BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF JOHN ANTHONY MIZZI v. MALTA
(Application
no. 17320/10)
JUDGMENT
STRASBOURG
22
November 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of John Anthony Mizzi
v. Malta,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
David
Thór Björgvinsson
Päivi
Hirvelä,
George Nicolaou,
Ledi Bianku,
judges,
David Scicluna, ad hoc judge,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 3 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17320/10)
against the Republic of Malta lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Maltese national, Mr John Anthony Mizzi (“the applicant”),
on 4 March 2010.
2. The
applicant was represented by Mr T. Azzopardi, a lawyer practising in
Valletta. The Maltese Government (“the
Government”) were represented by their Agent, Dr Peter Grech,
Attorney General.
3. The
applicant alleged that the domestic court judgments finding
him guilty of defamation and ordering him to pay civil damages were
in breach of his right to freedom of expression under Article 10 of
the Convention.
- On
26 August 2010 the President of
the Fourth Section decided to give notice of the application
to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
5. Mr V. De Gaetano, the judge
elected in respect of Malta, was unable to sit in the case (Rule 28
of the Rules of Court). The President of the Chamber accordingly
appointed Mr David Scicluna to sit as an ad hoc judge (Rule 29
§ 1(b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1925 and lives in Malta.
A. Background of the case
- The
applicant is a journalist. On 20 February 1994 The Sunday Times of
Malta, a national English language newspaper (“The
Times”) published the applicant’s letter to the
editor entitled “A Yacht Marina for Xemxija?”
The
letter, in so far as relevant, read as follows:
“Dr Francis Zammit Dimech, Minister of Transport,
has been quoted as saying that a yacht marina is being projected for
Xemxija, the inner part of St. Paul’s bay.
The residents of the seaside village, permanent and
occasional, and the fishermen, have not been consulted over what will
be an impractical and highly unpopular attempt to bring about further
havoc in the area.
After the war, during the administration of Dr Boffa,
permission was given for buildings to be erected on the northern part
of the bay because Dr Boffa wanted to build there, and now this has
erupted into a conglomeration of high and low-rise constructions of
grotesque proportions.
Then came the oil tanks and it was quite a relief later
to see those go. There was some idea to develop Mistra and one hopes
this has evaporated. Now comes this new idea of a marina at Xemxija.
When the breakwater at Tal-Veccja was extended, the
currents in the bay were diverted so that now silt has settled along
the stretch by the West End Hotel. Similarly, any breakwater in the
bay will further alter the currents. The residents will not welcome
the intrusion of yachtsmen and are wondering whether the back up
facilities will go.
A proper study of the storms in the bay in winter will
certainly show though how impractical it is to build a large marina
at Xemxija. Besides, one can imagine yachtsman with pegs to their
noses from the stench from the drainage outflow which is such a
feature of St. Paul’s Bay where the authorities have
continually botched the system.
Why don’t they try Salina, which is a more
sheltered and more practical marina – if in fact there is need
for another marina?”
B. Defamation proceedings
- On
an unspecified date, Mr J. Boffa, the son and heir of the deceased
Sir Paul Boffa referred to in the letter (who was Prime Minister of
Malta and Head of Government in the post-war era of 1947-50
and who died in 1962), sued the applicant for civil damages,
claiming that the letter was defamatory. He argued that the words “Dr
Boffa wanted to build there” attributed false and
despicable intentions to his father.
- The
applicant pleaded that the action should be dismissed on the ground
that a deceased person cannot sue for libel. By a preliminary
judgment of 28 June 1996 the Civil Court dismissed this preliminary
plea. This preliminary decision was upheld by the Court of Appeal on
7 October 1997.
- The
applicant contended, on the merits, that his letter had not stated
that Sir Paul Boffa had wanted to build for himself in the
specified area. His statement had referred to Sir Paul Boffa’s
decision, acting in his role as Prime Minister of the country, to
build in the area. Moreover, the letter was not injurious and there
had been no mischievous intent, “animus injuriandi”,
on the part of the applicant, who was also a family friend of the
Boffas.
- By
a judgment of 21 October 2002 the Civil Court found the letter to be
defamatory vis-à-vis Sir Paul Boffa and ordered the
applicant to pay Joseph Boffa 700 euros (EUR). It reiterated that a
person may have a legal interest even if he or she was not the person
to have been defamed, and it threw out the applicant’s
explanation of the impugned phrase for the following reasons: from
the evidence submitted it transpired that the area close to the
Church in Xemxija was indeed a development zone; however, no date
could be established as to when the land had been earmarked for such
purpose. It further appeared that a company had submitted an
application to acquire (tehid) land in Mistra to erect a bulk
storage installation for petroleum products. It followed logically,
according to the reasoning of the Civil Court, that the applicant had
meant that the issuing of building permits during Sir Paul Boffa’s
administration had been dependent on his will to build there (on the
northern side of the bay of Xemxija), personally. This was the
meaning which would have been understood by any ordinary
right-thinking person. However, the applicant had not been able to
prove that any such permits had been issued, or that Sir Paul Boffa
had wanted to build there. Thus, since the allegations were untrue,
and the applicant had not proved any basis for such an allegation,
mischievous intent was presumed.
- The
judgment was upheld by the Court of Appeal on 21 June 2005. It
reiterated that the statement “during the administration of
Dr Boffa, permission was given for buildings to be erected on the
northern part of the bay because Dr Boffa wanted to build there”
was defamatory as it implied that Dr Boffa had taken advantage of his
position as head of the civil administration to build in an area for
which planning permission had not previously been granted. This was
what a reasonable person would have understood. However, Mr Boffa had
proved that his father never owned property in the said area. The
Court of Appeal further noted that the applicant had failed to
publish any correction or apology after becoming aware that Mr Boffa
had suffered from the defamation caused by the publication.
C. Constitutional redress proceedings
- The
applicant instituted constitutional redress proceedings claiming that
there had been a violation of his rights under Articles 6 and 10 of
the Convention.
- On
18 November 2008 the Civil Court, in its constitutional jurisdiction,
dismissed his claims on the merits. It considered the evidence
produced by the applicant, namely a letter from the editor of The
Times which explained the reasons why he disagreed with the court
judgment of 21 June 2005, the witness testimony declaring that the
relevant area was a building site, his research documents and his
statement that he had never referred to Dr Boffa’s wish to
build for himself personally. It considered, firstly, that according
to established domestic and continental jurisprudence, a descendant
of a defamed person did have a right of action. It reiterated the
lower courts’ findings in relation to the animus injuriandi
and confirmed that their decision based on the finding that the
applicant’s statement had been untrue could not be considered
to be repressive. It held that an ordinary reader would have
definitely understood the applicant’s statement to refer to Dr
Boffa’s wish to build there personally and thus did cause harm
to his reputation. Moreover, the concept of “necessary in a
democratic society” did not entail the publishing of
falsehoods. As to Article 6, it held that according to the European
Court’s case-law, the right to a fair trial did not extend to
the failure to cross-examine persons who had not given testimony and
whose interests were being represented by the heirs who could,
themselves, be cross-examined. Thus, there could be no violation of
Articles 6 or 10 of the Convention.
- On
appeal, by a judgment of 9 October 2009, the Constitutional Court
upheld the first-instance judgment and the ordinary court’s
reasoning under both Articles 6 and 10. In particular, it rejected
the applicant’s contention that he was referring to Dr Boffa in
his role as Prime Minister at the relevant time and not in his
personal capacity, and that the applicant had never written that Dr
Boffa had wanted to build there for his own personal advantage. It
further held that the Court of Appeal had correctly applied the
relevant principles, in particular the concept of “ordinary
reader” and the importance of reputation.
II. RELEVANT DOMESTIC LAW
- The
pertinent sections of the Press Act, Chapter 248 of the Laws of
Malta, in so far as relevant, read as follows:
Section 3
“The offences mentioned in this Part of this 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
“Save as otherwise provided in this Act, whosoever
shall, by any means mentioned in section 3, libel any person, shall
be liable on conviction to a fine (multa).”
Section 23
“Criminal proceedings for any offence under Part
II and civil proceedings under Part III of this Act may be instituted
against each of the following persons:
(a) the author, if he shall have composed the
work for the purpose of its being published, or if he shall have
consented thereto;
(b) the editor; or, if the said persons cannot be
identified,
(c) the publisher.”
Section 27
“Criminal proceedings are independent of civil
proceedings. Both proceedings may be instituted at the same time or
separately.”
Section 28
“(1) In the case of defamation, ... , the object
of which is to take away or injure the reputation of any person, the
competent civil court may, in addition to the damages which may be
due under any law for the time being in force in respect of any
actual loss, or injury, grant to the person libelled a sum not
exceeding eleven thousand six hundred and forty-six euros and
eighty-seven cents (EUR 11,646.87).”
- Articles
255 and 256 of the Criminal Code, Chapter 9 of the Laws of Malta,
read as follows:
Article 255
“No proceedings shall be instituted for defamation
except on the complaint of the party aggrieved:
Provided that where the party aggrieved dies before
having made the complaint, or where the offence is committed against
the memory of a deceased person, it shall be lawful for the husband
or wife, the ascendants, descendants, brothers and sisters, and for
the immediate heirs, to make the complaint.”
Article 256
“(1) In cases of defamation committed by means of
printed matter, the provisions contained in the Press Act shall
apply.
(2) Where, according to the said Act, proceedings may
only be instituted on the complaint of the party aggrieved, the
provisions contained in the proviso to the last preceding article
shall also apply.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that the domestic court
judgments finding him guilty of defamation and ordering him to pay
civil damages were in breach of his right to freedom of expression as
provided in Article 10 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of
expression. This right shall include freedom to hold opinions and to
receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent states from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant argued that Maltese law, namely section 28 of the Press Act
concerning civil actions, did not allow relatives of a deceased
person to institute proceedings, unlike in criminal proceedings. This
notwithstanding, the domestic courts had allowed this action.
- The
applicant submitted that the domestic courts had
utterly twisted his words written in plain English, maybe because
they had translated them literally into Maltese, although the phrase
would have had exactly the same meaning in both languages. However,
his statement, in English, had been clear and it had not included the
word “for himself”. In consequence, this meaning could
not be presumed. Thus, the implication that Dr Boffa had wanted to
build there “personally” was a point that the domestic
courts had added of their own accord.
- The
applicant submitted that the letter had not been directed at Dr Boffa
at all but had meant to show the impracticality of a yacht marina in
the area nowadays. The only reference to Dr Boffa had been to him as
Prime Minister, more than fifty years ago, at a time when
construction in the area had boomed, as also proved before the
domestic courts. Indeed, it made no sense to extrapolate one
innocuous sentence which had nothing to do with the aim of the
article as a whole, impute to it a meaning which was not at all
evident, and find that that was libellous. This was even more so
given that the Prime Minister was in any case a public figure.
- The
applicant alleged that he had offered to make a correction in the
newspaper explaining that no such meaning had been intended; however,
Joseph Boffa had only been prepared to accept an apology for the
defamation suffered, an allegation the applicant had refused to
accept.
- Lastly,
the applicant considered that the sum he had had to pay in damages
had not been insignificant and in any case the interference had
definitely not been necessary in a democratic society. Indeed the
reasons adduced by the domestic courts had been feeble and could not
justify such interference.
- The
Government acknowledged that the order to pay damages had constituted
an interference with the applicant’s Article 10 rights.
- However,
they contended that the interference was provided for by law. Section
28 of the Press Act and Articles 255 and 256 of the Criminal Code
made it foreseeable that a person who committed libel against a
deceased person was liable to a civil action under the Press Act.
- Moreover,
the interference had pursued a legitimate aim, namely the protection
of the reputation and rights of others, and had been necessary in a
democratic society. Making reference to the Court’s case-law,
the Government recognised the importance of the role of journalists
in imparting information and ideas, but stressed that they were
subject to duties and responsibilities in respect of the manner in
which they performed their functions and as to what they chose to
publish. In the present case, the applicant had chosen to publish
words, which, according to the Government, an ordinary intelligent
reader would have understood to mean that Sir Paul Boffa, when Prime
Minister, had arranged for building permits to be issued in Xemxija
to further his own personal interest in building in that area and
thus casting a shadow of corruption on Dr Boffa’s immediate
family, who were ordinary private citizens. The applicant chose to
publish this information despite the lack of evidence substantiating
its veracity. Moreover, the article had been published in a leading,
respectable newspaper where readers would have taken for granted that
what had been published was the truth. Furthermore, no correction or
rectification had been published by the applicant.
- The
Government noted that while the applicant insisted that a different
meaning was attributable to the phrase at issue, four separate
domestic courts had rejected his arguments. Indeed, the meaning given
to it by the applicant was untenable since until the 1960s the area
was only viewed as a location for summer residences and it was only
much later that it started hosting ordinary residences. While at the
relevant post-war time it had been earmarked as a building site, the
only application for development had in fact been that by an oil
company for construction of tanks and storage purposes. The
Government considered that the impugned phrase was a straightforward
statement of fact that could only have the meaning given to it by the
domestic courts, particularly bearing in mind that the predominantly
Maltese-speaking public would assimilate phrases in English and
mentally translate them into their mother tongue, Maltese. Lastly,
they considered that since the case concerned an interpretation of
what the ordinary reader in Malta would have understood, it was not
for the Court to re-evaluate the matter, the domestic judge being in
a better position to perform such an assessment.
- Bearing
in mind the low amount of damages awarded to the injured party and
the context, namely private civil proceedings, the Government
considered that the interference had been justified.
2. The Court’s assessment
(a) General principles
- The Court reiterates that an interference breaches
Article 10 unless it was “prescribed by law”, pursued one
or more of the legitimate aims referred to in Article 10 § 2 and
was “necessary in a democratic society” to attain such
aim or aims (see Times Newspapers Ltd v. United Kingdom
(nos. 1 and 2),
no. 3002/03 and 23676/03, § 37, 10 March 2009).
The test of “necessary in a democratic society” requires
the Court to determine whether the interference complained of
corresponded to a “pressing social need”. The Contracting
States have a certain margin of appreciation in assessing whether
such a need exists, but it goes hand in hand with European
supervision, embracing both the legislation and the decisions
applying it, even those given by an independent court. The Court is
therefore empowered to give the final ruling on whether a
“restriction” is reconcilable with freedom of expression
as protected by Article 10 (see, among many other authorities, Perna
v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V, and
Association Ekin v. France, no. 39288/98, § 56, ECHR
2001-VIII).
- The Court’s task in exercising its supervisory
function is not to take the place of the national authorities, but
rather to review under Article 10, in the light of the case as a
whole, the decisions they have taken pursuant to their margin of
appreciation. The Court must look at the interference complained of
in the light of the case as a whole, including the content of the
comment held against the applicant and the context in which it was
made (see News Verlags GmbH & Co. KG v. Austria,
no. 31457/96, § 52, ECHR 2000-I, and Pedersen and
Baadsgaard v. Denmark [GC], no. 49017/99, § 69, ECHR
2004 XI). In particular, the Court must determine whether the
reasons adduced by the national authorities to justify the
interference were “relevant and sufficient” and whether
the measure taken was “proportionate to the legitimate aims
pursued” (see Chauvy and Others v. France, no. 64915/01,
§ 70, ECHR 2004-VI). In doing so, the Court has to satisfy
itself that the national authorities, basing themselves on an
acceptable assessment of the relevant facts, applied standards which
were in conformity with the principles embodied in Article 10 (see
Aquilina and Others v. Malta, no. 28040/08,
§ 41, 14 June 2011).
(b) Application in the instant case
- The
Court notes that it is common ground between the parties that the
judgments pronounced in the defamation action constituted an
interference with the applicant’s right to freedom of
expression as protected by Article 10 § 1.
- The
Court considers that the interference was “in accordance with
the law”, namely section 28 of the Press Act, read in
conjunction with Articles 255 and 256 of the Criminal Code, and that
it pursued the legitimate aim of protecting the reputation or rights
of others, within the meaning of Article 10 § 2. It remains to
be ascertained whether it was “necessary in a democratic
society”.
- The
Court notes that the impugned statement read “Dr Boffa wanted
to build there” and that the domestic courts interpreted the
statement as meaning that “the Prime Minister at the time
wanted to build there for himself”. The Court considers
that having attributed one of two meanings in which it could have
been understood, it stood to reason that the veracity of the
statement, as interpreted by the domestic courts made it very
difficult, if not impossible, for the applicant to provide direct
corroboration of it (see, mutatis mutandis, Bozhkov v.
Bulgaria, no. 3316/04, § 47, 19 April
2011). Indeed, in the Court’s view, while it is true
that the applicant could have phrased the impugned statement in a
more careful manner, the meaning given to it by the applicant, as can
be seen from the English text as published, appears to be a
reasonable meaning that could be attributed to it by an ordinary,
average reader. Furthermore, the letter had been published in English
and was therefore directed at an English-speaking public. The Court
considers that the evidence put forward by the applicant in the
domestic proceedings, together with the fact that the area was
eventually built on in the subsequent years constituted a sufficient
factual basis for the statement as intended by the applicant, which
in the Court’s view did not amount to a serious allegation. The
Court’s case-law is clear on the point that the more serious
the allegation is, the more solid the factual basis should be (see,
for example, Rumyana Ivanova v. Bulgaria, no. 36207/03,
§ 64, 14 February 2008).
- Moreover,
even accepting the meaning attributed to the
words by the domestic courts, the Court notes that those
courts found that mischievous intent was to be presumed, while
disregarding factors which could equally be relevant for determining
whether or not the applicant had acted in good faith (see, mutatis
mutandis, Bozhkov, cited above, § 50).
- Quite
apart from the interpretation given to it by the domestic courts, the
Court considers that the statement must be looked at in the light of
the overall thrust of the letter. The Court has previously held that
the criterion of responsible journalism should recognise the fact
that it is the article as a whole that the journalist presents to the
public (see Bozhkov, cited above, § 50). The Court
notes that the impugned statement, whatever its meaning may be, was a
mere historic sideline to an article which dealt with a totally
different subject matter. It held no prominence in the writing; it
was of little significance, was written in the calmest of tones and
could hardly be considered as provocative or exaggerated in that
specific context.
- Furthermore,
the domestic courts did not give any weight to the fact that the
person who they found to have been defamed was a former prime
minister, and thus a politician and public figure who was subject to
wider limits of acceptable criticism (see Lombardo and Others v.
Malta, no. 7333/06, § 54, 24 April 2007) and that the
article covered a subject of at least some public interest.
- The
Court further notes that the said prime minister was deceased at the
time the letter was written. Indeed, the person who sued the
applicant and to whom damages were awarded was not the defamed
person, but his heir. In this respect, although the possibility of
bringing such an action existed in the Maltese legal system, like in
other countries, and though this has never raised an issue, as such,
before the Court (see, for example, Editions Plon v. France,
no. 58148/00, § 14, ECHR 2004 IV, and Hachette
Filipacchi Associés v. France, no. 71111/01, § 10,
ECHR 2007 VII), it is of the view that this element should have
been considered by the domestic courts when assessing the
proportionality of the interference. Indeed,
when considering the harm that may be caused to a person’s
reputation, the immediate consequences that come to mind are, inter
alia, loss of opportunities, private
or professional, or loss of standing in the eyes of the community.
The Court notes that, in the present case, the defamed
individual passed away more than three decades before the impugned
statement was published and any damage that may have been caused to
the deceased’s reputation cannot be considered serious in the
circumstances (see Editions Plon, cited above, §
53 and, conversely, § 47). The Court observes that the domestic
courts gave no weight to this factor.
- In
conclusion, the Court considers that the domestic courts’
decisions, narrow in scope, reiterating what, in their view, was
implied by the impugned statement, and upholding the right of
reputation without explaining why this outweighed the applicant’s
freedom of expression and without taking into consideration other
relevant factors, cannot be considered to fulfil the obligation of
the courts to adduce “relevant and sufficient” reasons
which could justify the interference at issue.
- The
fact that the proceedings were civil rather than criminal in nature
and that the final award was relatively modest does not detract from
the fact that the standards applied by the courts were not compatible
with the principles embodied in Article 10.
- There
has accordingly been a violation of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained of a violation of his right
to a fair trial, in that he could not cross-examine his accuser who
was in fact deceased. He relied on Article 6 §
3 (d) of the Convention, which provides as follows:
“3. Everyone charged with a criminal offence
has the following minimum rights: ...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
...”
- The Court notes that the proceedings complained of did
not concern the determination of any criminal charge against the
applicant (see, mutatis mutandis, Walsh v. the United
Kingdom (dec.), no. 43384/05, 21 November 2006). It
follows that Article 6 § 3 (d) does not apply, and the complaint
is incompatible ratione materiae with the
provisions of the Convention and should be rejected pursuant to
Article 35 §§ 3 and 4 of the Convention.
- Even
viewed against the general fairness requirements of Article 6 § 1,
the Court finds that in the circumstances of the present case the
applicant was not denied a fair trial. It follows that the complaint
is manifestly ill-founded within the meaning of Article 35 §§
3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 6,000 euros (EUR) in respect
of non-pecuniary damage and EUR 700 in respect of pecuniary damage,
representing the amount he was made to pay in civil damages.
- The
Government objected to these claims particularly considering the
trivial amount of civil damages the applicant was made to pay.
- The
Court reiterates that under its case-law a sum paid as reparation for
damage is only recoverable if a causal link between the violation of
the Convention and the damage sustained is established. Thus, in the
present case, the award of damages which the applicant had to pay to
Joseph Boffa pursuant to the domestic courts decisions could be taken
into account (see, mutatis mutandis, Thoma v. Luxembourg,
no. 38432/97, § 71, ECHR 2001-III). Thus, the Court awards the
applicant EUR 700, in respect of pecuniary
damage and EUR 4,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 5,066.38, namely EUR
4,293.55 as per the submitted bill of costs and EUR 772.83 Value
Added Tax (VAT), for the costs and expenses incurred before the
domestic courts and EUR 2,360 including VAT for professional fees
incurred before the Court.
- The
Government considered that the sum of EUR 1,500 for the proceedings
before this Court would suffice. As to the sums claimed for the
domestic proceedings, they submitted that VAT should not be included
as it was payable only on professional fees and not registry
expenses. Moreover, they contended that the applicant had to prove
that he had paid the amount of EUR 1,197.72 representing the
Government’s expenses in the domestic proceedings.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. The Court firstly notes that even
assuming the Government’s expenses have not yet been paid,
these expenses remain due. Thus, in the present case,
regard being had to the fact that certain of the applicant’s
complaints have been declared inadmissible, to the documents in its
possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 5,300 covering costs
under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares unanimously the
complaint concerning Article 10 of the Convention admissible and the
remainder of the application inadmissible;
- Holds by six votes to one that
there has been a violation of Article 10 of the Convention;
- Holds by six votes to one
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, the following amounts:
(i) EUR
700 (seven hundred euros) in respect of pecuniary damage;
(ii) EUR
4,000 (four thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(iii) EUR
5,300 (five thousand three hundred euros), plus any tax that may be
chargeable, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the
remainder of the applicant’s claim for
just satisfaction.
Done in English, and notified in writing on 22 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas
Bratza Deputy Registrar President
In accordance with Article 45 § 2 of the
Convention and Rule 74 § 2 of the Rules of Court, the following
separate opinions are annexed to this judgment:
(a) concurring opinion of Judge Bratza;
(b) dissenting opinion of Judge Scicluna.
N.B.
F.A.
CONCURRING OPINION OF JUDGE BRATZA
- I
share the view of the majority of the Chamber that the applicant’s
rights under Article 10 of the Convention were violated in the
present case and would add only a few words on what I regard as one
of the important grounds for the Chamber’s finding of
violation, namely the fact that Sir Paul Boffa, who was held to have
been defamed in the applicant’s letter, had died before the
letter was written.
- As
someone originating from a jurisdiction in which a cause of action
for defamation does not survive the death of the alleged wrongdoer or
that of the defamed person himself, I admit to having difficulty with
the idea that an action in defamation can lie at the instance of
descendants of an individual years, and even decades, after the death
of the person concerned. I accept, however, that in other
jurisdictions, including Malta, such a cause of action exists and has
not, as such, been questioned in the Court’s case-law.
- The
two cases referred to in the judgment were not in fact cases of
defamation. Both were cases in which the impugned publication (in
Editions Plon, the disclosure of confidential medical details
of a head of state who had recently died and, in Hachette
Filipacchi Associés, the publication of a photograph of
the mutilated body of a political figure, shortly after his murder
and funeral) had a direct and immediate impact on the private and
family lives of the immediate family of the deceased.
- In
the case of defamation, the situation appears to me to be different:
the defamatory statement, while doubtless affecting the reputation of
the deceased ancestor, has in my view no direct impact on the private
or family life of the descendants. The exposure of an individual in
such a case to an action in damages for defaming the deceased
ancestor of a family is likely to have a seriously chilling effect on
the right of freedom of expression, particularly in a case where many
years have passed since the death and the burden of proving the truth
of the allegation lies on the defendant in any such action. In my
view, even if such an action is in principle compatible with the
requirements of Article 10, when striking the balance between the
competing interests, the weight to be attached to the reputation of
the deceased individual must diminish with the passing of the years
and that attaching to freedom of expression must correspondingly
increase.
- As
noted in the judgment, Sir Paul Boffa, who was found to have been
defamed in the applicant’s letter, died more than three decades
before the impugned statement was published. While I readily accept
that he was a greatly respected figure in Malta, I consider that any
damage that may have been caused to his reputation by the letter was
in the circumstances outweighed by the freedom of expression of the
applicant guaranteed by Article 10 of the Convention.
DISSENTING OPINION OF JUDGE SCICLUNA
- Having
carefully examined the letter in question which purportedly deals
with the topic of the bulding of a yacht marina at Xemxija, the
paragraph in which the writer refers to Dr Boffa sticks out
because of the allegation made in it.
- In
my opinion the interpretation given by the national courts to this
paragraph was the correct one. Saying that permission was given
during the Boffa administration for buildings to be built “because
Dr Boffa wanted to build there” means that Dr Boffa had an
interest in allowing the construction of buildings in the area. It
cannot be understood as meaning that it was his administration that
wanted to develop the area. Indeed the writer says that permission to
build was given “during the administration of Dr Boffa”
but then that it was given “because Dr Boffa wanted to build
there”.
- I
disagree that any other interpretation could be given to the
statement made by the applicant in his letter. If a different meaning
was meant to be given by the applicant (viz. that Dr Boffa was
in favour of the area being built up – “ried
li jinbena” and not “ried
jibni”) then that is what he
should have said.
- I
agree with the principle enunciated in paragraph 38 of the judgment
but the fact that the reference was to a former prime minister is in
this case besides the point given that the applicant himself says
that the national courts misunderstood what he had written.
- The
fact that Dr Boffa passed away more than three decades ago does not
mean that any damage cannot be considered serious. Dr Boffa is still
considered a highly respectable and honest politician and his heirs
have an interest in upholding not only his honour, his reputation and
his name but also that of the family as any defamation almost
inevitably rubs off onto the family and this can lead to moral and
material damage. These reasons, which were also indicated by the
national courts, should be considered as relevant and sufficient
reasons to justify the interference with the applicant’s right
of freedom of expression.
