7 - Giovanni Bonello

Giovanni Bonello The Twenty-First Day of February, 2019 - Black Thursday for the Constitutional Court

Giovanni Bonello was a judge at the European Court of Human Rights for twelve years, up to 2010. Before that, he had been a lawyer in private practice, specialising in constitutional and human rights litigation, defending 170 human rights lawsuits before local and international courts.

He is the author of thirty books on art and history, four of which won the Best Book of the Year award. Five full-feature books and a special edition of a law journal have been published about his achievements, which have also been the subject of university dissertations. He has recently published in book-form a critique of the workings of the Constitutional Court of Malta: ‘Misunderstanding the Constitution’, acclaimed as “the most important book of the decade” He was President of the Malta Historical Society, and is general editor of Fondazzjoni Patrimonju Malti publications, consultant to the Palace Regeneration project and Chairman of the University Ethics and Disciplinary Board, and of the Drugs Offenders Rehabilitation Board.

He is the Chairman of the Bank of Valletta Arts Committee, and of the Strickland Foundation and sat on the Fortunato and Enrico Mizzi Foundation. He was a member of the main board of MEPA and chaired the National Committee for the Reform of the Administration of Justice.

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he Constitutional Court of Malta will celebrate the 21st of February as Black Thursday. This is not due to the fact that on that date five of its judgments were set aside by the European Court of Human Rights in Strasbourg (ECtHR) ,but because the government, the very party which the Maltese courts had advantaged to the maximum, let it be known, that those five Maltese judgments were indefensible.

So unjustifiable that the government had no alternative but to concede before the ECtHR that the Constitutional Court had got it wrong in all the five cases. The Attorney-General of Malta offered voluntarily to pay substantial reparations to the victims, left unredressed by the Maltese judiciary.

How does a court feel when it is officially and publicly repudiated by BOTH parties to the suit? On that fateful date, an amazingly consistent Constitutional Court was certified to have got it wrong in five out of five separate cases.1 For a court to be disowned by the losing party is unpleasant but expected. For it to be disowned by both the ‘loser’ and the ‘winner’ concurrently is, to say the least, demeaning.

I will focus on only one of these five cases, Calleja v Malta, because I find it emblematic of all that is bankrupt in much of our jurisdiction: spineless timidity, incompetence, political interference, grovelling servility, presumptuousness (they seem to find humiliation preferable to humility), and an irresponsible or deliberate misunderstanding of the very basics of human rights law. Thankfully, that applies to only part of the judiciary. The other part struggles on, burdened by integrity, crippled by dignity, against overwhelming odds.

Malta has one unlovely European record to be proud of and to cultivate jealousy – that of having the highest pro-capita percentage of its human rights judgments which are examined on the merits, rubbished repeatedly by the Supreme Court of Europe. And so far, it is betraying no eagerness to allow any challenge to that record. No other court in Europe aims to attain the soaring heights of disapproval scaled by our courts – not Turkey’s, not Russia’s. That Malta’s constitutional courts only get some right, often by mistake, is due, perhaps exclusively, to the coalescence of these qualities.

1 ECtHR, Azzopardi Vella v Malta (8423/17); Borg v Malta (75119/16); Cassar Torregiani v Malta (61981/16); Portelli v Malta (28404/17); Calleja v Malta (83275/17).

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Calleja must be seen against a background of libel cases which have reached the Strasbourg Court from Malta. There have been five in all, mostly ‘political’ libels.2 Each of these five libel cases went through four judgments by the Maltese courts (Trial Court, Appeal, First Instance constitutional challenge and Constitutional Court). So, in five ‘freedom of expression’ cases, there have been twenty Maltese judgments in all. The ECtHR found that all the twenty Malta judgments had got it wrong, without a single exception. These five cases had been examined by forty different Maltese magistrates and judges, in all. And, may the good Lord bless their enviable consistency, forty out of forty had bungled it.3 Joseph Calleja, a professional journalist, was the editor of an opposition satirical paper, In-Niggieża, the targets of which were obviously the Mintoff government, its ministers, and policies. In 1973, a Gozitan government employee, Miss S, had fallen pregnant and wished to leave Gozo discreetly right away. Minister Joseph Cassar, very close to Mr Mintoff and sometimes deputy Prime Minister, arranged for her to come over to work in Malta in his office.

This gave rise to gossip and hearsay that Minister Cassar had fathered the out-of-wedlock child.

In-Niggieża, in its August 1973 issue, gave prominence to this gossip, broadly accepting it as fact, as it held in convoluted and symbol-ridden words – a culinary parable quite easy to see through.

Superintendent Anthony Mifsud Tommasi charged the editor with two crimes under the press law: Firstly, that of having libelled Minister Cassar, and secondly that of having, through the incriminated article, offended public morality or decency (pudur) in breach of Articles 11 and 15 of Chapter 117 of the Laws of Malta, the Press Ordinance.

The accused countered the first charge of criminal libel by a full retraction and apology, declaring that what was attributed to Minister Cassar had no basis in fact, that he was withdrawing all allegations, and that he was 2 ECtHR, Lombardo and others v Malta (7333/06); Aquilina and others v Malta (28040/08); Mizzi v Malta (17320/10); Falzon v Malta (45751/13); Calleja v Malta (83257/17).

3 See ‘Odd ways Maltese courts understand libel laws’ in The Sunday Times of Malta, 4 November 2018.

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prepared to publish any declaration which would satisfy the injured party.

He either had no hard evidence of his assertion or could not find any witness brave enough to give evidence against Minister Cassar. As to the charge that the article had offended public morality or decency, he denied that the words used could be deemed in breach of the press law.

The Magistrate in charge of the case, who owed his job to Mr Mintoff and Minister Cassar and would look to them for any promotion, proceeded with lightning speed, revolutionary in libel cases.

He first ordered the proceedings to be heard behind closed doors, and that nothing about them be published before they were concluded. The first hearing was held on the 23rd of October, and the judgment was read out on the 14th November, not unlikely the libel case to be decided fastest in the annals of our Quaalude-gulping somnolent courts. The judgment lavished unsolicited learning on various issues which neither party had raised: Was the criminal action time-barred? No. Was Minister Cassar Minister Cassar?

Yes. Was the accused really the editor of the satirical paper? Yes. The court emphasised the lack of evidence offered by the accused in support of the libellous accusations, and that this was a ‘private matter’ (Is the public exercise of the ministerial prerogative of transferring a public employee from one government job to another government job a ‘private matter’? The Magistrate adamantly vouched for that). The court did not give any weight at all to the early plea of guilt or to the retraction and the offer to publish any statement Minister Cassar would wish to make.

The Magistrate went to town on the second charge: He held that the editor had offended public morality and decency. In a gastronomic allegory all about food, the author had dared to use words such as ‘sausage’ and ‘tender thighs’ and ‘lard’. This, the horrified Magistrate twice branded ‘unquestionably pornographic’ and once ‘refined vulgarity and equivocally nauseating’ (‘moqżiża’ [sic], which the Magistrate, in the unrestrainable rush of bootlicking adrenaline, anyway, spelt wrongly).

The Court found the accused guilty on both charges and condemned the editor to three months imprisonment and a fine of £50. This was the first and only time since the war, and up until today, that a journalist, guilty of criminal libel, had been condemned to prison. Mr Mintoff promoted the Magistrate to 146

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Judge some time later. Now he owed both his job and his promotion to Mr Mintoff and Mr Cassar, and any hopes of further promotion were pinned on them too.

Mr Calleja appealed the sentence. Something extremely worrying happened in the interval. To plead his appeal, Mr Calleja hired an opposition MP lawyer. The appeal court put off the case for judgment to the 28th of March 1974. Two days before the judgment was due to be delivered, on 26th of March, the Prime Minister, Mr Mintoff, openly threatened the appeal judge in Parliament: ‘If I catch anyone being swerved because the accused is defended by a member of the Opposition, I will fire the judge. I will say it again.

I will say it’4.

Unsurprisingly, the appeal judge confirmed the sentence, (perhaps knocking off a token few days from the duration of the incarceration – but the later judgments of the Constitutional Courts assert that the appeal judge confirmed the Magistrate’s judgment in its entirety).5 What is undisputed is that the journalist spent 75 days in prison. His father died, broken-hearted, on the eve of the judgment of the Court of Criminal Appeal. A man destroyed, the editor ditched his profession and gave up any political aspirations. The paper stopped publication. Talk of the chilling effect on the free press.

Nothing much happened for many years. Mr Calleja, now a prison convict according to his police conduct sheet, lived uncomfortably with his past, with the realization that he was the only journalist in Malta ever to suffer imprisonment for a press offence since the war. And for offending a nation’s snowflake morality, for being a pornographer, court-certified – do not forget sausage, that unspeakable abomination, the puritan court ruled, appalled at that tragic precipitation of public morality.

Then, the European Court of Human Rights in Strasbourg started sending progressively clearer signals that the punishment of journalists to imprisonment for press offences went directly to the core of the protection of freedom of expression enshrined in Article 10.

4 316-319.

5

Sitting of Parliament of 26 March 1974, Session No. 283, Third Legislature, Debates, pp A copy of this criminal appeal judgment does not seem to be available.

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This was formulated with the utmost precision in the ECtHR judgment of Belpietro c. Italie, decided unanimously on the 24th of September 2013.6 Maurizio Belpietro, an Italian journalist, had been found guilty of defamation in a political case by two consecutive courts in Milan, and had been condemned to the payment of a fine and a suspended sentence of four months imprisonment. The Italian journalist, contrary from his Maltese counterpart, did not spend a single day in jail.

The Strasbourg Court, building on previous case law, ruled that the very sentence of incarceration passed on a journalist, even if suspended, violated the fundamental right to freedom of expression because it was disproportionate to the legitimate aim pursued and because of the chilling effect on journalists in their pursuit of public interest information.

The Court found Italy guilty of breaching Article 10 of the Convention and condemned it to pay the victim â‚Ź10,000 for non-pecuniary damages (pain and suffering) and â‚Ź5000 to cover costs and expenses.

Fortified by this decision from the Strasbourg Court, Mr Calleja sued in Malta for a similar recognition of a breach of his freedom-of-expression rights and for compensation. The Attorney-General raised several pleas. As for the remedy, the AG submitted that, were the court to find a violation, a declaration of such breach on its own would be a just and sufficient remedy, i.e., that no compensation at all should be awarded.

This action was decided by the First Hall Civil Court in its constitutional jurisdiction in favour of Joseph Calleja. In an excellently crafted judgment, academically waterproof and compellingly reasoned, the Court showed itself sensitive to several personal and societal issues raised.7 The Court dealt at some length with all the pleas raised by the defendant, some preliminary and others on the merits. It accepted the plea that the claim by the applicant did not fall under Article 10 of the Convention as the facts alleged happened long before Malta had incorporated the Convention as part of the domestic law of the island.8 Those same facts however attracted the protection of Article 41 of the Constitution, the alleged domestic safeguard to Freedom of Expression.

6 7 8

Belpietro c. Italie, (43612/10), 24 September 2013.

Joseph Calleja vs Avukat Generali, PA 51/14 LSO, 27 October 2016.

Chapter 319 of the Laws of Malta, Act XIV of 1987.

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The Court then dismissed the plea of non-exhaustion of other remedies raised by the Attorney-General. There were no remedies under the domestic legal order apart from real damages (lucrum cessans and damnum emergens) and Maltese law clearly excluded any compensation for moral damages for pain, suffering, reputational loss, etc. The Court also made short shrift of the plea that Calleja’s action be deemed frivolous and vexatious, owing mostly to the length of time the applicant had allowed to elapse between the alleged violation and his action for redress. The court listed several factual and legal reasons to explain the delay and why the passage of time had still left the applicant a victim of a violation of his human rights.

On the merits, the judgment turned into an exhaustive and elaborate overview of Strasbourg case law on the role, functions and limitations of journalists, on the ‘chilling effects’ of harsh punishments against pressmen, and the disservice this renders to a pluralistic and democratic society. Excellent under almost all aspects and a paragon of penetrating and compelling legal drafting.

The judgment established a breach of Article 41 of the Constitution and, as a remedy, condemned the government to pay Joseph Calleja the sum of €5000 damages, each party to bear its own costs.

End of story? No. The Attorney-General appealed to the Constitutional Court, praying that the various pleas raised in first instance, preliminary and on the merits, be upheld by the court. The AG pleaded that the amount of €5000 liquidated by the court in favour of Calleja was unreasonable and excessive. Calleja, in turn, lodged an incidental appeal, submitting that the amount awarded as damages was too low and should be increased and that he should not have been made to bear any costs.

This is when disaster struck. In a calamity of a finding, the Constitutional Court confirmed the breach of the applicant’s fundamental right to freedom of expression by the wrongful judgments of the criminal courts through which he had spent 75 days abusively incarcerated for exercising his fundamental right to freedom of expression. But then, the appellate court agreed with the government that the amount liquidated in favour of the victim was too extravagant and, in spectacular defiance of the Belpietro findings, shrivelled the compensation to €2000. (Exercise: one day at the superior suite of the Mandarin Oriental Hotel in Shanghai puts you back €20,000. Question: 149

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according to the Constitutional Court of Malta, how many days must the certified victim of a human rights violation wrongfully rot in jail, to be able to afford one night in that hotel?).

As if this pitiful mutilation of the compensation awarded was not enough of a punishment for the oppressed target of a human rights nightmare, the Constitutional Court also ordered Mr Calleja to pay the government over half the costs and expenses of the first set of proceedings, one quarter of the costs of the principal appeal and all the costs of the incidental appeal.9 These costs, which the victim had now to disburse out of pocket, amounted to more than three times the sum he ‘won’ as damages. For having had his fundamental human rights trampled upon by the government, for having languished illegally in prison for 75 days, and for having been branded a jailbird by a gross miscarriage of justice, the victim now earned from the Constitutional Court the satisfaction of having to enrich the government, his unpunished and triumphant predator.

The persecuted is now the debtor, and the government, who rode roughshod over his human rights, is the creditor. It was only fair that a human rights court should maul the victim for asking for its protection against assaults on his human rights – he pays that money as entertainment tax on pain and suffering. A sore burlesque of justice but wrapped in a blister pack of silly legal jargon.

This is the Constitutional Court of Malta: This is its dazzling way of redressing the target of a major human rights abuse it had just certified – To condemn the victim to pay the predator. The Constitutional Court is basically telling the government: Injure human rights and we will see to it that there is good money in it for you.

Joseph Calleja took his desolate saga to the European Court of Human Rights, claiming that the €2000 liquidated in his favour by the Constitutional Court were abusive in the circumstances, and that, although recognized as a victim of a serious violation of human rights, even that risible award was utterly nullified by the order to pay costs which exceeded by far the sum awarded.10 9 10

Joseph Calleja vs Avukat Generali, CC, 12 June 2017.

Calleja v Malta, 21 February 2019, 83275/17.

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His application was served on the Attorney-General, who in the Strasbourg Court, performed an amazing 180° volte face. Let us enjoy the acrobatics, even if markedly on the clumsy side.

In the Maltese Courts, the Attorney-General had pleaded that not one Euro was due to Mr Calleja. When the first Court ordered him to pay the victim €5000, the Attorney-General indignantly appealed to the Constitutional Court, arguing that it would be fair and reasonable not to pay Mr Calleja one single cent – A simple declaration that he had suffered a violation of his human rights would be sufficient joy.

Realizing how indefensible the mess created by the Constitutional Court had been, in Strasbourg, the lawyer of the state changed tack and spectacularly. While in Malta he had repeatedly clamoured that the €5000 awarded to the victim by the first court were unreasonable and excessive, in Strasbourg he voluntarily offered the victim more than the sum he had denounced in Malta. He offered to pay the victim €7000 for an out-of-court settlement to avoid the humiliation of another judgment by the ECtHR rubbishing what we, optimistically and for want of a better word, call the Maltese Courts of Justice.

So, the very same state authority in Malta pleads that paying no compensation at all was reasonable, but then voluntarily offers to be ‘unreasonable’ with taxpayers’ money and to pay €7000 in Strasbourg.

This is totally unprincipled: What was unreasonable to the state in the state’s own domestic courts suddenly and by abracadabra becomes reasonable to that same state in an international court.

Mr Attorney-General, if you, as the juridical high priest of the state, solemnly pleaded in the Maltese courts that it would be unreasonable to pay Mr Calleja anything at all, how is it that in Strasbourg you conceded it would be reasonable to pay him €7000? On which occasion were you honest, and on which occasion were you parsimonious with honesty?

I have already remarked elsewhere about these double standards by an organ of the state – one low bar for Malta and one high bar for Strasbourg, or vice versa: ‘these antics, unbecoming the most desperate litigant, become repugnant when they tarnish what we yearn to see as the majesty of the 151

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state. These are the hallmarks of shifting morality, the imposture of those who substitute convenience to ethics’.11 Is it permissible for the state to plead something in Malta and its opposite in Strasbourg? Apparently, it is not only possible – it is the going praxis.

On Black Thursday, 21st February 2019, the Attorney-General’s offer was taken up by the Strasbourg Court, which however also augmented it by the shockingly lavish €2000 the Constitutional Court had already ordered the government to pay.

Calleja’s case was only one of the five cases in which the Attorney-General had to acknowledge in substance that the remedy granted to the victims by the Constitutional Court was farcically outrageous and voluntarily increased that compensation – he did the same in the other four cases too.

These five gestures by the Attorney-General, to rebuff and correct the insensitive howlers of the Constitutional Court, avoided the addition of another five cases to the 90% of the judgments of the Constitutional Court examined on the merits, which the ECtHR overturns.

Malta already has an unbeatable European record of humiliations in Strasbourg. On the 21st February, the victorious-in-Malta government, some applicants and the ECtHR, in a compact common front, saw to it that this dreary record would not look drearier still.

I apologise to my readers. I should have entitled this article ‘Justice – an obituary’.

11

Giovanni Bonello, Misunderstanding the Constitution, Malta, 2018, p 87.

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