Principle of impartiality
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 [*]. 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.
The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that the impartiality of the adjudicating body in the proceedings in question would appear to be open to doubt and the applicant’s fears in this connection had been justified. It noted in particular that the two Members of the House whose behaviour in Parliament had been criticised in the impugned article and who had raised the breach of privilege in the House had 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.