Apotheker beboet na weigering deelname aan jury - Mensenrechtenhof veroordeelt Malta wegens discriminatie (en)

Chamber Judgment - Zarb Adami v. Malta

The European Court of Human Rights has today notified in writing its Chamber judgment¹ in the case of Zarb Adami v. Malta (application no. 17209/02).

The Court held by six votes to one that there had been a violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights, read in conjunction with Article 4 § 3 (d) (prohibition of slavery and forced labour) of the Convention.

Under Article 41 (just satisfaction), the Court awarded the applicant 7,752 euros (EUR) for costs and expenses. (The judgment is available only in English.)

• 1. 

  Principal facts

The applicant, Maurice Zarb Adami, is a Maltese national who lives in Attard (Malta). He is a pharmacist.

From 1971 he was placed on the list of jurors in Malta and remained on the list until at least 2002. Between 1971 and 1997 he served as both a juror and foreman in three different sets of criminal proceedings.

In 1997 he was called again to serve as a juror, but failed to appear and was fined approximately EUR 240.

As the applicant failed to pay the fine, he was summoned before the Criminal Court. He pleaded that the fine imposed on him was discriminatory in terms of Article 45 of the Constitution and Article 14 of the Convention, taken in conjunction with Article 4 § 3 (d), as other people in his position were not subjected to the burdens and duties of jury service and the law and/or the domestic practice exempted women from jury service, but not men.

His case was referred to the First Hall of the Civil Court, before which the applicant alleged that the Maltese system penalised men and favoured women; during the preceding five years only 3.05% of women had served as jurors as opposed to 96.95% of men. Moreover, the burden of jury service was not equitably distributed; in 1997 the list of jurors represented only 3.4% of the list of voters. On 5 February 1999 the First Hall of the Civil Court rejected the applicant’s claims.

./..

He appealed, stressing that jury service was a burden, as jurors were required to leave their work to attend court hearings regularly. It also imposed a moral burden to judge the innocence or guilt of a person. His appeal was rejected.

In 2003, as a lecturer at the University of Malta, the applicant unsuccessfully sought exemption from jury service, under Article 604(1) of the Criminal Code (CC).

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. His application was refused.

On 18 April 2005 the applicant again requested to be exempted from jury service, relying on Article 604 (1) of the CC, which provides an exemption for full-time lecturers at the University. On 25 April 2005 his request was accepted.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 22 April 2002. Following a hearing on 24 May 2005, the application was declared admissible.

Judgment was given by a Chamber of seven judges, composed as follows:

Nicolas Bratza (British), President,

Josep Casadevall (Andorran),

Kristaq Traja (Albanian),

Lech Garlicki (Polish),

Javier Borrego Borrego (Spanish),

Ljiljana Mijovi? (citizen of Bosnia and Herzegovina), judges,

Justice Joseph Filletti (Maltese), ad hoc judge,

and also Lawrence Early, Section Registrar

• 3. 

  Summary of the judgment²

Complaint

The applicant complained that he had been the victim of discrimination on the ground of sex, as the percentage of women requested to undertake jury service in Malta was negligible, and that he had been obliged to face criminal proceedings in relation to the imposition of a discriminatory civic obligation. He relied on Article 14 of the Convention taken in conjunction with Articles 4 § 3 and Article 6 (right to a fair hearing).

Decision of the Court

Article 14 read in conjunction with Article 4 § 3

Applicability

The Court considered that compulsory jury service as it exists in Malta is one of the "normal civic obligations" envisaged in Article 4 § 3 (d) of the Convention. It further observed that the applicant did not offer himself voluntarily for jury service and that his failure to appear led to the imposition of a fine, which could be converted into a term of imprisonment. On account of its close links with the obligation to serve, the obligation to pay the fine also fell within the scope of Article 4 § 3 (d). It followed that the facts in question came within the ambit of Article 4 and that Article 14 was accordingly applicable.

Difference in treatment between people in similar situations

The Court observed that it was accepted by the applicant that the difference in treatment complained of did not depend on the wording of Maltese law in force at the relevant time, which made no distinction between sexes, both men and women being equally eligible for jury service. The discrimination at issue was on the contrary based on what the applicant described as a well-established practice, characterised by a number of factors, such as the manner in which the lists of jurors were compiled and the criteria for exemption from jury service. As a result, only a negligible percentage of women were called to serve as jurors.

The Court reiterated that statistics were not by themselves sufficient to disclose a practice which could be classified as discriminatory. At the same time, the Court considered that discrimination potentially contrary to the Convention might result not only from a legislative measure, but also from a de facto situation.

The Court noted that in 1997 – the year in which the applicant was called to serve as a juror and failed to attend the court’s meeting – the number of men (7,503) enrolled on the lists of jurors was three times the number of women (2,494). In the previous year that difference was even more significant, as only 147 women were placed on the lists of jurors, as opposed to 4,298 men. The Court was also struck by the fact that in 1996, five women and 174 men served as jurors. The Court considered that those figures showed that the civic obligation of jury service had been placed predominantly on men. Therefore, there had been a difference in treatment between two groups – men and women – which, with respect to jury service, were in a similar situation.

The Court accepted that, since 1997 an administrative process had been set in motion in order to bring the number of women registered as jurors in line with that of men. As a result, in 2004, 6,344 women and 10,195 men were enrolled on the list of jurors. However, that did not undermine the finding that at the relevant time only a negligible percentage of women were enrolled on the lists of jurors and were actually requested to perform jury service.

Objective and reasonable justification

The Court recalled that if a policy or general measure had disproportionate prejudicial effects on a group of people, the possibility of its being considered discriminatory could not be ruled out even if it was not specifically aimed or directed at that group. Moreover, very weighty reasons would have to be put forward before it could regard a difference of treatment based exclusively on the ground of sex as compatible with the Convention.

In the applicant’s case, the Maltese Government argued that the difference in treatment depended on a number of factors. Jurors were chosen from the part of the population which was active in the economy and in the professions. Moreover, according to Article 604 (3) of the CC, an exemption from jury service might be granted to those taking care of their family and more women than men could successfully rely on such a provision. Finally, “for reasons of cultural orientation”, defence lawyers might have had a tendency to challenge female jurors.

The Court doubted whether the factors indicated by the Government were sufficient to explain the significant discrepancy in the repartition of jury service. It furthermore noted that the second and third factors related only to the number of females who actually performed jury service and did not explain the very low number of women enrolled on the lists of jurors. In any event, the factors highlighted by the Government only constituted explanations of the mechanisms which had led to the difference in treatment complained of. No valid argument had been put before the Court in order to provide a proper justification for it. In particular, it had not been shown that the difference in treatment pursued a legitimate aim and that there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

The Court therefore found that there had been a violation of Article 14, read in conjunction with Article 4 § 3 (d).

That conclusion dispensed the Court from examining whether the applicant had also been discriminated against vis-à-vis other men who, though eligible for jury service, had never been summoned to serve as jurors.

Article 14 read in conjunction with Article 6

The Court observed that the applicant did not allege that the proceedings directed against him were in any way unfair or that any of the rights guaranteed by Article 6 had been violated. In any case, it noted that the criminal proceedings were a mere consequence of the existence of the discriminatory civic obligation. Having regard to its finding that there had been a violation of Article 14 taken in conjunction with Article 4 § 3 (d), the Court did not consider it necessary to examine whether there had also been a violation of Article 14 read in conjunction with Article 6.

Judges Bratza and Garlicki expressed concurring opinions and Judge Casadevall expressed a dissenting opinion, which are annexed to the judgment.

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.