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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.