One of the controversies which have erupted recently in relation to the Media and Defamation Bill is whether the latter is human rights compliant in relation to Article 7 of the European Convention on Human Rights (ECHR) whose marginal note reads “No punishment without law”.

It reads as follows: “1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

“2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nation.”

The Bill contains a provision which will decriminalise criminal defamatory libel for the future but will retain extant proceedings even after the Bill becomes law. Clause 27(4) states that: “Any criminal proceedings instituted under the repealed Act prior to the coming into force of this Act and which, on the coming into force of this Act, are pending before any court shall continue to be  heard  and  shall  be  determined  by  the  courts  in  terms  of  the repealed Act but the court shall not in awarding any punishment for defamation impose any punishment of imprisonment.”

In other words, from the entry into force of the Bill it would not be possible for the police to institute criminal libel proceedings but, in so far as pending criminal libel proceedings are concerned, these proceedings are saved and can be continued and determined without any difficulty. The question which arises is whether this is lawful under Maltese law and whether it is human rights compliant.

In so far as Maltese law is concerned, the Interpretation Act, enacted in 1975 before Malta incorporated the ECHR into Maltese law through the European Convention Act, states quite clearly that it is possible to adopt the course proposed in the Bill. The Interpretation Act, in article 12, allows Parliament to repeal a criminal offence while saving the operation of that criminal law in relation to pending proceedings. So, to my mind, I see no inconsistency between clause 27(4) of the Bill and article 12 of the Interpretation Act. On the contrary they are in harmony with each other.

The next question which has to be asked is: are article 12 of the Interpretation Act and clause 27(4) of the Bill fully compliant with Article 7 of the ECHR? The answer is in the negative. The European Court of Human Rights (ECtHR) has enunciated in its case law what it refers to as the principle of retrospectiveness of the more lenient criminal law. It has explained this principle in the Grand Chamber’s decision of Scoppola v. Italy (No. 2) of September 17, 2009 as follows:

As the Bill has not been enacted into law, there is still time for government to salvage this situation provided that it understands that there is a problem here

“In the light of the foregoing considerations, the court takes the view that it is necessary to depart from the case law established by the Commission in the case of X v. Germany and affirm that Article 7 § 1 of the Convention guarantees not only the principle of non-retrospectiveness of more stringent criminal laws but also, and implicitly, the principle of retrospectiveness of the more lenient criminal law.

“That principle is embodied in the rule that where there are differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered, the courts must apply the law whose provisions are most favourable to the defendant…

“It follows that the applicant was given a heavier sentence than the one prescribed by the law which, of all the laws in force during the period between the commission of the offence and delivery of the final judgment, was most favourable to him... In the light of the foregoing, the court considers that the respondent State failed to discharge its obligation to grant the applicant the benefit of the provision prescribing a more lenient penalty which had come into force after the commission of the offence.”

This was not the only case where the ECtHR applied the principle of retrospectiveness of the more lenient criminal law. Other cases followed. Such is the case of Öcalan v. Turkey (No 2) of March 18, 2014 where it held that:

“The court notes that the principle of retrospectiveness of the more lenient criminal law, considered by the court in Scoppola (no. 2), as guaranteed by Article 7, is embodied in the rule that where there are differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered, the courts must apply the law whose provisions are most favourable to the defendant.”

In the Öcalan judgment, the court also referred to another case: “In its decision in the case of Hummatov v. Azerbaijan ([dec.], nos. 9852/03 and 13413/04, May 18, 2006), the court approved the parties’ shared opinion that a life sentence was not a harsher penalty than the death penalty.”

In Ruban v. Ukraine decided on July 12, 2016, the ECtHR held as follows: “Article 7 § 1 guarantees not only the principle of non-retrospectiveness of more stringent criminal laws but also, implicitly, the principle of retrospectiveness of the more lenient criminal law.”

In Koprivnikar v. Slovenia, Strasbourg explained these words as follows: “In other words, where there are differences between the criminal law in force at the time of the commission of an offence and subsequent criminal laws enacted before a final judgment is rendered, the courts must apply the law whose provisions are most favourable to the defendant (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 109, September 17, 2009).”

In its judgment in the case of Gouarré Patte v. Andorra the court extended the guarantees of Article 7 concerning the retrospectiveness of the more lenient criminal law to the possibility of retrospective revision of the final sentence if domestic law provided for such a possibility (see Gouarré Patte v. Andorra, no. 33427/10, §§ 33 to 36, January 12, 2016).

By applying the above case law to the Bill, the situation is that under the Bill no punishment will be meted out for criminal libel on its entry into force once this offence is being decriminalised but under the Press Act which will be repealed by the Bill, the punishment is that of a fine. Needless to say, the most lenient of both provisions is the one which imposes no punishment not the one which imposes a fine.

Therefore clause 27(4) of the Bill is not in conformity with Article 7 of the ECHR. On the contrary, it is in breach of human rights. Yet, as the Bill has not been enacted into law, there is still time for government to salvage this situation provided that it understands that there is a problem here which needs addressing.

Kevin Aquilina is Dean of the Faculty of Laws at the University of Malta.

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