   EUROPEAN CONVENTION _g CAP. 319.        1
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 Act XXI of 2002.
Short title.
Interpretation.
Amended by:
XXI. 2002.2.
2. 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.
Enforcement of 
Convention.
3. (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.
  2      CAP. 319. _h                 EUROPEAN CONVENTION
Procedure for 
enforcement of 
Human Rights and 
Fundamental 
Freedoms.
4. (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
   EUROPEAN CONVENTION _g CAP. 319.        3
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.
Special rules 
applicable in 
connection with 
article 3 of the 
Seventh Protocol 
to the Convention.
Added by:
XXI. 2002.3.
4A. (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 ten thousand liri. 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.
Right of individual 
petition.
5. 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.
Enforcement of the 
decisions of the 
European Court of 
Human Rights.
6. (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.
Transitory 
provision.
Substituted by:
XXI. 2002.4.
7. 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.
  4      CAP. 319. _h                 EUROPEAN CONVENTION
Amended by:
XXI. 2002.5.
FIRST SCHEDULE
_gArticle 2_h
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
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:
   EUROPEAN CONVENTION _g CAP. 319.        5
( 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
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
impartial tribunal established by law. Judgment shall be
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
  6      CAP. 319. _h                 EUROPEAN CONVENTION
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
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.
   EUROPEAN CONVENTION _g CAP. 319.        7
(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
exercise of this right.
ARTICLE 13
Everyone whose rights and freedoms as set forth in this
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
  8      CAP. 319. _h                 EUROPEAN CONVENTION
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.
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.
   EUROPEAN CONVENTION _g CAP. 319.        9
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.
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
  10      CAP. 319. _h                 EUROPEAN CONVENTION
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
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.
   EUROPEAN CONVENTION _g CAP. 319.        11
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.
SECOND SCHEDULE 
_gArticle 3_h
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.
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.
  12      CAP. 319. _h                 EUROPEAN CONVENTION
Cap. 9.
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.
Added by:
XXI. 2002.6.
THIRD SCHEDULE
(Article 4A)
Paragraphs 22 to 25 of the Explanatory Report to the Seventh 
Protocol to the Convention
22. 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
criminal offence by a final decision and to have suffered
punishment as a result of such conviction. According to the
*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.
   EUROPEAN CONVENTION _g CAP. 319.        13
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.
23. 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.
24. Finally, there is no right to compensation under this
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.
25. 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
*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".
  14      CAP. 319. _h                 EUROPEAN CONVENTION
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.
