SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52492/99 
by Angelo XUEREB 
against Malta

The European Court of Human Rights (Second Section), sitting on 15 June 2000 as a Chamber composed of

Mr C.L. Rozakis, President
 Mr A.B. Baka, 
 Mr B. Conforti, 
 Mrs V. Strážnická, 
 Mr M. Fischbach, 
 Mrs M. Tsatsa-Nikolovska, 
 Mr E. Levits, judges
and Mr E. Fribergh, Section Registrar,

Having regard to the above application introduced on 27 May 1999 and registered on 9 November 1999,

Having deliberated, decides as follows:

 

THE FACTS

The applicant is a Maltese national, born in 1952 and living in Naxxar, Malta. He is represented before the Court by Dr P. Galea and Dr M. Sciriha, lawyers practising in Valletta, Malta.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant applied to contest the local council elections in Naxxar which were to be held on 21 January 1994. The applicant stood as an independent candidate.

Following an objection by the Nationalist Party the Magistrates' Court disqualified him from standing in the election. On 14 January 1994 the Court of Appeal set aside this decision. The applicant went on to be elected Mayor of Naxxar.

The applicant was subsequently charged before the Court of Magistrates of, inter alia, failing to send to the Electoral Commissioner within sixty days of the election results a signed statement of his election expenses as required by Schedule Three of Act XV of 1993 on Local Council Elections. Another independent candidate was charged with the same offence. None of the other 200 candidates, all of whom represented the governing or opposition party, was charged although they had failed to submit the required statement.

The applicant appealed to the First Hall of the Civil Court. He stated he was the victim of discrimination since the police had not instituted proceedings against the other 200 non-independent candidates even though they all failed to file declarations on their election expenses. On 17 January 1996 the First Hall of the Civil Court rejected the applicant's application for a constitutional remedy on the grounds that he and the only other independent candidate had committed additional electoral offences. On that account the court ruled that the applicant could not be considered to have been discriminated against with reference either to the Maltese Constitution or to Article 14 of the European Convention on Human Rights taken in conjunction with Article 3 of Protocol No. 1 thereto.

The applicant appealed to the Constitutional Court. On 17 February 1999 the Constitutional Court rejected his appeal. The Constitutional Court ruled that the applicant was not in an analogous situation to the other 200 candidates as, unlike the latter, he had committed further serious offences linked to the conduct of the local election. There was accordingly a justification for the difference in treatment. The Court stated in this connection:

“This Court cannot agree that it is irrelevant that [the applicant and the other independent candidate] were charged with other crimes. These crimes, and the applicant is not contesting his prosecution for them, are crimes relating to [the applicant's and the other independent candidates'] behaviour during the electoral campaign involving either violation of the electoral law provisions or serious offences consequential on such violation. The Commissioner of Police was thus faced in [the applicant's and the other independent candidate's cases], with a situation of violation of a different and much more serious law than the law applicable to the two hundred other candidates. The Commissioner could not, rightly so, consider the applicant and these other candidates in pari conditione nor were they in a situation of like and like.'

... The Court is satisfied that in the present case the determining factor for differential treatment ... was not a quality of the person accused or his political convictions, but the nature and seriousness of the crimes he - and not the other candidates - was charged with.”

By letter dated 12 August 1999 the applicant's lawyer informed the Court that the criminal proceedings instituted against him had not yet been terminated.

B. Relevant domestic law and practice

Local councils in Malta operate within a framework defined by legislation enacted by the Maltese Parliament and derive their regulatory powers from parent legislation. They may make bye laws within their area of competence in exercise of the powers delegated to them by Parliament.

COMPLAINTS

The applicant complains under Article 14 of the Convention in conjunction with Article 6 of the Convention in that criminal proceedings were only brought against independent candidates and not against candidates from the governing and opposition parties although they had committed the same offences. The applicant submits that the police chose to investigate him and the one other independent candidate to the exclusion of all other candidates in the local elections whose names were listed as having failed to declare election expenses. In the applicant's submission, it was this selective approach which led to the bringing of additional charges against him and the other independent candidate.

The applicant also maintains that the selective prosecution of which he was a victim gave rise to a violation of Article 14 in conjunction with Article 3 of Protocol No. 1 to the Convention. The applicant states that he risks having his election overturned if convicted.

THE LAW

1. The applicant complains that he has been discriminated against in breach of Article 14 of the Convention taken in conjunction with Article 6 thereof. These Articles stipulate to the extent relevant:

Article 14

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as ... political or other opinion, ...”

Article 6

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...”

 

 The applicant maintains that, as an independent candidate in the local elections, he was singled out by the police for prosecution in connection with an electoral offence. Although all the candidates representing the government and official opposition parties had committed the same offence, no charges were brought against any of them. The applicant draws attention to the fact that the only other candidate against whom charges were brought was also an independent candidate. In his submission, the fact that he was targeted for prosecution for non-declaration of his electoral expenses paved the way for the bringing of additional charges against him.

The Court recalls that, according its established case-law, Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has effect solely in relation to the "rights and freedoms" safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of one or more of such provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts of the case fall within the ambit of one or more of the latter (see, inter alia, the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, p. 35, § 71).

Insofar as the applicant relates his Article 14 complaint to the right to a fair hearing guaranteed by Article 6 of the Convention, the Court notes that there has, as yet, been no determination of the criminal charges brought against him. The applicant's complaints of discrimination are in this respect are therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3. It follows that this part of the application must be rejected in application of Article 35 § 4 of the Convention.

2. The applicant further alleges that the facts relied on also give rise to a breach of Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1 to the Convention. The latter Article provides:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of legislature.”

For the purposes of this complaint, the applicant has linked his right under Article 14 to the enjoyment of his right to stand for election under Article 3 of Protocol No. 1 to the Convention (see the Mathieu-Morin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113, § 51). The Court must determine whether Article 3 of Protocol No. 1 to the Convention is applicable in the circumstances at issue, and in particular whether the election at issue concerned “the free expression of the people in the choice of legislature.”

The Court observes that local councils in Malta, like Naxxar, are entrusted with administrative functions within their respective jurisdictions. Their regulatory powers are defined by statute and they remain subordinate to the central Parliament. The local councils, when operating and providing local services, may only do such things as are expressly or impliedly authorised by statute or by delegated legislation.

The Court recalls that the former Commission took the view that local authorities, by virtue of the subordinate nature of their powers and functions could not be considered part of the legislative body (see, for example, Booth-Clibborn and Others v. the United Kingdom, application no. 11391, decision of 5 July 1985, Decisions and Reports 43, p.26; Ahmed and Others v. the United Kingdom, Annex to Reports of Judgments and Decisions 1998-VI, p. 2404, § 98). The Court sees nothing in the powers and functions of Naxxar Council which would lead it to a contrary conclusion in the case at issue.

For the above reason the Court finds that Article 3 of Protocol No. 1 is not applicable to the elections at issue and consequently Article 14 of the Convention is not applicable either. On that account the applicant's complaint under this head is inadmissible ratione materiae and must be rejected in application of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Erik Fribergh Christos Rozakis 
 Registrar President

52492/99 - -


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