In a press conference by Smash Communications Ltd and reported in The Times last Saturday, reference was made to a judgement by the Civil Court, First Hall, in the case instituted by Smash against the Broadcasting Authority (MBA) and myself, as CEO at the time the lawsuit was filed.

There is still an important ingredient which has been totally omitted from the Civil Court, First Hall’s judgement...- Kevin Aquilina

Smash challenged the MBA’s powers to issue a charge against a radio or television station, which charge was subsequently to be adjudicated by the MBA.

The court considered that such procedure was in breach of the principle of natural justice, which states that no person may be a judge in his own cause. In Latin, lawyers refer to this principle as the nemo iudex in causa propria.

The consequences of this judgement, which is being appealed by the defendants, are extremely serious to the Maltese system of administrative offences that are essentially based on the pattern of an administrative authority deciding an administrative offence with a right to set aside that decision either through judicial review, under article 469A of the Code of Organisation and Civil Procedure (as is the case under the Broadcasting Act), or through other forms of review such as by appealing to an Appeals Board or Tribunal with a further appeal, normally restricted to a point of law from the Appeals Board’s or Tribunal’s decision, to the Court of Appeal.

This is essentially the whole iter of the administrative proceedings.

Unfortunately, in its judgement the Civil Court, First Hall ignored all the iter of administrative proceedings and restricted itself to only the first stage of such proceedings. That is, where the administrative authority issues a charge, either itself or through a functionary of the authority, against another person who is alleged to have contravened the law that the administrative authority is by law requested to uphold.

The Civil Court, First Hall, concluded that, in such a case, the MBA is acting as prosecutor and judge in its own cause and should, therefore, be found in breach of such basic principle of natural justice. However, the court stopped at the first stage of the proceedings and did not consider the possibility of a review mechanism. Such mechanism exists under article 469A of the Code of Organisation and Civil Procedure where the Civil Court, First Hall and, on appeal, the Court of Appeal, may review the decision of the administrative authority.

So the second stage, that of judicial review, can annul the decision of the administrative authority. I must confess, however, that this is not an argument I am drawing. It is what the European Court of Human Rights has been holding since its inception when faced with cases of this sort.

A case in point very much similar to the case of Smash is the ECHR’s judgement in Sigma Radio Television Limited vs Cyprus (application no. 32181/04), decided on July 21, 2011.

The Cyprus Radio and Television Authority (the broadcasting regulator in Cyprus) had issued 27 decisions, some on its own motion and others following complaints, against Sigma Radio Television Limited. The company was invited to make submissions against the charges made by the Cypriot broadcasting authority. Hearings were held in all 27 cases and the company made both written and/or oral submissions in some of the cases.

The company was fined and the fines were settled. Nevertheless, the company sought the annulment of 25 decisions before the Cypriot Supreme Court where the regulatory authority had imposed fines.

The company argued before the Supreme Court that “there had been a breach of the rules of natural justice on the ground that the authority had acted in many capacities at the same time, namely, as prosecutor, investigator-witness and as a judge and that it had imposed fines which were paid into its own fund”.

The company claimed, in particular, that the imposition of pecuniary fines by an administrative body and the exercise of regulatory authority by a public authority other than the state itself was unconstitutional.

When the Cypriot Supreme Court delivered its judgement it dismissed these arguments holding that “the procedure pursued by the authority fulfilled the safeguards of impartiality as there had been a satisfactory distinction between the various stages of the procedure, which consisted in the collection of the facts, their preliminary examination, the briefing of the company in relation to them, affording it the right to be heard, in writing or orally, and the final adjudication. The fact that the fines, in accordance with the relevant provisions of the Radio and Television Stations Law, had been deposited with the authority was consistent with impartiality, as no private or personal financial interest was involved”.

The Supreme Court further observed that “the exercise of regulatory powers on behalf of the state by a public authority established by law was constitutional”.

The company, dissatisfied with the Supreme Court’s judgement, took the case before the highest human rights court in Europe. The ECHR also confirmed the Cypriot Supreme Court’s judgement.

The press release issued by the ECHR registry sums it up as follows: “In examining the applicant company’s complaint concerning the proceedings before the authority and the scope of the judicial review proceedings, the Court considered that the combination of different functions which the authority exercised, and in particular the fact that all fines were deposited in its own fund for its own use, gave rise to legitimate concerns that it lacked the necessary structural impartiality to comply with the requirements of article 6.

“However, its decisions were subject to judicial control by the Supreme Court, which could have annulled them on a number of grounds, including in the event that a decision had been reached on the basis of a misconception of fact or law, in the event that there had been no proper enquiry or a lack of due reasoning, or on procedural grounds. In the proceedings reviewing the authority’s decisions, the Supreme Court had examined all complaints brought forward by the applicant company and had given clear reasons for their dismissal.”

The ECHR reiterated that “even where an adjudicatory body, including an administrative one as in the present case, which determines disputes over ‘civil rights and obligations’ does not comply with article 6 paragraph 1 in some respect, no violation of the convention can be found if the proceedings before that body are subject to subsequent control by a judicial body that has ‘full’ jurisdiction and does provide the guarantees of article 6 paragraph 1”.

In conclusion, the Court held that the scope of the review of the Supreme Court in the judicial review proceedings was sufficient to comply with the right to a fair trial and declared the complaint manifestly ill-founded.

The MBA and its chief executive have been wounded by the Civil Court’s judgement but not yet defeated – vulneratus non victus.

There is still an important ingredient which has been totally omitted from the Civil Court, First Hall’s judgement and from the sense of jubilation and triumph manifested by various broadcasters as reported on Monday. That is the authoritative judgement of none other than the top European court in the realm of human rights – the ECHR’s judgement in the Sigma case. What better comfort than this can the MBA and its chief executive have to put their mind at rest as to the legality of their action in terms of the Broadcasting Act?

Prof. Aquilina is the Dean of the Faculty of Laws and a former chief executive officer of the Broadcasting Authority.

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