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. 1

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,

Article 64of the Convention, declares that the principle of lawful defence admitted under sub-paragraph (a) of paragraph

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,

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,

1. EUROPEAN CONVENTION THIRD SCHEDULE (Article 4A) Paragraphs 22 to 25 of the Explanatory Report to the Seventh Protocol to the Convention
2. 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.
3. 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.
4. 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.
5. †See paragraph 19 of the same Explanatory Report which reads as follows: "
6. 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". Added by: XXI. 2002.
7. EUROPEAN CONVENTION 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.
8. 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.