THE FACTS

Whereas the facts presented by the applicant may be summarised as
follows:

The applicant is a citizen of the United Kingdom and Colonies, born in
1915 and resident at Birkirkara in Malta. He is at present unemployed
but was previously Director of the Malta Information Services. The
applicant is represented by Messrs. .. & Co., solicitors of London.

1. On .. and .. October 1964, the applicant was tried before the
Criminal Court for the Island of Malta and its Dependencies before the
Chief Justice sitting with a jury. The applicant was convicted on
charges of complicity in the forgery of a public instrument (a will)
and attempting to obtain money or property by false pretences and
sentenced to thirteen months' imprisonment.

2. The applicant has invited the attention of the Commission to the
following legislative provisions:

i. Malta Independence Act 1964

By this Act of the United Kingdom Parliament, Malta attained fully
responsible status within the Commonwealth and on the appointed day (21
September 1964) Her Majesty's Government of the United Kingdom had no
responsibility for the Government of Malta.

ii. Malta Independence Order 1964 (Constitution of Malta) S.I. No.
1398/1964

By this Order in Council, made in exercise of the power conferred upon
Her Majesty by Section 1 (1) of the Malta Independence Act 1964, Her
Majesty by in Council granted to Malta her Constitution, the following
provisions of which are relevant to this application.

Section 40 (1)

"Whenever any person is charged with a criminal offence he shall,
unless the charge is withdrawn, be afforded a fair hearing within a
reasonable time by an independent and impartial court established by
law".

Section 40 (7)

"When a person is tried for any criminal offence, the accused person
or any person authorised by him in that behalf shall, if he so requires
and subject to payment of such reasonable fee as may be prescribed by
law, be given within a reasonable time after judgment a copy for the
use of the accused person of any record of the proceedings made by or
on behalf of the Court".

Section 103 (1)

1. "An appeal shall lie from decisions of the Court of Appeal to Her
Majesty in Council as of right in the following cases:

a. where the matter in dispute on the appeal to Her Majesty in Council
is of the value of five hundred pounds or upwards or where the appeal
involves directly or indirectly a claim to or question respecting
property or a right of the value of five hundred pounds or upwards,
final decisions in any civil proceedings; and

b. such other cases as may be prescribed by Parliament.

2. Subject to the provisions of Section 64 of this Constitution, an
appeal shall lie from the decisions of the Constitutional Court to Her
Majesty in Council as of right.

3. An appeal shall lie from the decisions of the Court of Appeal to Her
Majesty in Council with the leave of the Court of Appeal in the
following cases:

a. wherein the opinion of the Court of Appeal, the question involved
in the appeal is one that, by reason of its great general or public
importance or otherwise, ought to be submitted to Her Majesty in
Council, decisions in any civil proceedings, and

b. such other cases as may be prescribed by Parliament.

4. Nothing in this section shall affect any right of Her Majesty to
grant special leave to appeal from decisions of the Court of Appeal or
the Criminal Court to Her Majesty in Council in any civil, criminal or
other matter".

Section 104

1. "As from such date as may be prescribed by law not being later than
three years after the appointed day, there shall be a right of appeal
to the Superior Court against any judgment other than a judgment of
acquittal, of any Superior Court given in its original jurisdiction in
any criminal matter.

2. Any such right of appeal shall be exercisable in accordance with
such procedure as may be prescribed by law".

iii. By Act No. 44 (Supplement to the Malta Government Gazette No.
12042 of 21 July 1967) a court of Criminal Appeal was established in
Malta, and by Section 1 (2) there was provided:

"This Act shall come into operation on the twentieth day of September
1967 and the provisions therein contained insofar as they relate to the
right of appeal and the exercise of such right shall apply in respect
of any criminal proceedings which are pending or begun before Her
Majesty's Criminal Court on or after that day".

iv. Sections 474 and 523 of the Malta Criminal Code which provides:

"Notes of the evidence of the witnesses shall be taken down in brief
by the Court".

"The Registrar shall keep a Register recording therein the proceedings
of the Court in the language in which such proceedings are conducted,
and such register shall constitute authentic evidence of such
proceedings".

3. The applicant has referred to a list of documents contained in the
official record of the proceedings of his trial. He points out that the
record does not, however, contain any official record of the trial
judge's summing up as a transcript, or even notes, of the evidence
given by the prosecution or defence witnesses at the trial.

4. At a date not indicated by the applicant he lodged a petition with
the Privy Council in which he applied for special leave to appeal from
his conviction and sentence or for such further or other relief which
might be found appropriate. The applicant alleged that the failure to
keep a full record of the trial rendered him unable to make submissions
regarding the evidence and regarding misdirections in the summing up
and therefore deprived him of his right to seek leave to appeal in the
Privy Council.

On .. June 1966, the Judicial Committee of the Privy Council declared
itself unable to advise Her Majesty in Council that leave to appeal be
granted, but indicated that, since the applicant had nowhere in the
body of that petition made a specific complaint about the conduct of
the trial or about the propriety of the applicant's conviction and
sentence, there was nothing in the trial against which leave to appeal
could be granted.

Accordingly, the applicant petitioned a second time to Her Majesty in
Council, setting out in an affidavit his complaints in which he, inter
alia, claimed that the trial judge has miscredited the jury on several
points.

This time the Judicial Committee had received the trial judge's private
notes of the evidence taken at the trial but these notes were,
according to the applicant, incomplete and inadequate. On .. July 1967,
the judicial Committee heard and refused the application for leave to
appeal without any reason being assigned for such refusal.

The applicant's third petition was heard and was dismissed on .. July
1968, again without any reason being given.

5. As regards the character of the proceedings in the Privy Council the
applicant has submitted as follows:

The Judicial Committee of the Privy Council is the final Court of
Appeal for all dependent territories of Her Majesty and for such
independent territories of the Commonwealth whose governments desire
to retain such appeals. Malta has not repealed Section 103 of the Malta
Independence Order. The most recent example of an exercise of the
powers contained in 1 A.C. 115. It is, in substance, a judicial
tribunal; but, in form, the Sovereign legislates by Order in Council
to give effect to the advice of the Judicial Committee of the Privy
Council. Lord Sankey L.C. said in British Coal Corporation v. The King
(1935) A.C. 500, 510-512:  "We are really judges, but in form and in
name we are the Committee of the Privy Council. The Sovereign gives the
judgment himself and always acts upon the report which we make. Our
report is made public before it is sent up to the Sovereign in Council.
It is delivered here in printed form. It is a report as to what is
proper to be done on the principles of justice, and it is acted upon
by the Sovereign in full Privy Council. So that you see, in substance,
what takes place is a strictly judicial proceeding". See also Iralebbe
v. The Queen (1964) A.C. 900.

The Judicial Committee of the Privy Council is established under an Act
of the United Kingdom Parliament - the Judicial Committee Act 1833. It
is composed almost entirely of English and Scottish Lords of Appeal in
Ordinary.

It sits exclusively in London in premises provided by the United
Kingdom Government. The cost of administering the Judicial Committee
of the Privy Council falls entirely on the UK Treasury. It is, to this
extent, an United Kingdom Court hearing final appeals from courts of
countries of the Commonwealth.

6. The applicant alleges the following violations of the Convention;

a. violation of the applicant's rights under Article 6 in the
determination of a criminal charge against him, to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law, in that:

i. there was a failure on the part of the judicial authorities in
Malta, uncorrected by the Judicial Committee of the Privy Council, to
ensure compliance with either Section 40 (7) of the Malta Independence
Order or Sections 474 and 523 of the Malta Criminal Code.

ii. there was a failure on the part of the Maltese legislature - the
House of Representatives - in Act No. 44 to give effect to the
constitutional guarantee in Section 104 (1) of the Malta Independence
Order 1964 establishing a court of appeal in Malta, which failure
should have been remedied by the Judicial Committee of the Privy
Council. The refusal of the Malta House of Representatives in Act No.
44 to make the legislation operate retrospectively to 21 September
1964, constituted a violation of the applicant's constitutional right
to an appeal as of right from his conviction, which violation should
have been remedied by the Judicial Committee of the Privy Council, in
accordance with Article 6 of the Convention,  by advising Her Majesty
in Council, either to order an appeal to the Malta Court of Criminal
Appeal or to grant the applicant special leave to appeal to the
Judicial Committee of the Privy Council, which has recently held in
Madzimbamute v. Lardner-Burke, Appeal No. 13 of 1968, 23 July 1968,
that if a petitioner has a right of appeal nothing can be done by any
court to take away that right;

iii. The applicant was supplied with the learned Chief Justice's notes
of the trial, but such notes did not comply with Section 40 (7) of the
Malta Independence Order 1964, nor did it otherwise comply with the
requirements of a fair trial;

b. violation of the applicant's rights under Article 13 to an effective
remedy before a national authority for violation.

7. The applicant maintains that the terms of the declaration of 14
January 1966, in accordance with which the United Kingdom Government
recognised the competence of the Commission to receive petitions under
Article 25 of the Convention does not prevent the Commission from
dealing with the present application.

In this connection, it is submitted that the words, "any territory in
respect of which the competence of the European Commission of Human
Rights to receive petitions has not been recognised by the Government
of the United Kingdom", refer to those territories for whose
international relations the respondent Government is responsible and
to whom the Convention can be applied under Article 63. The words
cannot, in the applicant's opinion, refer to independent territories
for whom the respondent Government is in no was responsible.

If this declaration should be wrong and the first line of the
declaration does refer to territories other than those falling within
Article 63, the applicant maintains that the second line of the
declaration is a derogation from the rights conferred on United Kingdom
citizens in respect of acts done or occurred within the United Kingdom,
Article 25, paragraph (2) of the Convention specifically permits a
limitation in time on any declaration and by implication does not
permit any form of limitation other than those limitations required by
international law. It is sound law that nothing done in a foreign
territory could be the subject of a petition under Article 25. But
where the territory retains some dependency, such as the retention of
an English legal institution, namely the Judicial Committee of the
Privy Council, the form of the declaration of 14 January 1966 should
be regarded as including and not excluding such territory whose
citizens are citizens of the respondent Government.

8. The stated object of the applicant's application is to obtain from
Her Majesty in Council an order directing either the Court of Criminal
Appeal in Malta to hear and determine the applicant's appeal against
his conviction and sentence, dated .... of the Convention, 1964 or the
Judicial Committee of the Privy Council to hear and determine on appeal
the applicant's appeal under Section 103 of the Malta Independence
Order 1964; in the alternative a fair and impartial hearing by an
independent tribunal of the applicant's appeal against his conviction
and sentence dated .. October 1964 and damages.

THE LAW

Whereas, insofar as the applicant's complaints relate to his conviction
and sentence and the conduct of the proceedings before the Criminal
Court for the Island of Malta and its Dependencies, it is first to be
observed that the present application is directed solely against the
United Kingdom; whereas it is true that the United Kingdom Government,
by Declaration of 23 October 1953, extended, in accordance with Article
63, the Convention to certain overseas territories, including Malta,
for whose international relations it was then responsible;

Whereas, however, the Convention ceased to apply to Malta under Article
63 when Malta became an independent State on 21 September 1964.

Whereas, the applicant's above complaints relate to events which have
occurred in Malta subsequent to the said date; whereas these events can
in no way be held to involve any responsibility under the Convention
of the Government of the United Kingdom; whereas, therefore, the
Commission has no competence ratione personae to examine these
complaints; whereas it follows that, in this respect, the application
is incompatible with the provisions of the Convention within the
meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.

Whereas the applicant's complaints also concern the rejection by the
Judicial Committee of the Privy Council of his petitions for special
leave to appeal to it and the resulting failure of the Judicial
Committee not remedy irregularities allegedly committed by the judicial
authorities and legislature of Malta;

Whereas the Commission has considered the various arguments submitted
by the applicant in order to support his contention that, in deciding
on the applicant's applications for leave to appeal, the Judicial
Committee was in fact sitting as a court of the United Kingdom (see
paragraph 5 of THE FACTS above); whereas, however, the Commission is
of the opinion that, in the proceedings which form the subject of the
present application, the Judicial Committee of the Privy Council did
not constitute a court or institution of the United Kingdom for whose
acts, or failure to act, the United Kingdom Government could be held
responsible under the Convention;

Whereas, in this connection, the Commission observes in a case already
quoted by the applicant (Iralebbe v. The Queen [1964] A.C. 900; AER
251, 259) the Judicial Committee has held, when considering a petition
for special leave to appeal against conviction by the Supreme Court of
Ceylon, that "The Privy Council appeal is part of the judicial system
of Ceylon ... It is not as if the Judicial Committee was in  essence
an English institution or an institution of the United Kingdom ... If
and when a territory having institutional power to do so ... decided
to abrogate the appeal to the Judicial Committee from its local courts,
what it does is to effect an amendment of its own judicial structure".

Whereas again the Commission has no competence to examine this part of
the application ratione personae; whereas it follows that, also in this
respect the application is incompatible with the provisions of the
Convention within the meaning of Article 27, paragraph (2) (art. 27-2),
of the Convention;

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE