Grace Gatt v. Malta (Application no. 46466/16)

A selection of key paragraphs can be found below the judgment. 

81. The Court observes that, in the present case the CoP [Commissioner of Police] decided which charges should be brought against the applicant and issued such charges. In accordance with the applicable law, he also decided who would sit on the Board [Internal Board of the Police] to determine those charges and as a matter of fact he convened the Board and appointed its individual members. The Court has not been informed as to whether, as part of his functions, he undertook the “prosecution” himself, or whether he assigned a police officer to take charge of the proceedings, which is the most likely scenario. In any event, as transpires from Regulations 22 and 24 to 26 of the Disciplinary Regulations (see paragraph 47 above) which provide that the CoP, as Head of Department, was to be regularly informed of relevant findings, the Court considers that the CoP was central to the applicant’s prosecution and closely linked to the prosecuting authorities.

82. The question therefore arises whether the members of the Board were sufficiently independent of the CoP and whether the organisation of the disciplinary proceedings offered adequate guarantees of impartiality.

83. In this respect the Court notes that while the appointments were in line with the law, the result was that all the members of the Board, appointed by the CoP, were subordinate in rank to him. All of them were directly or ultimately under his command. Moreover, they were appointed on a purely ad hoc basis which made the need for the presence of safeguards against outside pressures all the more important.

84. The Government relied on the possibility of the applicant to make submissions, which the Court considers is the most minimum of rights in such cases and is certainly not a relevant safeguard, as well as the fact that the Board has to take an oath with regard to the proper exercise of its functions. While it has not been specified whether an oath was actually taken by the members of the Board in the present case – the Government having limited their observation to a general statement in abstracto – the Court considers that even if it were so, such a safeguard was insufficient to exclude the risk of outside pressure being brought to bear on the police officers who sat on the applicant’s case. In particular, it appears that those officers had no specific legal training – indeed it transpires from the minutes of the hearing that the legal issues raised by the applicant and her representative had been sent to a lawyer, and the Board’s decision to dismiss those legal arguments was solely based on the lawyer’s views (see paragraph 17 above). Those police officers, despite their grade (in particular in relation to the Assistant CoP), remained subject to police discipline and punishment by the CoP for minor disciplinary breaches, as well as appraisal from their Head of Department, namely the CoP.

90. Given the limited submissions made by the parties in the present case, the Court will not delve into other possible relevant matters of its own motion. The foregoing considerations are sufficient to enable the Court to conclude that in the disciplinary proceedings against the applicant she did not benefit of an independent and impartial tribunal.