*47

Demicoli v. Malta

Series A No. 210

Application No. 13057/87

(1992) 14 E.H.R.R. 47

Times L.R., October 15, 1991

(Parliamentary privilege, alleged defamation and fair hearing)

Before the European Court of Human Rights

ECHR

(The President, Judge Ryssdal; Judges Cremona, Thór Vilhjálmsson, Pinheiro

Farinha,Sir Vincent Evans, Bernahardt, Spielmann, Valticos, Foighel)

27 August 1991

The applicant was the editor of a political satirical periodical. In 1986, he published an article that criticised the performance of two Members during a Parliamentary debate: amongst other things, the Minister was described as a ' clown'. Upon complaint, the House of Representatives found the applicant guilty of contempt. Proceedings in the Maltese courts challenging the jurisdiction of the House of Representatives ended with the Constitutional Court affirming the House's jurisdiction. Sub-sequently, the applicant was fined 250 Maltese liri (Lm) and ordered to print in his periodical the resolution passed by the House concerning the contempt. The applicant alleged violations of Article 6 of the Convention.

Held, unanimously

(1) that Article 6 applied;

(2) that Article 6(1) had been violated;

(3) that it was unnecessary to examine other points under Article 6;

(4) that costs and expenses of 5.000 Lm be awarded under Article 50.

1. Preliminary Objections: Exhaustion of local remedies: six month rule, date of final decision. (Art. 26).

The relevant final decision for the 'six month rule' was the sentencing decision of the House of Representatives in December 1986 and not the decision of the Constitutional Court in October 1986. [25]-[27]

Fair Trial: Criminal charge; applicability to Parliamentary contempt proceedings. Impartial Tribunal: requirements. (Art. 6(1)).

2.

(a) Applying the criteria laid down in the earlier case law, the Court found that the proceedings against the applicant constituted a ' criminal charge' for the purposes of Article 6(1), notwithstanding that breach of Parliamentary privilege was not formally classified as a crime under Maltese law. Since the applicant was not a Member of the House, the contempt proceedings did not relate to the internal regulation and orderly functioning of the House: they were akin to criminal proceedings rather than disciplinary in character. Furthermore, the penalties potentially available (imprisonment for up to 60 days or a fine of up to 500 Lm) were sufficiently serious to warrant classifying the offence as criminal. [30]-[35]

(b) The Court found that the impartiality of the House as an adjudicating body had been open to doubt because the two Members whose behaviour in Parliament had been criticised in the *48 impugned article and who had raised the question of breach of privilege, took part in the proceedings throughout, including the verdict on and sentencing of the applicant. Accordingly, the Court found a breach of Article 6(1) on the facts of the case without having to express a view on the Commission's opinion that the House of Representatives could not be considered to be a court and did not fulfil the Convention's requirements as to independence or impartiality. [36]-[42]

(c) It was unnecessary to rule on the alleged violation of Article 6(2). [43]

Just Satisfaction: Measures of execution; powers of European Court. Costs and expenses: award made. (Art. 50).

3.

(a) The Court reaffirmed that the Convention did not empower it to direct a State how it should give effect to the Court's judgments. [45]

(b) In the circumstances of the case, the finding of violation constituted adequate just satisfaction for any non-pecuniary injury. [46]-[48]

(c) On an equitable basis, an award of 5,000 Lm was made for legal costs, travel and subsistence expenses in both the national and the Strasbourg proceedings. [49]-[53]

Representation

Dr. A. Borg Barthet, Attorney General, and Dr. L. Quintana, Senior Counsel, for the Republic of Malta.

Mr. E. Busuttil (Delegate), for the Commission.

Dr. G. Bonello, advocate, for the applicant.

The following cases were referred to in the judgment:

1. Weber v. Switzerland (1990) 12 E.H.R.R. 508.

2. Engel v. Netherlands, 1 E.H.R.R. 647.

3. Öztürk v. Germany (1984) 6 E.H.R.R. 409.

4. Campbell and Fell v. United Kingdom (1985) 7 E.H.R.R. 165.

5. Ringeisen v. Austria, 1 E.H.R.R. 455.

6. Belilos v. Switzerland (1988) 10 E.H.R.R. 466.

7. Hauschildt v. Denmark (1990) 12 E.H.R.R. 266.

8. Zanghi v. Italy, Series A No. 194-C, not yet reported.

9. Bricmont v. Belgium (1990) 12 E.H.R.R. 217.

The following further case was referred to in the Concurring Opinion of Judge Pinheiro Farinha and others:

10. Bozano v. France (1987) 9 E.H.R.R. 297.

The following further cases were referred to in the Commission's Opinion:

11. Deweer v. Belgium, 2 E.H.R.R. 439.

12. Adolf v. Austria, 4 E.H.R.R. 313.

13. Le Compte, Van Leuven and de Meyere v. Belgium, 4 E.H.R.R. 1.

14. Piersack v. Belgium (1983) 5 E.H.R.R. 169.

15. Delcourt v. Belgium, 1 E.H.R.R. 355.

16. Langborger v. Sweden (1990) 12 E.H.R.R. 416.

17. App. Nos. 8603/79, 8722/79, 8723/79 & 8729/79 Crociani v. Italy, 22 D. & R. 147. *49

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 recently 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 Bonello Dupuis [a Nationalist Member of Parliament] names 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 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 might 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.'

*50 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, [FN1] hereinafter referred to as 'the Ordinance.'

FN1 Chap. 179 of the Revised Edition of the Laws of Malta; see para. 20 below.

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 *51 penal in nature, violated his right under section 40 of the Constitution [FN2] to be given a fair hearing by an independent and impartial court.

FN2 See para. 22 below.

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, *52 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 procedings 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.

*53 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 60 days or with a fine not exceeding 500 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 paragraphs (k) and (1) of subsection (1) of this section if the publication referred to in paragraphs (k) and (l) of subsection (1) of this section 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). *54

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 200 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 *55 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 [FN3] 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(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(2).

FN3 App. No. 13057/87.

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), it expressed the unanimous opinion that there had been a breach of Article 6(1) and that no separate issue arose from Article 6(2).

The Commission's opinion and the concurring opinion are set out below.

Opinion

A. Points at issue

29. The principal issues to be determined are:

-- whether there has been a violation of Article 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(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(1) of the Convention

30. The relevant part of Article 6(1) of the Convention reads as follows: *56

'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(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(1) of the Convention. The Government contends that the charge against the applicant of breach of privilege was disciplinary. It also relies 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(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 of the Convention. [FN4]

FN4 See, e.g., Engel v. Netherlands, 1 E.H.R.R. 647, para. 80, Deweer v. Belgium, 2 E.H.R.R. 439, para. 41, Adolf v. Austria 4 E.H.R.R. 313, para. 30.

33. The Court has developed specific criteria in order to distinguish ' criminal' from other possible types of offences [FN5]:

(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.

FN5 Engel judgment, para. 82.

(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.

*57 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 privileges and powers was a reference to this offence and that it accordingly raised the same questions of fact and law. It is also to be noted that the Ordinance makes reference to the Criminal Code as a means of interpretation in the context of accomplices. Breach of privilege consists of a number of various offences--from an insult or disrespect to the Speaker during the sitting of the House to assaults on members or officers of the House. The Commission finds that the former type relates to the inner regulation and smooth functioning of the institution and can be regarded purely as a matter of internal discipline, whereas the latter type overlaps conduct condemned as criminal. The Commission takes the view that defamatory libel is criminal rather than disciplinary in nature in this context, in particular since it concerns publication outside the House by someone unconnected with the House.

36. As regards the severity of the penalty, the applicant ran the risk of a fine of up to 500 Lm and imprisonment of a maximum of 60 days. The criminal offence itself in the Press Act provides for a penalty of three months and 200 Lm which is not appreciably different in degree of severity of punishment. The Commission recalls that the penalty of deprivation of liberty generally belongs to the 'criminal' sphere. [FN6] The fact that the penalty actually imposed was not very severe does not however deprive the charge of its criminal character.

FN6 Ibid.

37. The Commission therefore finds that the breach of privilege proceedings against the applicant for defamatory libel involved the determination of a ' criminal charge.'

b. Compliance with Article 6(1)

38. The Commission must next consider whether the applicant received a fair and public hearing before an independent and impartial tribunal within the meaning of Article 6(1) of the Convention.

39. The Government contends that the House of Representatives, as in the case of the United Kingdom, has the power to regulate its own internal proceedings and to punish acts in contempt of Parliament or in breach of its privileges and that it accordingly has a judicial function which it discharges independently and impartially.

40. In determining whether a body can be considered to fulfil the requirements of Article 6(1) in this regard, the Court has stated that the fact that a body exercises judicial functions does not suffice. [FN7] The Court's case law establishes that the term 'independent' means that the organ in question is independent of both the executive and of the *58 parties. [FN8] The Commission has also held that the same independence must be established in respect of the legislature or Parliament. [FN9] In determining whether a body satisfies the condition of independence, the Court has had regard to the manner of appointment of its members and the duration of their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence. [FN10]

FN7 Le Compte, Van Leuven and de Meyere v. Belgium, 4 E.H.R.R. 1, para. 55.

FN8 Ringeisen v. Austria, 1 E.H.R.R. 455, para. 95.

FN9 App. Nos. 8603/79, 8723/79, 8723/79 and 8729/79 Crociani and Others v. Italy, 22 D. & R. 147 .

FN10 See, e.g., Piersack v. Belgium (1983) 5 E.H.R.R. 169, para. 27, Delcourt v. Belgium, 1 E.H.R.R. 355, para. 31.

41. 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 in this application, which concerns solely the rôle it played in the determination of a charge found by the Commission to be criminal within the meaning of Article 6(1) of the Convention. In that latter context and in light of the above considerations, the Commission finds that the House of Representatives, which is a legislative body and from which the Government or executive of the day is constituted cannot, by its very nature, be considered as a court. Further, the House cannot be considered as independent from the parties. The Commission recalls that the members who felt impugned by the article were responsible for bringing the charge against the applicant and that they took part in the proceedings and in the votes determining the applicant's guilt and sentence. The Government submits that breach of privilege is not an offence against a particular member but something affecting the discipline and standing of the House as a whole. Even on the assumption that this interpretation is correct, the House, in acting on the affront to its own dignity, would thereby appear to act as a victim, prosecutor and judge.

42. The concept of 'impartiality' is difficult to dissociate from that of independence. Without considering the personal prejudice or subjective aspect, a body which fails to offer the requisite guarantees of independence will often fail at the same time to satisfy the objective test of impartiality, namely, that there are guarantees to exclude any legitimate doubt as to the impartiality of the body. [FN11] This is so in the present case.

FN11 Piersack judgment, para. 30.

43. The Commission also recalls that during the proceedings, on 10 February 1986, the House passed a resolution to the effect that the House deemed that the article published in the applicant's periodical was a breach of its privileges. On 4 March 1986, the House passed a further resolution repeating the prior resolution and summoning the applicant before it to state why he should not be declared guilty of a breach of privilege.

44. The Government submitted that these resolutions were not intended to prejudge the case but merely established a prima facie case *59 which merited the commencement of proceedings. The intended meaning of the resolutions however cannot be conclusive where the words on their face convey another. Having regard to the contents of the motions, the Commission finds that on their face they give the appearance of prejudging the issue as to the applicant's guilt and reversing the burden of proof. These motions consequently serve to cast further doubt as to the independence and impartiality of the House in its dealing with the charge of breach of privilege against the applicant.

45. In all the circumstances of the present case therefore, the Commission finds that the House of Representatives did not fulfil the requirements of Article 6(1) of the Convention either as to independence or as to impartiality.

46. The applicant has also complained of not receiving a fair hearing. The question of fairness however is inextricable in this case from the nature of the body determining the charge. The Commission's finding above therefore renders it unnecessary to examine this aspect of the complaint further. [FN12]

FN12 Langborger v. Sweden (1990) 12 E.H.R.R. 416.

Conclusion

47. The Commission concludes unanimously that there has been a violation of Article 6(1) of the Convention.

C. Article 6(2) of the Convention

48. Article 6(2) of the Convention provides:

'Everyone charged with a criminal offence shall be presumed inocent until proved guilty according to law.'

49. The applicant has submitted before the Commission that the motions of 10 February 1986 and 4 March 1986 violated the presumption of innocence guaranteed by the above provision.

50. The Commission recalls however that as with the guarantees under Article 6(3), the principle of the presumption of innocence as specifically guaranteed under Article 67(2) is one of the elements that exemplify the concept of a fair trial laid down in Article 6(1) of the Convention. In light of the Commission's wider examination of the issues arising under Article 6(1) and its finding above on the independence and impartiality of the House of Representatives, the Commission finds it unnecessary to examine this issue further.

Conclusion

51. The Commission concludes unanimously that no separate issue arises under Article 6(2) of the Convention.

*60 D. Recapitulation

52. The Commission concludes unanimously that there has been a violation of Article 6(1) of the Convention (paragraph 47).

53. The Commission concludes unanimously that no separate issue arises under Article 6(2) of the Convention (paragraph 51).

Concurring opinion of Mr. S. Trechsel

I fully agree with the conclusions arrived at by my colleagues, but consider that the reasoning ought to stop after the finding, in paragraph 41, of what is in my view obvious, namely, that the House of Representatives is not a ' tribunal' within the meaning of Article 6.

JUDGMENT

I. Preliminary objection

25. By way of preliminary objection, the Government pleaded, as it 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 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 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, [FN13] that being the final court from which the applicant could have sought a remedy. It 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 [FN14]--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.

FN13 See para. 16 above.

FN14 See para. 17 above.

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 of the Convention.

28. The Government's preliminary objection must therefore be rejected.

*61 II. Alleged violation of Article 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 of the Convention, which in paragraph 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(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(1) was therefore applicable.

31. The Court has already had to determine similar issue in other cases. [FN15] While it is recognised 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 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.

FN15 See Weber v. Switzerland(1990) 12 E.H.R.R. 508, para. 30 and the other judgments referred to therein.

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, the Court will apply the three criteria which were first laid down in the Engel judgment of 8 June 1976 [FN16] and have been consistently applied in the Court's subsequent case law. [FN17]

FN16 1 E.H.R.R. 647.

FN17 See, apart from judgments referred to above, Öztürk v. Germany (1984) 6 E.H.R.R. 409 and Campbell and Fell v. United Kingdom (1985) 7 E.H.R.R. 165.

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. [FN18] 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 *62 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, [FN19] 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.'

FN18 See para. 20 above.

FN19 See para. 15 above.

33. However, as already noted above, the indication afforded by national law is not decisive for the purpose of Article 6. A factor of greater importance is 'the very nature of the offence' in question. [FN20]

FN20 See inter alia, Campbell and Fell v. United Kingdom (1985) 7 E.H.R.R. 165, para. 71 and Weber v. Switzerland (1990) 12 E.H.R.R. 503, 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. [FN21]

FN21 See para. 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. [FN22]

FN22 See, mutatis mutandis, Weber v. Switzerland (1990) 12 E.H.R.R. 503, para. 33 in fine.

34. The third criterion is the degree of severity of the penalty that the *63 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 60 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. [FN23]

FN23 Ibid., para. 34.

35. In conclusion, Article 6 applied in the present case.

B. Compliance with Article 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. [FN24] 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 in 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.'

FN24 See para. 14 above.

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. [FN25] The indepedence 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.

FN25 Ringeisen v. Austria, 1 E.H.R.R. 455, para. 95.

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 *64 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(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(1) itself.' [FN26]

FN26 Belilos v. Switzerland (1988) 10 E.H.R.R. 466, 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(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. [FN27]

FN27 See, amongst other authorities, Hauschildt v. Denmark (1990) 12 E.H.R.R. 266, 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 [FN28] 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.

FN28 See para. 11 above.

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. [FN29]

FN29 See, the Hauschildt judgment, para. 52.

42. Accordingly, there has been a breach of Article 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(2)

43. The applicant submitted that the resolution of 10 February 1986 and the motion of 4 March 1986 [FN30] placed the burden of proving innocence on the accused and accordingly violated Article 6(2) of the Convention.

FN30 See paras. 11 and 12 above.

*65 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(1) the Court does not consider it necessary to examine this issue.

IV. Application of Article 50

44. Article 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 injury 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. [FN31]

FN31 See, mutatis mutandis, Zanghi v. Italy, Series A No. 194 C.

B. Damages

46. By way of compensation for pecuniary injury the applicant sought an indemnity for the 250 Lm (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 10,000 Lm by way of compensation for non-pecuniary injury, 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.

*66 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. [FN32]

FN32 See, amongst other authorities, Bricmont v. Belgium (1990) 12 E.H.R.R. 217, para. 101.

50. As regards the breach of privilege proceedings before the House of Representatives, Mr. Demicoli sought 600 Lm by way of 'attendance' and ' extrajudicial' fees.

As regards the constitutional action challenging the validity of the breach of privilege proceedings, he sought 901.90 Lm (the amount of the official taxed bill of costs) as well as a further 300 Lm by way of 'extrajudicial' fees.

51. For the proceedings before the Commission, the applicant sought 1,828 Lm for travel and subsistence expenses for the appearance of himself, his lawyer and his legal procurator at its hearing, in addition to 3,000 Lm by way of ' judicial and extrajudicial' fees.

As to the proceedings before the Court, he sought 995 Lm by way of travel and subsistence expenses for himself and his lawyer and also 1,500 Lm 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, 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 5,000 Lm for both the national and the Strasbourg proceedings.

For these reasons, THE COURT unanimously

1. Rejects the Government's preliminary objection; *67

2. Holds that Article 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(2);

4. Holds that the respondent State is to pay to the applicant the sum of 5,000 Lm in respect of all costs and expenses;

5. Dismisses the remainder of the claim for just satisfaction.

Concurring Opinion of Judge Pinheiro Farinha. Approved by Judges Thór Vilhjálmsson and Spielman (Provisional 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 gave the applicant access to the Commission.'

The question remains open and the Court does not propose to decide it for the time being. [FN33] It will be decided at the proper time.

FN33 See, mutatis mutandis, Bozano v. France (1987) 9 E.H.R.R. 297, para. 50 in fine.

The text as worded could give the impression that the question has now been decided.