CASE OF ZARB ADAMI v. MALTA
Violation of Art. 14+4-3-d;Not necessary to examine Art. 14+6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
Giovanni Bonello;Javier Borrego Borrego;Josep Casadevall;Kristaq Traja;Lech Garlicki;Nicolas Bratza
7. The applicant is a Maltese national and lives in Attard, Malta. 8. The facts of the case, as submitted by the parties, may be summarised as follows. 9. The applicant is a pharmacist in Malta. From 1971 he was placed on the lists of jurors and remained on them until 2005. 10. Between 1971 and 1997, the applicant was called to serve as a juror in three different sets of criminal proceedings. On these occasions, he was called to serve both as a juror and as a foreman of the jury. 11. In 1997 the applicant was again called to appear before the Criminal Court to serve as a juror. This time he failed to attend on the requested date and on 14 April 1997 he was fined 100 Maltese liri ((MTL) – approximately 240 euros (EUR)). 2. The constitutional proceedings 12. As the applicant failed to pay the fine, on 11 June 1997 the Registrar of the Courts of Malta submitted an application to the Criminal Court. It asked that court to summon the applicant before it and/or to convert the fine imposed into a term of imprisonment. 13. At the sitting of 26 June 1997 before the Criminal Court, the applicant raised the plea that the fine imposed on him was unconstitutional and constituted a breach of his fundamental rights. He alleged, in particular, that the sanction was discriminatory in terms of Article 45 of the Constitution and Article 14 of the Convention taken in conjunction with Article 4 § 3 (d), because it subjected him to burdens and duties to which other persons in the same position were not subjected. Moreover, the law and/or the domestic practice exempted persons of the female sex from jury service whereas, de facto, men were not offered this exemption. 14. Considering that the applicant’s plea was not merely frivolous and/or vexatious, on 29 September 1997 the Criminal Court referred it to the First Hall of the Civil Court. 15. Before the Civil Court, the applicant alleged that the Maltese system penalised men and favoured women, as statistical information showed that during the preceding five years only 3.05% of jurors had been women whereas 96.95% had been men. Moreover, the burden of jury service was not equitably distributed but was placed on a very small proportion of the population: in 1997 the lists of jurors represented only 3.4% of the list of voters. In practice, those who had on one occasion been placed on the lists of jurors would remain on them until they were disqualified, while others who also satisfied all the requirements were de facto exempted from such civic obligation. 16. In a judgment of 5 February 1999, the Civil Court rejected the applicant’s claims. It held that in stating that every Maltese citizen who had attained the age of 21 qualified to serve as a juror the law did not make any distinction between citizens. More specifically, there was no distinction between men and women. As to the practice criticised by the applicant, the latter had not substantiated his allegation that there were other persons eligible to serve as jurors who managed to avoid performing their duties. Moreover, the applicant had failed to seek exemption from jury service in accordance with domestic law. 17. The Civil Court also observed that the applicant had not proved that he was being treated differently to such an extent that the burdens and obligations imposed on him were greater than those imposed on another person. In particular, it had not been established that people who had been on the lists of jurors as long as the applicant had been removed without a valid reason, or that persons who were in a situation comparable to that of the applicant were left off the lists. The applicant had also failed to submit any evidence showing that the discrepancies between women and men called to serve as jurors were specifically attributable to an intention to discriminate between the sexes or were aimed at giving an unjust advantage to women in relation to men. 18. The applicant appealed against the judgment of 5 February 1999 to the Constitutional Court. He observed, in particular, that the existence of discrimination was clearly shown by the statistics he had produced. Given this factual background, it was unnecessary to prove an intention to discriminate on the part of the authorities. 19. In his submissions, the applicant pointed out that jury service was a burden as it required the person concerned to abandon his or her work in order to attend court hearings regularly; moreover, it imposed a moral burden to judge the innocence or guilt of a person. According to the Constitution of Malta and the Convention, social burdens should be shared by all in an equitable manner. However, statistics showed that lists of foremen were composed of 0.74% of women and 99.26% of men, and that the lists of jurors represented only 3.4% of the list of voters. 20. In a judgment of 2 November 2001, the Constitutional Court dismissed the applicant’s appeal and confirmed the judgment of the Civil Court. 21. The Constitutional Court reiterated that neither the law nor the administrative rules in relation to the compilation of the lists of jurors were in any way discriminatory. In fact, the statistics showed that the number of women on the lists of jurors was 145 in 1996 (almost double the number of the previous year), and that this number increased to 2,490 in 1997. Therefore, an irreversible administrative process had been set in motion in order to bring the number of women on the lists into line with that of men. 22. The Constitutional Court acknowledged, however, that the number of women actually called to serve as jurors was very low: only five per year in the years 1995, 1996 and 1997. This was clearly the result of the jury selection procedure, in which the reasons militating for and against the choice of a certain person as juror were evaluated. The results were dependant on many factors, such as the element of luck, challenges brought by the defence and exemptions granted by the courts. It was true that women were exempted from jury service for social, family and cultural reasons; however, this was perfectly legitimate and lawful when it was as a consequence of a claim by the defence, the prosecutors or the presiding judge. 23. The Constitutional Court also agreed that it appeared that the manner in which the lists of jurors were compiled favoured a situation in which when a person was placed on the lists he remained on them until the age restriction was reached. Therefore the applicant’s grievance that this system seemed to punish those persons who were on the lists could be justified. Thus, the Constitutional Court suggested that the system be amended and that the lists be periodically changed in order to exclude those persons who had already been called for jury service. 24. As concerned the applicability of Article 14 of the Convention, the Constitutional Court noted that jury service should be considered “a normal civic obligation” within the meaning of Article 4 of the Convention, and therefore Article 14 came into play. The Constitutional Court considered, however, that the applicant had not been subjected to burdensome treatment simply because he had had to serve as a juror on three occasions over a span of seventeen years. In any case, this circumstance did not entitle him to take the law into his own hands and decide to ignore the court summons. Instead, he should have made use of the ordinary remedies available to him, such as filing a request for exemption from jury service with the competent court. Had this request been refused, he could have appealed. 25. The Constitutional Court also rejected the applicant’s submission that the fine imposed on him was discriminatory. It observed that anyone who had been fined by the competent court was obliged by law to pay the fine and that anyone who disobeyed an order of a court was liable to be sanctioned. 26. On an unspecified date in 2003, the applicant petitioned the Registrar of the Criminal Court. He observed that, according to the Government Gazette of 28 August 2003, his name had been registered on the List of Jurors and on the List of Special Jurors. However, as he was a lecturer at the University of Malta, he sought exemption from jury service in accordance with Article 604(1) of the Criminal Code (hereinafter “the CC”). 27. By a decision of 23 October 2003, the Registrar of the Criminal Court rejected the applicant’s petition. 28. Having been summoned once again to serve as a juror in another trial, in 2004 the applicant requested to be exempted from jury service under Article 607 of the CC. This application was rejected by the competent domestic court. 29. On 18 April 2005 the applicant requested once again to be exempted from serving as a juror. He relied on Article 604(1) of the CC, providing an exemption for full-time lecturers at the University. On 25 April 2005 his request was accepted. 30. According to Article 603(1) of the CC, “Every person of the age of twenty-one years or upwards, residing in Malta and being a citizen of Malta, shall be qualified to serve as a juror provided such person has an adequate knowledge of the Maltese language, is of good character and is competent to serve as a juror.” 31. The compilation of the lists of jurors is regulated by Article 605 of the CC. The lists are drawn up by the Commissioner of Police together with two magistrates and the Registrar of the Courts. They are published in the Government Gazette in the month of August each year. Within fifteen days from the publication any person who, not possessing the qualifications required by law to serve as a juror, desires to be struck off the lists may file an application before the Criminal Court. The court shall proceed summarily on the application and the registrar shall note on the lists any correction which the court may order. Subsequently, the names of the jurors are written down on separate ballots of paper and every month ballots are drawn. 32. Article 604 of the CC provides: “(1) The following persons are exempted from serving as jurors: Members of the House of Representatives, judges, clergymen, members of the Armed Forces of Malta, persons holding the office of Head of a Government Department and their deputies, the magistrates, the Registrar of Courts, officers of the Executive Police, professors of the University, teachers of the Government secondary, primary and technical schools, District Medical Officers, health inspectors, the Principal Probation Officer and Probation Officers. (2) Moreover the court may, on an application to that effect, exempt from serving as a juror any apothecary of a village and any physician, surgeon or obstetrician actually practising his profession, and, in general, any person who has completed the sixtieth year of his age, unless, in some particular case, the court deems otherwise for the ends of justice. (3) A person who has the care of a family or of a person who suffers from any physical or mental infirmity shall also be exempt from serving as a juror.” 33. Article 607 of the CC provides that any person who is not qualified or liable to serve as a juror, or who may have special reasons for asking to be exempted from serving as a juror, may bring the matter before the court, by means of an application to be filed within four days after the service of a writ of summons. The court may, “if it deems the reasons alleged to be good, ... order the registrar to cancel the name of such person”. 34. According to Article 609 of the CC, if a summoned person (that is, a person called to serve as a juror) fails to appear before the court at the time stated in the writ, he will be sentenced by the court to a fine and may be compelled to serve as a juror by means of a warrant of escort or arrest. The court may, on an application to that effect, remit the fine if it is satisfied that there was good cause for the non-appearance.