EUROPEAN CONVENTION ACT

EUROPEAN CONVENTION

CHAPTER 319

EUROPEAN CONVENTION ACT

To make provision for the substantive Articles of the European

Convention for the Protection of Human Rights and Fundamental

Freedoms, to become and be, enforceable as, part of the Law of Malta.

19th August, 1987

ACT XIV of 1987 , as amended by Acts XXI of 2002 and IX of 2006 ;

and Legal Notice 424 of 2007 .

The short title of this Act is the European Convention Act.

[Article 2]

Articles 2 to 18 of the Convention for the Protection of

Human Rights and Fundamental Freedoms.

ARTICLE 2

(1) Everyone’s right to life shall be protected by law. No one

shall be deprived of his life intentionally save in the execution of a

sentence of a court following his conviction of a crime for which

this penalty is provided by law.

(2) Deprivation of life shall not be regarded as inflicted in

contravention of this Article when it results from the use of force

which is no more than absolutely necessary

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the

escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a

riot or insurrection.

ARTICLE 3

No one shall be subjected to torture or to inhuman or degrading

treatment or punishment.

ARTICLE 4

(1)

No one shall be held in slavery or servitude.

(2) No one shall be required to perform forced or compulsory

labour.

(3) For the purpose of this Article the term "forced or

compulsory labour" shall not include

(a) any work required to be done in the ordinary course of

detention imposed according to the provisions of

Article 5 of this Convention or during conditioned

release from such detention;

(b) any service of a military character or, in case of

conscientious objectors in countries where they are

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recognised, service exacted instead of compulsory

military service;

(c) any service exacted in case of an emergency or

calamity threatening the life or well-being of the

community;

(d) any work or service which forms part of normal civil

obligations.

ARTICLE 5

(1) Everyone has the right to liberty and security of person. No

one shall be deprived of his liberty save in the following cases and

in accordance with a procedure prescribed by law

(a) the lawful detention of a person after conviction by a

competent court;

(b) the lawful arrest or detention of a person for non-

compliance with the lawful order of a court or in order

to secure the fulfilment of any obligation prescribed by

law;

(c) the lawful arrest or detention of a person effected for

the purpose of bringing him before the competent legal

authorities on reasonable suspicion of having

committed an offence or when it is reasonably

considered necessary to prevent his committing an

offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the

purpose of educational supervision or his lawful

detention for the purpose of bringing him before the

competent legal authority;

(e) the lawful detention of persons for the prevention of

the spreading of infectious diseases, of persons of

unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his

effecting an unauthorised entry into the country or of a

person against whom action is being taken with a view

to deportation or extradition.

(2) Everyone who is arrested shall be informed promptly, in a

language which he understands, of the reasons for his arrest and of

any charge against him.

(3) Everyone arrested or detained in accordance with the

provisions of paragraph (1)(c) of this Article shall be brought

promptly before a judge or other officer authorised by law to

exercise judicial power and shall be entitled to trial within a

reasonable time or to release pending trial. Release may be

conditioned by guarantees to appear for trial.

(4) Everyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings by which the

lawfulness of his detention shall be decided speedily by a court and

his release ordered if the detention is not lawful.

(5)

Everyone who has been the victim of arrest or detention in

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contravention of the provisions of this Article shall have an

enforceable right to compensation.

ARTICLE 6

(1) In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair and

public hearing within a reasonable time by an independent and

i m p a r t i a l t r i b u n a l e s t a b l i s h e d b y l a w. J u d g m e n t s h a l l b e

pronounced publicly but the press and public may be excluded from

all or part of the trial in the interests of morals, public order or

national security in a democratic society, where the interests of

juveniles or the protection of the private life of the parties so

require, or to the extent strictly necessary in the opinion of the

court in special circumstances where publicity would prejudice the

interests of justice.

(2) Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law.

(3) Everyone charged with a criminal offence has the

following minimum rights

(a) to be informed promptly, in a language which he

understands and in detail, of the nature and cause of

the accusation against him;

(b) to have adequate time and facilities for the preparation

of his defence;

(c) to defend himself in person or through legal assistance

of his own choosing or, if he has not sufficient means

to pay for legal assistance, to be given it free when the

interests of justice so require;

(d) to examine or have examined witnesses against him

and to obtain the attendance and examination of

witnesses on his behalf under the same conditions as

witnesses against him;

(e) to have the free assistance of an interpreter if he

cannot understand or speak the language used in court.

ARTICLE 7

(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 nations.

ARTICLE 8

(1) Everyone has the right to respect for his private and family

life, his home and his correspondence.

(2)

There shall be no interference by a public authority with

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the exercise of this right except such as is in accordance with the

law and is necessary in a democratic society in the interests of

national security, public safety or the economic well-being of the

country, for the prevention of disorder or crime, for the protection

of health or morals, or for the protection of the rights and freedoms

of others.

ARTICLE 9

(1) Everyone has the right to freedom of thought, conscience

and religion; this right includes freedom to change his religion or

belief and freedom, either alone or in community with others and in

public or private, to manifest his religion or belief, in worship,

teaching, practice and observance.

(2) Freedom to manifest one’s religion or beliefs shall be

subject only to such limitations as are prescribed by law and are

necessary in a democratic society in the interests of public safety,

for the protection of public order, health or morals, or for the

protection of the rights and freedoms of others.

ARTICLE 10

(1) Everyone has the right to freedom of expression. This right

shall include freedom to hold opinions and to receive and impart

information and ideas without interference by public authority and

regardless of frontiers. This Article shall not prevent States from

requiring the licensing of broadcasting, television or cinema

enterprises.

(2) The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law and are

necessary in a democratic society, in the interests of national

security, territorial integrity or public safety, for the prevention of

disorder or crime, for the protection of health or morals, for the

protection of the reputation or rights of others, for preventing the

disclosure of information received in confidence, or for

maintaining the authority and impartiality of the judiciary.

ARTICLE 11

(1) Everyone has the right to freedom of peaceful assembly

and to freedom of association with others, including the right to

form and to join trade unions for the protection of his interests.

(2) No restrictions shall be placed on the exercise of these

rights other than such as are prescribed by law and are necessary in

a democratic society in the interests of national security or public

safety, for the prevention of disorder or crime, for the protection of

health or morals or for the protection of the rights and freedoms of

others. This Article shall not prevent the imposition of lawful

restrictions on the exercise of these rights by members of the

Armed Forces, of the Police or of the administration of the State.

ARTICLE 12

Men and women of marriageable age have the right to marry and

to found a family, according to the national laws governing the

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exercise of this right.

ARTICLE 13

E v e r y o n e w h o s e ri g h t s a n d f r e e d o m s a s s e t f o r t h i n t h i s

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity.

ARTICLE 14

The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status.

ARTICLE 15

(1) In time of war or other public emergency threatening the

life of the nation any High Contracting Party may take measures

derogating from its obligations under this Convention to the extent

strictly required by the exigencies of the situation, provided that

such measures are not inconsistent with its other obligations under

international law.

(2) No derogation from Article 2, except in respect of deaths

resulting from lawful acts of war, or from Articles 3, 4 (paragraph

1) and 7 shall be made under this provision.

(3) Any High Contracting Party availing itself of this right of

derogation shall keep the Secretary-General of the Council of

Europe fully informed of the measures which it has taken and the

reasons therefor. It shall also inform the Secretary-General of the

Council of Europe when such measures have ceased to operate and

the provisions of the Convention are again being fully executed.

ARTICLE 16

Nothing in Articles 10, 11 and 14 shall be regarded as preventing

the High Contracting Parties from imposing restrictions on the

political activity of aliens.

ARTICLE 17

Nothing in this Convention may be interpreted as implying for

any State, group or person any right to engage in any activity or

perform any act aimed at the destruction of any of the rights and

freedoms set forth herein or at their limitation to a greater extent

than is provided for in the Convention.

ARTICLE 18

The restrictions permitted under this Convention to the said

rights and freedoms shall not be applied for any purpose other than

those for which they have been prescribed.

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Articles 1 to 3 of the First Protocol to the Convention for the

Protection of Human Rights and Fundamental Freedoms.

ARTICLE 1

Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way impair

the right of a State to enforce such laws as it deems necessary to

control the use of property in accordance with the general interest

or to secure the payment of taxes or other contributions or

penalties.

ARTICLE 2

No person shall be denied the right to education. In the exercise

of any functions which it assumes in relation to education and to

teaching, the State shall respect the right of parents to ensure such

education and teaching in conformity with their own religious and

philosophical convictions.

ARTICLE 3

The High Contracting Parties undertake to hold free elections at

reasonable intervals by secret ballot, under conditions which will

ensure the free expression of the opinion of the people in the choice

of the legislature.

Articles 1 to 4 of the Fourth Protocol to the Convention for the

Protection of Human Rights and Fundamental Freedoms.

Article 1 - Prohibition of imprisonment for debt

No one shall be deprived of his liberty merely on the

ground of inability to fulfil a contractual obligation.

Article 2 - Freedom of movement

1. Everyone lawfully within the territory of a State shall,

within that territory, have the right to liberty of movement and

freedom to choose his residence.

2. Everyone shall be free to leave any country, including his

own.

3. No restrictions shall be placed on the exercise of these

rights other than such as are in accordance with law and are

necessary in a democratic society in the interests of national

security or public safety, for the maintenance of ordre public, for

the prevention of crime, for the protection of health or morals, or

for the protection of the rights and freedoms of others.

4. The rights set forth in paragraph 1 may also be subject, in

particular areas, to restrictions imposed in accordance with law and

justified by the public interest in a democratic society.

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Article 3 - Prohibition of expuLsion of nationals

1. No one shall be expelled, by means either of an individual

or of a collective measure, from the territory of the State of which

he is a national.

2. No one shall be deprived of the right to enter the territory

of the state of which he is a national.

Article 4 - Prohibition of collective expulsion of aliens

Collective expulsion of aliens is prohibited.

Articles 1 and 2 of the Sixth Protocol to the Convention for the

Protection of Human Rights and Fundamental Freedoms.

Article 1 - Abolition of the death penalty

The death penalty shall be abolished. No one shall be

condemned to such penalty or executed.

Article 2 - Death penalty in time of war

A State may make provision in its law for the death penalty

in respect of acts committed in time of war or of imminent threat of

war; such penalty shall be applied only in the instances laid down

in the law and in accordance with its provisions. The State shall

communicate to the Secretary General of the Council of Europe the

relevant provisions of that law.

Articles 1 to 5 of the Seventh Protocol to the Convention for the

Protection of Human Rights and Fundamental Freedoms.

Article 1 - Procedural safeguards relating to expulsion of

aliens

1. An alien lawfully resident in the territory of a State shall

not be expelled therefrom except in pursuance of a decision

reached in accordance with law and shall be allowed

a.

to submit reasons against his expulsion,

b.

to have his case reviewed, and

c.

to be represented for these purposes before the

competent authority or a person or persons designated

by that authority.

2. An alien may be expelled before the exercise of his rights

under paragraph 1 a, b and c of this Article, when such expulsion is

necessary in the interests of public order or is grounded on reasons

of national security.

Article 2 - Right of appeal in criminal matters

1. Everyone convicted of a criminal offence by a tribunal

shall have the right to have his conviction or sentence reviewed by

a higher tribunal. The exercise of this right, including the grounds

on which it may be exercised, shall be governed by law.

2. This right may be subject to exceptions in regard to

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offences of a minor character, as prescribed by law, or in cases in

which the person concerned was tried in the first instance by the

highest tribunal or was convicted following an appeal against

acquittal.

Article 3 - Compensation for wrongful conviction

When a person has by a final decision been convicted of a

criminal offence and when subsequently his conviction has been

reversed, or he has been pardoned, on the ground that a new or

newly discovered fact shows conclusively that there has been a

miscarriage of justice, the person who has suffered punishment as a

result of such conviction shall be compensated according to the law

or the practice of the State concerned, unless it is proved that the

non-disclosure of the unknown fact in time is wholly or partly

attributable to him.

Article 4 - Right not to be tried or punished twice

1. No one shall be liable to be tried or punished again in

criminal proceedings under the jurisdiction of the same State for an

offence for which he has already been finally acquitted or

convicted in accordance with the law and penal procedure of that

State.

2. The provisions of the preceding paragraph shall not

prevent the reopening of the case in accordance with the law and

penal procedure of the State concerned, if there is evidence of new

or newly discovered facts, or if there has been a fundamental defect

in the previous proceedings, which could affect the outcome of the

case.

3. No derogation from this Article shall be made under

Article 15 of the Convention.

Article 5 - Equality between spouses

Spouses shall enjoy equality of rights and responsibilities

of a private law character between them, and in their relations with

their children, as to marriage, during marriage and in the event of

its dissolution. This Article shall not prevent States from taking

such measures as are necessary in the interests of the children.

In this Act, unless the context otherwise requires -

"Convention" means the Convention for the Protection of Human

Rights and Fundamental Freedoms signed in Rome on the 4th

November, 1950 and the First, Second, Third, Fourth, Fifth, Sixth

and Seventh Protocols thereto signed in Paris on the 20th March

1952, and in Strasbourg on the 6th May 1963, 6th May 1963, 16th

September 1963, 20th January 1966, 18th April 1983 and 22nd

November 1984, respectively;

"Human Rights and Fundamental Freedoms" means those rights

and freedoms as set out in articles 2 to 18 (inclusive) of the

Convention and articles 1 to 3 (inclusive) of the First Protocol,

articles 1 to 4 (inclusive) of the Fourth Protocol, articles 1 and 2 of

the Sixth Protocol and articles 1 to 5 (inclusive) of the Seventh

Protocol to the Convention, which articles are reproduced in the

First Schedule to this Act;

"ordinary law" means any instrument having the force of law and

any unwritten rule of law, other than the Constitution of Malta;

"person" includes any physical person, non-governmental

organization or group of individuals.

[Article 3]

DECLARATION AND RESERVATIONS MADE BY THE

GOVERNMENT OF MALTA WHEN SIGNING THE CONVENTION

AND PROTOCOL

(12 DECEMBER 1966)

1. Declaration of interpretation

The Government of Malta declares that it interprets paragraph 2

of Article 6 of the Convention in the sense that it does not preclude

any particular law from imposing upon any person charged under

such law the burden of proving particular facts.

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2. The Government of Malta, having regard to Article 64 of

the Convention, and desiring to avoid any uncertainty as regards

the application of Article 10 of the Convention declares that the

Constitution of Malta allows such restrictions to be imposed upon

public officers in regard to their freedom of expression as are

reasonably justifiable in a democratic society. The code of conduct

of public officers in Malta precludes them from taking an active

part in political discussions or other political activity during

working hours or on official premises.

3. The Government of Malta, having regard to Article 64 of

the Convention, declares that the principle of lawful defence

admitted under sub-paragraph (a) of paragraph (2) of Article 2 of

the Convention shall apply in Malta also to the defence of property

to the extent required by the provisions of paragraphs (a) and (b) of

article 224 * of the Criminal Code of Malta, the text whereof, along

with the text of the preceding article 223 * , is as follows

“*223. No offence is committed when a homicide or a bodily

harm is ordered or permitted by law or by a lawful authority, or is

imposed by actual necessity either in lawful self defence or in the

lawful defence of another person.

*224. Cases of actual necessity of lawful defence shall include

the following

(a) where the homicide or bodily harm is committed in the

act of repelling, during the night-time the scaling or

breaking of enclosures, walls, or the entrance doors of

any house or inhabited apartment, or of the

appurtenances thereof having a direct or an indirect

communication with such house or apartment;

(b) where the homicide or bodily harm is committed in the

act of defence against any person committing theft or

plunder, with violence, or attempting to commit such

theft or plunder;

(c) where the homicide or bodily harm is imposed by the

actual necessity of the defence of one’s own chastity or

of the chastity of another person.”

4. The Government of Malta, having regard to Article 64 of

the Convention, declares that the principle affirmed in the second

sentence of Article 2 of the Protocol is accepted by Malta only in so

far as it is compatible with the provision of efficient instruction and

training, and the avoidance of unreasonable public expenditure,

having regard to the fact that the population of Malta is

overwhelmingly Roman Catholic.

*The relevant articles 223 and 224 of the Criminal Code (Cap. 9) originally referred

to in the text as articles 237 and 238 respectively, have been renumbered by virtue of

the Statute Law Revision Act, 1980.

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(1) The Human Rights and Fundamental Freedoms shall

be, and be enforceable as, part of the Law of Malta.

(2) Where any ordinary law is inconsistent with the Human

Rights and Fundamental Freedoms, the said Human Rights and

Fundamental Freedoms shall prevail, and such ordinary law, shall,

to the extent of the inconsistency, be void.

(3) The Human Rights and Fundamental Freedoms shall be

enforceable subject to the Declaration and Reservations made by

the Government of Malta on the signing of the Convention on the

12th day of December, 1966, which Declaration and Reservations

are reproduced in the Second Schedule to this Act.

(4) The Constitutional Court shall in addition to the

jurisdiction conferred on it by article 95 of the Constitution, have

jurisdiction to hear and determine all appeals under this Act and

exercise all such powers as are conferred on it by this Act.

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(Article 4A)

Paragraphs 22 to 25 of the Explanatory Report to the Seventh

Protocol to the Convention

(1) Any person who alleges that any of the Human Rights

and Fundamental Freedoms, has been, is being or is likely to be

contravened in relation to him, or such other person as the Civil

Court, First Hall, in Malta may appoint at the instance of any

person who so alleges, may, without prejudice to any other action

with respect to the same matter that is lawfully available, apply to

the Civil Court, First Hall, for redress.

(2) The Civil Court, First Hall, shall have original jurisdiction

to hear and determine any application made by any person in

pursuance of subarticle (1), and may make such orders, issue such

writs and give such directions as it may consider appropriate for the

purpose of enforcing, or securing the enforcement, of the Human

Rights and Fundamental Freedoms to the enjoyment of which the

person concerned is entitled

Provided that the court may, if it considers it desirable so to

do, decline to exercise its powers under this subarticle in any case

where it is satisfied that adequate means of redress for the

contravention alleged are or have been available to the person

concerned under any other ordinary law.

(3) If any proceedings in any court other than the Civil Court,

First Hall, or the Constitutional Court any question arises as to the

contravention of any of the Human Rights and Fundamental

Freedoms, that court shall refer the question to the Civil Court,

First Hall, unless in its opinion the raising of the question is merely

frivolous or vexatious; and that court shall give its decision on any

question referred to it under this subarticle and, subject to the

provisions of subarticle (4), the court in which the question arose

shall dispose of the question in accordance with that decision.

(4) Any party to proceedings brought in the Civil Court, First

Hall, in pursuance of this article shall have a right of appeal to the

Constitutional Court.

(5) No appeal shall lie from any determination under this

article that any application or the raising of any question is merely

frivolous or vexatious.

(6) The Rules of Court made in accordance with article 46(7)

of the Constitution as in force from time to time shall apply mutatis

mutandis to the practice and procedure of the courts for the purpose

of this article as if the proceedings made under this article were

proceedings made under article 46 of the Constitution.

(7) Where it is alleged that any of the Human Rights and

Fundamental Freedoms and any of the provisions of articles 33 to

45 (inclusive) of the Constitution has been, is being or is likely to

be contravened, the demand for redress or the reference to the Civil

Court, First Hall, in accordance with article 46 of the Constitution

and this article may be made in the same application or reference.

(8) Where an application for redress or any reference to the

Civil Court, First Hall, made after the 30th April, 1987 is made

exclusively either under article 46 of the Constitution or under this

article and is still pending before the Civil Court, First Hall, or the

Constitutional Court, the court may examine whether or not the

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facts complained of are in violation of the corresponding Human

Rights and Fundamental Freedoms, in the first case, or of the

corresponding Fundamental Rights and Freedoms of the Individual

enforceable under the Constitution, in the second case; and if the

court so finds it may order accordingly the redress it may deem

appropriate under any of the aforesaid laws.

(1) The provisions of paragraphs 22 to 25 (inclusive) of

the Explanatory Report on the Seventh Protocol to the Convention

reproduced in the Third Schedule to this Act shall apply to the

interpretation of the provisions of the following provisions of this

article and of article 3 of the Seventh Protocol to the Convention.

(2) The maximum compensation payable under article 3 of the

Seventh Protocol to the Convention shall be twenty-three thousand

and two hundred and ninety-three euro and seventy-three cents

(23,293.73). Such compensation shall be fixed by agreement

between the party claiming such compensation or failing such

agreement by the Civil Court, First Hall, upon an application by the

person claiming compensation made within six months of the date

when the person’s conviction has been reversed or such person has

been pardoned.

(3) An appeal from the determination of the compensation by

the Civil Court, First Hall, shall lie to the Court of Appeal by

application filed within twenty days from the determination of the

application by the Civil Court, First Hall.

No person shall be hindered in the exercise of his right to

petition the Secretary-General of the Council of Europe in

accordance with the provisions of Article 25 of the Convention and

of all the Articles of the said Convention related thereto.

(1) Any judgment of the European Court of Human Rights

to which a declaration made by the Government of Malta in

accordance with Article 46 of the Convention applies, may be

enforced by the Constitutional Court in Malta, in the same manner

as judgments delivered by that court and enforceable by it, upon an

application filed in the Constitutional Court and served on the

Attorney General containing a demand that the enforcement of such

judgment be ordered.

(2) Before adjudging upon any such demand the Constitutional

Court shall examine if the judgment of the European Court of

Human Rights sought to be enforced, is one to which a declaration

as is referred to in subarticle (1) applies.

(3) The Constitutional Court shall order the enforcement of a

judgment referred to in this article if it finds that such judgment is

one to which a declaration referred to in subarticle (2) applies.

Where by a final judgment in a case against Malta the

European Court of Human Rights finds that any instrument having

the force of law in Malta or any provision thereof is inconsistent

with the Human Rights and Fundamental Freedoms, the Prime

Minister may, within the period of six months from the date that the

judgment becomes final and to the extent necessary in his opinion

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to remove the inconsistency, make regulations deleting any such

instrument or provision found to be inconsistent as aforesaid.

No contravention of articles 2 to 18 (inclusive) of the

Convention or of articles 1 to 3 (inclusive) of the First Protocol

committed before the 30th April 1987 or of articles 1 to 4

(inclusive) of the Fourth Protocol, articles 1 and 2 of the Sixth

Protocol or of articles 1 to 5 (inlcusive) of the Seventh Protocol

committed before the 1st April 2002, shall give rise to an action

under article 4.

This article provides that compensation shall be paid to a

victim of a miscarriage of justice, on certain conditions.

First, the person concerned has to have been convicted of a

c r i m i n a l o ff e n c e b y a f i n a l d e c i s i o n a n d t o h a v e s u ff e r e d

punishment as a result of such conviction. According to the

definition contained in the Explanatory Report of the European

Convention on the International Validity of Criminal Judgements, a

decision is final "if, according to the traditional expression, it has

acquired the force of res judicata. This is the case when it is

irrevocable, that is to say when no further ordinary remedies are

available or when the parties have exhausted such remedies or have

permitted the time-limit to expire without availing themselves of

them" * . It follows therefore that a judgement by default is not

considered as final as long as the domestic law allows the

proceedings to be taken up again. Likewise, this article does not

apply in cases where the charge is dismissed or the accused person

is acquitted either by the court of first instance or, on appeal, by a

higher tribunal. If, however, in one of the States in which such a

possibility is provided for † the person has been granted leave to

appeal after the normal time of appealing has expired, and his

conviction is then reversed on appeal, then subject to the other

conditions of the article, in particular the conditions described in

paragraph 24 below, the article may apply.

Secondly, the article applies only where the person’s

conviction has been reversed or he has been pardoned, in either

case on the ground that a new or newly discovered fact shows

conclusively that there has been a miscarriage of justice - that is,

some serious failure in the judicial process involving grave

prejudice to the convicted person. Therefore, there is no

requirement under the article to pay compensation if the conviction

has been reversed or a pardon has been granted on some other

ground. Nor does the article seek to lay down any rules as to the

nature of the procedure to be applied to establish a miscarriage of

justice. This is a matter for the domestic law or practice of the state

concerned. The words "or he has been pardoned" have been

included because under some systems of law pardon, rather than

legal proceedings leading to the reversal of a conviction, may in

certain cases be the appropriate remedy after there has been a final

decision.

Finally, there is no right to compensation under this

*Commentary on Article 1a: Explanatory Report of the European Convention on the

International Validity of Criminal Judgements, publication of the Council of Europe,

1970, p.22.

†See paragraph 19 of the same Explanatory Report which reads as follows

"19. In some states, a person wishing to appeal to a higher tribunal must in certain

cases apply for leave to appeal. The right to apply to a tribunal or an administrative

authority for leave to appeal is itself to be regarded as a form of review within the

meaning of this article".

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provision if it can be shown that the non-disclosure of the unknown

fact in time was wholly or partly attributable to the person

convicted.

In all cases in which these preconditions are satisfied,

compensation is payable "according to the law or the practice of the

state concerned." This does not mean that no compensation is

payable if the law or practice makes no provision for such

compensation. It means that the law or practice of the state should

provide for the payment of compensation in all cases to which the

article applies. The intention is that states would be obliged to

compensate persons only in clear cases of miscarriage of justice, in

the sense that there would be acknowledgement that the person

concerned was clearly innocent. The article is not intended to give

a right of compensation where all the preconditions are not

satisfied, for example, where an appellate, court has quashed a

conviction because it had discovered some fact which introduced a

reasonable doubt as to the guilt of the accused and which had been

overlooked by the trial judge.