 1988.           On 11 October 1988, the Commission decided, pursuant to Rule 42 para. 3 (b) of its Rules of Procedure, to invite the parties to make further submissions at a hearing on the admissibility and merits of the application.           At the hearing, which was held on 15 March 1989, the applicant was represented by Dr.   Giovanni Bonello and Mr.   Mario Mifsud Bonnici. The Government were represented by Dr.   Anthony Borg Barthet, Assistant to the Attorney General of Malta, and Dr.   Lawrence Quintano, Counsel for the Republic.   6.       On 15 March 1989, the Commission declared the application admissible.   The parties were then invited to submit any additional observations on the merits of the application.   7.       On 9 June 1989, the Government submitted additional submissions on the case.   8.       On 8 July 1989 and on 9 December 1989, the Commission considered the state of proceedings of the case.   On 9 March 1990, the Commission deliberated on the merits of the application and took the final votes in the case.   9.       After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.       The present Report   10.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes in plenary session, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      E. BUSUTTIL                      A.S. GÖZÜBÜYÜK                      J.C. SOYER                (Members present                      H.G. SCHERMERS             at the hearing)                      H. DANELIUS                      G. BATLINER                      H. VANDENBERGHE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                 Mr.   L. LOUCAIDES           The text of the Report was adopted by the Commission on 15 March 1990 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   11.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is           1)   to establish the facts, and           2)   to state an opinion as to whether the facts found disclose             a breach by the State concerned of its obligations under             the Convention.   12.      A schedule setting out the history of the proceedings before the Commission is attached hereto as APPENDIX I and the Commission's decision on the admissibility of the application as APPENDIX II.   13.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.      ESTABLISHMENT OF THE FACTS   A.       Particular circumstances of the case   14.      The applicant is the Editor of the political satirical periodical "MHUX fl-interess tal-poplu" (NOT in the people's interest).   15.      On 3 January 1986, an article appeared in the applicant's periodical commenting on a particular parliamentary debate.   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 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, that 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 measure my temperature."   16.      On 13 January 1986, Mr.   Debono Grech and Mr.   Bartolo brought the article to the attention of the House of Representatives as an alleged breach of privilege.   On 10 February 1986 the Speaker announced that the Chair had examined the alleged breach of privilege and found a prima facie case of breach of privilege.   The House of Representatives proceeded to pass a motion proposed by Mr.   Debono Grech which stated that the article entitled "Mix-Xena tax Xandir" (from the Broadcasting Scene) published in the issue dated 3 January 1986 of the applicant's periodical be deemed as constituting 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).   17.      On 4 March 1986, the House of Representatives considered a motion proposed 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 Resolution stated as follows:           "That the House in virtue of its Resolution decided in the         Sitting of 10 February 1986 that the article entitled         'Mix-xena tax-Xandir' (literally 'From the broadcasting         scene') which appeared on page 4 of 'Mhux fl-Interess         tal-Poplu' (lit. 'Not in the People's Interest') of 3 January         1986 be deemed as constituting a breach of privilege according         to Section 11(1)(k) of the House of Representatives (Powers         and Privileges) Ordinance;         The House orders Carmel Demicoli of Flat 2, Ferrini Court,         University Street, Msida, as editor of the newspaper 'Mhux         fl-Interess tal-Poplu' to appear before it in the Sitting of         17 March 1986 at 6.30 pm to state why he should not be         declared guilty of a breach of privilege according to Section         11(1)(k) of the House of Representatives (Powers and         Privileges) Ordinance;         and         The House also orders the subpoena of every witness that the         Clerk of the House will be asked to summon."   18.      In the following debate, the then Leader of the Opposition, Dr.   Fenech Adami, drew attention to the wording of the motion 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.   Another member, Dr.   Cassar, gave his opinion that in the proposed motion they 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 17 March you will say why you are         not guilty.   And if even you were to convince us that         you are not guilty we all say that you are not guilty;         if you will not convince us we will say you are guilty."           The House proceeded to adopt the resolution.   19.      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, which were penal in nature, violated his right to be given a fair hearing by an independent and impartial court.   20.      On 17 and 18 March 1986, the applicant appeared before the House of Representatives with his lawyer.   The applicant was asked whether he pleaded guilty or not but stated that he would not answer. 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 these procedures were to be considered as being of a criminal nature.   A Minister, Dr.   Cassar, proceeded to bring forward the evidence against the applicant, reading out the impugned article and concluding that it insulted the two members of the House in connection with their conduct in the House.   The two members of the House concerned were invited to comment by the Speaker and both made statements to the effect that they considered themselves offended and ridiculed in their capacity as members of the House.   21.      On 19 March 1986, the House by resolution found the applicant guilty of breach of its privileges.   The House postponed the question of punishment until another sitting.   22.      On 16 May 1986, the Civil Court delivered judgment in favour of the applicant.   The Court in its judgment found that the proceedings were not criminal in nature:           "The House of Representatives is not an ordinary court, more         so because of the system of checks and balances already         referred to and to which reference will again be made; it         also has quasi-judicial functions, apart from its principal         function of Legislator.   And the law that contemplates the         privileges and contempt of the House (Cap. 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 contemplated by the Criminal Code and those         contemplated by this particular law.   However, the decision         of the House is not a criminal conviction that emerges from         a decision of the Criminal Court, and the declaration of         guilt for contempt and the consequential sanctions that emerge         from such a declaration, have the same form of criminal         penalties, admonitions, payment of money, imprisonment, yet         they are not criminal convictions ..."           The Court continued:           "The House may proceed against the contempt where, among         other things, it results that:                   '(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                 Cap. 179)'.           For the House to have jurisdiction to proceed against the         contempt there must be a defamatory libel (a mixed question         of fact and of 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; as this is so the         declaration of the existence of the defamatory libel must         firstly be made objectively by the Court, and then the House         must proceed against the contempt."           The Court concluded that the law in question (House of Representatives (Powers and Privileges) (Chapter 179)) did not authorise the House of Representatives of its own initiative to define what is a defamatory libel, and 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 "status quo ante" 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 the applicant on the basis of the resolution and motion in question.   23.      On 13 October 1986, the Constitutional Court, on appeal, reversed the judgment of the Civil Court finding that the Constitution authorised Parliament to enact laws establishing the privileges, powers and immunities of the Constitution and that accordingly Chapter 179 of the Laws of Malta was not in violation of the Constitution and that in those circumstances the lower court had not been entitled to look further into the matter or to give remedies.   24.      On 9 December 1986, the House of Representatives summoned the applicant before them in order to decide the penalty to be imposed upon him.   The applicant, when asked if he had anything to say, stated through his lawyer that he had nothing to say regarding the punishment but would comply with the House's verdict.   The applicant was fined Lm 250.   25.      The applicant has not as yet paid the fine and no steps have been taken to enforce recovery of the fine.   26.      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.   B.       The relevant domestic law   27.      The privileges of the House of Representatives as applicable at the relevant time were set out in the Council of Government (Privileges and Powers) Ordinance (1942- 1983) contained in Chapter 179 of the Revised Laws of Malta.           Section 11 provides:           "(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:                 (a)   any act of contempt of the authority of the Council               by words or gestures committed by any witness or by any               other person in the presence of the Council or of a               Committee of the Council;                 (b)   any insult or disrespect to the person of the               President of the Council and any insult or disrespect               to a Member of the Council even if such Member be not               present at the time of the insult or disrespect, when               in either case the insult or disrespect is proferred               or committed in the presence of the Council when sitting;                 (c)   any infringement of any regulations, order, or               directions made or given by the Council relating to the               admission of strangers to the Council Chamber and their               behaviour therein;                 (d)   any offer to or any acceptance by a Member or an               officer, of a bribe to influence him in his conduct               as such Member or officer;                 (e)   any assault upon, obstruction or insult of a Member               while on his way to or from the Council or on account of               his conduct in the Council, or any endeavour to compel a               Member by force, insult or menace to declare himself in               favour of or against any proposition or matter pending               or expected to be brought before the Council;                 (f)   the sending to a Member of the Council of any               threatening letter respecting his conduct in the Council;                 (g)   any assault upon, interference with, or resistance to               an officer of the Council while in the act of performing,               or on account of having performed, his duty;                 (h)   the creation of or participation in any disturbance in               the Council or in the vicinity of the Council Chamber               while the Council is sitting, whereby the proceedings of               the Council are or are likely to be interrupted;                 (i)   any tampering with, deterring, threatening, beguiling               or in any way unduly influencing any witness in regard to               evidence to be given by him before the Council or any               Committee thereof;                 (j)   the presenting to the Council or to any Committee               thereof of any false, untrue, fabricated or falsified               document with intent to deceive the Council or that Committee;                 (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;                 (l)   the wilful or reckless publication of any false or               perverted report of any debate or proceedings of the House               or a Committee thereof, or the wilful or reckless               misrepresentation of any speech made by a Member in the House               or in a Committee thereof.           (2)   This section shall not be in derogation of the powers         conferred on the President of the Council by the Standing Orders         thereof.           (3)   Any imprisonment awarded by the Council which has not         been expiated, in whole or in part, on the last day of the         session of the Council during which it was awarded, shall be         deemed to have been remitted by operation of this subsection,         as from the day immediately following the last day of that         session.           (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; and 'broadcast' means the         broadcast of words or of visual images by means of wireless         telegraphy or wire or both, whether or not such words or         images are in fact received by any person.           (5)   A person shall be deemed guilty of the acts mentioned in         paragraphs (j) and (k) of subsection (1) of this section if         the publication 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.           (6)   In the case of a person guilty of an act mentioned in         paragraph (j) of subsection (1) of this section the House may         in addition to the punishments established in subsection (1)         of this section, order in the case of a newspaper that in a         subsequent issue thereof not later than the next but one,         and in the case of a broadcasting medium that on the day         immediately following that on which the order is given,         the motion that the accused be found guilty of such act,         approved by the House be published or broadcast as the case         may be free of charge in the same language in which the         offence was committed; and if at the time of approval of such         motion or immediately thereafter the newspaper has ceased         publication or the broadcasting medium has ceased to operate,         or in the case of any other publication, the House may in the         order or in a subsequent order, order that the motion be         published or broadcast at the expense of the person so found         guilty in another newspaper or on another medium within a         period not exceeding one month.           (7)   In the case of a person found guilty of an act mentioned         in paragraph (k) of subsection (1) of this section the House         may in addition to the punishments established in subsection         (1) of this section order that the offender publish, at such         date and time as the House may establish, free of charge, in         the same newspaper or on the same broadcasting medium, as the         case may be, a statement by way of contradiction or explanation.         (8)   Default of compliance with an order made under subsection         (6) or (7) of this section shall be deemed to be contempt of         the House and subject to the same penalties as provided in         subsection (1) of this section.           (9)   (i)   Any person who is an accomplice in any of the acts         mentioned in paragraphs (a) to (k) of subsection (1) of this         section shall be deemed to be guilty of the same acts and         shall be liable to the penalties laid down in the said         subsection;           (ii)   For the purpose of this section 'accomplice' shall have         the same meaning as is assigned to it by Section 42 of the         Criminal Code:         Provided that any reference therein made to a crime shall be         construed to be a reference to the acts referred to in         paragraphs (a) to (k) of subsection (1) of this section."   28.      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 pounds 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 (multa)."   III.     OPINION OF THE COMMISSION   A.       Points at issue   29.      The principal issues to be determined are:   -        whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in respect of the proceedings for breach of privilege brought against the applicant in the House of Representatives;   -        whether there has been a violation of Article 6 para. 2 (Art. 6-2) of the Convention as a result of the resolutions of the House of Representatives dated 10 February 1986 and 4 March 1986.   B.       Article 6 para. 1 (Art. 6-1) of the Convention   30.      The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention reads as follows:           "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."   a.       Applicability of Article 6 para. 1 (Art. 6-1)   31.      The Commission will first consider whether the proceedings against the applicant for breach of privilege involved the determination of a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   The Government contend that the charge against the applicant of breach of privilege was disciplinary.   They also rely on the decision of the Civil Court of 16 May 1986 in which the Court held that the applicant was not facing a criminal charge.   32.      As regards the criteria to apply when deciding whether or not a particular type of offence involves a "criminal charge" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, the European Court has underlined that the term is to be interpreted as having an autonomous meaning in the context of the Convention and not on the basis of its meaning in domestic law.   While the legislation of the State concerned is relevant, it provides no more than a starting point in ascertaining whether there was a "criminal charge" against a person.   The prominent place given in a democratic society to the right to a fair trial necessitates a "substantive" rather than a "formal" approach.   Regard must therefore be had to the realities of the procedure in question in order to determine whether there has been a "charge" within the meaning of Article 6 (Art. 6) of the Convention (see e.g. Eur. Court H.R., Engel and others judgment of 8 June 1976, Series A no. 22, pp. 33-34, para. 80; Deweer judgment of 27 February 1980, Series A no. 35, pp. 21-22, para. 41; Adolf judgment of 26 March 1982, Series A no. 49, p.    15, para. 30).   33.      The Court has developed specific criteria in order to distinguish "criminal" from other possible types of offences (Engel and others judgment, loc. cit. p. 35, para. 82):           (1)   "Whether the provisions defining the offence belong,         according to the legal system of the respondent State to         criminal law, disciplinary law or both concurrently".         This fact is however not decisive.           (2)   The "very nature of the offence", which is a factor         of greater importance.           (3)   The "degree of severity of the penalty which the         person concerned risks incurring".   34.      Applying these criteria to the present case, the Commission observes that breach of parliamentary privilege is not formally classified as a crime in Maltese law.   The applicant has drawn the Commission's attention to the terminology employed in certain constitutional text books relating to the United Kingdom Parliament, where the term "crime" is used.   In view of the decisions of the Maltese courts in this case however, the Commission is unable to find that breach of privilege is classified as a criminal offence under Maltese law.   35.      As to the nature of the offence, which is a factor of greater weight, defamatory libel is a criminal offence provided for in Sections 3 and 11 of the Press Act 1974.   The Commission recalls that the Civil Court considered that the defamatory libel in Section 11 of the Ordinance governing