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FOURTH
SECTION
CASE OF STEPHENS v. MALTA (no. 2)
(Application
no. 33740/06)
JUDGMENT
STRASBOURG
21 April
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Stephens v. Malta
(no. 2),
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 31 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33740/06) against the Republic
of Malta lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a British national, Mr Mark Charles Kenneth
Stephens (“the applicant”), on 9 August 2006.
- The
applicant was represented by Dr J. Brincat, a lawyer practising in
Malta. The Maltese Government (“the Government”) were
represented by their Agent, Dr S. Camilleri, Attorney General.
- The
Government of the United Kingdom, who had been notified by the
Registrar of their right to intervene in the proceedings (Article 48
(b) of the Convention and Rule 33 § 3 (b)), did not indicate
that they intended to do so.
- Invoking
Article 5 §§ 3 and 4 of the Convention the applicant
alleged that the domestic courts failed to address the issues raised
by the defence about the lawfulness of his arrest and had imposed on
him the burden of proving that his arrest had not been lawful.
Moreover, the Constitutional Court had failed to provide him with a
speedy and efficient remedy.
- On
1 June 2007 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and is currently serving a prison sentence
in Malta.
A. The background of the case
- On
30 November 2004, pursuant to an arrest warrant issued by the Maltese
authorities on 23 November 2004, the applicant was arrested and
detained in Spain on suspicion of having conspired in the traffic of
cocaine, ecstasy and cannabis.
- On
3 May 2005 the applicant, through his legal counsel, challenged the
lawfulness of his arrest and detention in so far as the arrest
warrant had not been issued in accordance with the European Arrest
Warrant requirements (in force on 7 June 2004).
- In
a judgment of 16 August 2005, the Constitutional Court of Malta
rejected the applicant's claim as the extradition request had been
made prior to the new arrest warrant procedure with the result that
the previous law applied.
- On
9 September 2005 the applicant was extradited to Malta to stand trial
on charges of drug trafficking.
B. The proceedings before the Court of Magistrates
- On
10 September 2005 the applicant was brought before the Court of
Magistrates as a Court of Criminal Inquiry. He challenged the
legality of the arrest warrant of 23 November 2004. He claimed that
the prosecution had to satisfy the Court of Magistrates that the
arrest had been lawful and that this could not be assumed, given in
particular that the accused had not been personally heard. The
applicant argued that the procedure followed by the prosecution,
whereby it simply confirmed on oath the report containing the legal
provisions on which the charges were based, did not satisfy the
requirements of Article 5 § 3 of the Convention. He made
reference in this connection to the European Court's judgment in
Kadem v. Malta, (no. 55263/00, 9 January 2003).
- The
applicant pleaded not guilty. He also pointed out that he was
contesting the Maltese courts' jurisdiction to try him, claiming that
the facts he was accused of did not constitute an offence under the
laws of Malta.
- The
prosecution submitted that the applicant had been brought to Malta
following the issue of an arrest warrant by the duty magistrate. Upon
the applicant's arrival and within six hours of the arrest, the duty
magistrate was informed of the arrest and confirmed its continuation.
Within fifteen hours of the arrest, during which time he was
interrogated, the applicant was arraigned before the court. The
prosecution further submitted that the case which carried a maximum
punishment of life imprisonment was based on the testimony of various
civilian witnesses and corroborating evidence.
- At
the hearing the Court of Magistrates took account of the applicant's
not-guilty plea. The hearing minutes read as follows:
“In regard to whether the accused is going to
plead guilty or not guilty as charged the same accused would like to
point out that first of all he is contesting the jurisdiction of the
Maltese courts to try him and secondly that the facts do not
constitute, in his regard, an offence under the laws of Malta and
thirdly that he is not guilty of any fact alleged against him. To all
intents and purposes of law, the Court [of Magistrates], having heard
what has just been put down in the records of the proceedings, is
considering the accused as pleading not guilty as charged.”
The
Court of Magistrates did not require the arresting officer to justify
why the applicant had been arrested or why his detention was
necessary. It declared, without entering a minute to that effect in
the records, that the warrant had been issued by a magistrate and
confirmed by another magistrate and both sets of proceedings had been
held in camera and the arrest had been authorised. Moreover,
the case had been examined by the Spanish courts in the context of
their consideration of Malta's request for the applicant's
extradition. In the minutes it further referred to the fact that the
validity of the warrant as regards its procedural aspects was
affirmed by the Constitutional Court in a further set of proceedings
which took place while the applicant was still in Spain. Thus, the
warrant was sufficient to enable the arrest to be considered lawful
at that stage of the proceedings. Nothing had been brought to the
attention of the court which enabled it to say that the person
charged was under arrest without justification.
- Since
the applicant insisted that his arrest was unlawful and unjustified
no request for bail was made and he was remanded in custody. His case
file was transmitted to another magistrate sitting in the Court of
Magistrates in order to proceed with the committal stage.
- In
the meantime, on 19 September 2005, the applicant applied for bail.
- On
27 September 2005 the Court of Magistrates in the committal stage
heard the parties. The applicant advanced once again his argument
that the Maltese authorities lacked jurisdiction to try him.
- On
29 September 2005 the Court of Magistrates rejected the application
for bail, which had been lodged on 19 September 2005, on the grounds
that there was a real danger that the applicant might abscond, leave
the island or interfere or attempt to interfere with witnesses. It
further held that it was not competent to give a ruling on the
question of jurisdiction and decided that there were enough grounds
to commit the applicant for trial.
C. The applicant's constitutional claim
- On
3 October 2005 the applicant applied to the Civil Court (First Hall)
in its constitutional jurisdiction, alleging that both at his first
hearing and at the committal stage, Article 5 §§ 3 and 4 of
the Convention had been violated. The Court of Magistrates had failed
to assess the lawfulness of the arrest by refusing to decide on the
defence's objections, namely that the Maltese courts did not have
jurisdiction to try the defendant and that the facts alleged against
him did not constitute a criminal offence under Maltese law. The
applicant therefore requested the Civil Court to declare that his
arrest and continued detention were unlawful and to order his release
and provide him with adequate redress.
- In
a judgment of 12 January 2006, the Civil Court rejected the
applicant's claim. It held that the Court of Magistrates as a Court
of Criminal Inquiry was bound to examine solely the lawfulness of the
arrest and, if necessary, to order release on bail according to
Article 412B of the Criminal Code (see paragraph 41 below). The
question of jurisdiction related to the merits of the case and
therefore could be examined only by the Criminal Court. This was not
in violation of the Convention.
- The
applicant appealed to the Constitutional Court. He reiterated his
claims and emphasised that Article 412B of the Criminal Code was not
an effective remedy as it provided only for provisional release under
guarantee or against payment of bail and not unconditional release as
required by Article 5 § 4 of the Convention.
- The
Constitutional Court heard submissions on 7 and 9 February 2006.
- In a judgment of 14 February 2006, the Constitutional
Court upheld the applicant's appeal in part. It first held that at
the hearing of 10 September 2005 the Court of Magistrates had
satisfied its duty under Article 5 §§ 3 and 4 of the
Convention as provided by Article 574A of the Criminal Code (see
paragraph 40, in fine, below). In particular, it had heard the
parties' submissions regarding the lawfulness of the arrest and it
had not been satisfied that the arrest was unlawful. Moreover, the
plea of jurisdiction had not been dealt with because of the
particular circumstances of the case, the way in which the matter had
been raised (seemingly only for purposes of record) and because it
would have substantially amounted to a plea that the facts of the
case did not constitute a crime. Thus, further evidence would have
been necessary in order to decide the matter.
- The
Constitutional Court did, however, find a violation of Article 5 § 4
of the Convention in so far as on 29 September 2005 the Court of
Magistrates at the committal stage (Article 401 (2) of the CC) had
abstained from deciding the issue of jurisdiction, thus disregarding
its duty to determine the lawfulness of the applicant's detention
under the Convention. Even though questions of jurisdiction would, in
principle, be dealt with by the Criminal Court, in the applicant's
case this issue was interconnected with the factual requirements of
the criminal offence. In the absence of solid factual grounds against
the defendant, the Court of Magistrates could not commit him for
trial. The Constitutional Court annulled the Court of Magistrates'
order of 29 September 2005 committing the applicant for trial as
well as all subsequent acts. It remitted the case to the Court of
Magistrates to be decided afresh after taking cognisance of the
applicant's plea of lack of jurisdiction. It awarded the applicant
400 Maltese Liras (MTL – approximately 960 euros (EUR)) for
just satisfaction, and ordered the payment of the costs of the
proceedings to be divided between the parties.
D. Other attempts by the applicant to obtain release pending
these proceedings
- On
2 December 2005 the applicant applied for bail before the Criminal
Court, the competent court at the time. On the same date the Attorney
General sent the records of the proceedings back to the Court of
Magistrates. Thus, on 6 December 2005 the Criminal Court refused to
take cognisance of the request as it no longer had jurisdiction in
the matter.
- On
9 December 2005 the same application was filed with the Court of
Magistrates.
- On
14 December 2005 the Court of Magistrates refused to release the
applicant, having regard to the nature and seriousness of the
offence, the real danger of the accused absconding or leaving the
island and obstructing or attempting to obstruct the course of
justice.
E. The proceedings following the Constitutional Court's judgment
- On
14 February 2006 the President of Malta issued a warrant extending
the legal time-limit for concluding the proceedings to 6 March 2006.
- On 15 February 2006 the applicant, still under arrest,
was brought before the Court of Magistrates. He alleged that the law
imposed a peremptory time-limit of twenty days for the conclusion of
the committal proceedings. In the applicant's view, this time-limit
could not be extended by the Constitutional Court, as had occurred in
his case. Furthermore, the applicant challenged the magistrate
sitting in his case on the ground that she had already sat in the
hearings preceding the constitutional proceedings. He invoked the
principles laid down by the Court in Ferrantelli and
Santangelo v. Italy (see
judgment of 7 August 1996, Reports of Judgments and Decisions
1996-III). He also raised once again his plea based on the
Maltese authorities' lack of jurisdiction to try him.
- On
23 February 2006 the Court of Magistrates considered that the twenty
day time-limit had not been exceeded since the Constitutional Court
had placed the applicant in a status quo ante. Moreover, the
warrant of the President of Malta extending the term of the inquiry
had been valid according to law. It rejected the challenge to the
magistrate on the ground that that court had refrained from giving a
definitive judgment on the merits of the case, thus satisfying the
objective impartiality test. The Court of Magistrates further stated
that the interpretation of Article 22(1) (f) of the Dangerous Drugs
Ordinance extended the principle of territorial jurisdiction and that
it therefore had jurisdiction to proceed against the applicant. It
decided to commit the applicant for trial.
- On
27 February 2006 the applicant filed an application with the Criminal
Court, the competent court at the material time, to challenge the
lawfulness of his detention according to Article 412 B of the
Criminal Code. He requested it to order his release from custody. He
also complained that the committing magistrate, who delivered the
decision of 29 September 2005, had erred when she refrained from
stepping down once she had been challenged.
- On
3 March 2006 the Criminal Court dismissed the application as being
unfounded for the purposes of Article 412 B. It held that even if the
magistrate had erred, this did not render the detention unlawful.
Moreover, the proceedings leading to the decision of 23 February 2006
appeared to have been properly initiated and conducted, as indicated
by the Constitutional Court's judgment of 14 February 2006, which
upheld only the applicant's complaint about the irregularity related
to the refusal to consider the plea of jurisdiction.
- On
13 March 2006 the applicant filed a new application with the Court of
Magistrates, claiming that the Attorney General had exceeded the
time-limit allowed for filing the bill of indictment. On an
unspecified date the Magistrates' Court rejected the claim.
- On
an unspecified date the Attorney General filed the bill of
indictment. As a consequence, the Criminal Court became competent to
take cognisance of any application for release.
- On
4 April 2006 the applicant applied for bail, making reference to
Labita v. Italy ([GC], no. 26772/95, ECHR 2000-IV).
- On
7 April 2006 the applicant was granted bail against payment of a
deposit of MTL 12,000 (approximately EUR 28,800). He was put under
house arrest at his mother's home. He was only allowed to go out for
two hours in the morning to report to the police station.
- On
2 December 2006, the Criminal Court had started examining the plea of
lack of jurisdiction. The applicant was still under house arrest.
- On
an unspecified date the applicant made another request for his
detention arrangements to be alleviated. On 5 February 2007 the
Criminal Court rejected his request, emphasising that it could not be
said that the applicant was under arrest but was simply confined and
limited in the hours during which he could leave his house as a
condition of his being granted provisional liberty.
- By
a judgment of the Criminal Court of 18 July 2007, confirmed by the
Criminal Court of Appeal on 18 January 2008, the applicant was found
guilty of the charges against him and sentenced to a term of
imprisonment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- According
to recent amendments to the Criminal Code adopted in 2002, a police
inspector may no longer arrest a suspect under his own authority but
has to apply to a magistrates' chamber for an arrest warrant.
Article 355V
“Where there are lawful grounds for the arrest of
a person, the police may request a warrant of arrest from a
magistrate, unless in accordance with any provision of law the arrest
in question may be made without a warrant.”
- Following
amendments adopted in 2002 and 2006, the Articles of the Criminal
Code, in so far as relevant, read as follows:
Article 401 (2)
“(2) On the conclusion of the inquiry, the court
shall decide whether there are or not sufficient grounds for
committing the accused for trial on indictment.”
Article 409A
“(1) Any person who alleges he is being unlawfully
detained under the authority of the police or of any other public
authority not in connection with any offence with which he is charged
or accused before a court may at any time apply to the Court of
Magistrates, which shall have the same powers which that court has as
a court of criminal inquiry, demanding his release from custody. Any
such application shall be appointed for hearing with urgency and the
application together with the date of the hearing shall be served on
the same day of the application on the applicant and on the
Commissioner of Police or on the public authority under whose
authority the applicant is allegedly being unlawfully detained. The
Commissioner of Police or public authority, as the case may be, may
file a reply by not later than the day of the hearing.
(2) On the day appointed for the hearing of the
application the court shall summarily hear the applicant and the
respondents and any relevant evidence produced by them in support of
their submissions and on the reasons and circumstances militating in
favour of or against the lawfulness of the continued detention of the
applicant.
(3) If, having heard the evidence produced and the
submissions made by the applicant and respondents, the court finds
that the continued detention of the applicant is not founded on any
provision of this Code or of any other law which authorises the
arrest and detention of the applicant it shall allow the application.
Otherwise the court shall refuse the application.
(4) Where the court decides to allow the application the
record of the proceedings including a copy of the court's decision
shall be transmitted to the Attorney General by not later than the
next working day and the Attorney General may, within two working
days from the receipt of the record and if he is of the opinion that
the arrest and continued detention of the person released from
custody was founded on any provision of this Code or of any other
law, apply to the Criminal Court to obtain the re-arrest and
continued detention of the person so released from custody. The
record of the proceedings and the court's decision transmitted to the
Attorney General under the provisions of this sub-article shall be
filed together with the application by the Attorney General to the
Criminal Court.”
Article 412B
“(1) Any person in custody for an offence of which
he is charged or accused before the Court of Magistrates and who, at
any stage other than that to which Article 574A applies, alleges that
his continued detention is not in accordance with the law may at any
time apply to the court demanding his release from custody. Any such
application shall be appointed for hearing with urgency and together
with the date of the hearing shall be served on the same day of the
application on the Commissioner of Police or, as the case may be, on
the Commissioner of Police and the Attorney General, who may file a
reply thereto by not later than the day of the hearing.
(2) The provisions of Article 574A(2) and (3) shall
apply mutatis mutandis to an application under this article.
(3) Where the application is filed in connection with
proceedings pending before the Court of Magistrates as a court of
criminal inquiry before a bill of indictment has been filed and the
record of the inquiry is with the Attorney General in connection with
any act of the proceedings, the application shall be filed in the
Criminal Court and the aforegoing provisions of this Article shall
apply mutatis mutandis thereto.”
(4) The provisions of Article 409A(4) shall apply to a
decision of the Court of Magistrates under this Article.”
Article 574A
“(1) When the person charged or accused who is in
custody is first brought before the Court of Magistrates, whether as
a court of criminal judicature or as a court of criminal inquiry, the
Court shall have the charges read out to the person charged or
accused and, after examining the person charged as provided in
Article 392 as the proceedings may require, shall summarily hear the
prosecuting or arraigning officer and any evidence produced by that
officer on the reasons supporting the charges and on the reasons and
circumstances, if any, militating against the release of the person
charged or accused.
(2) After hearing the prosecuting or arraigning police
officer and any evidence produced as provided in sub-article (1) the
court shall inform the person charged or accused that he may be
temporarily released from custody on bail by the court under
conditions to be determined by it and shall ask him what he has to
say with respect to his arrest and his continued detention and with
respect to the reasons and the circumstances militating in favour of
his release.
(3) Where any of the offences charged consists in any of
the offences mentioned in Article 575(2) the court shall, after
hearing the person charged or accused as provided in sub-article (2)
of this article, ask the prosecuting or arraigning officer whether he
has any submissions to make on the question of temporary release from
custody on bail of the person charged or accused and the latter shall
be allowed to respond.
(5) At the end of submissions as provided in the
preceding sub-articles of this Article the court shall review the
circumstances militating for or against detention.
(6) If the court finds that the continued detention of
the person charged or accused is not founded on any provision of this
Code or of any other law which authorises the arrest and detention of
the person in custody it shall unconditionally release that person
from custody.
(7) If the court does not find cause to release
unconditionally the person charged or accused ... it may nevertheless
... release that person from custody on bail subject to such
conditions as it may deem appropriate.
(8) If the court does not find cause to release
unconditionally the person charged or accused and refuses to grant
that person bail the court shall remand that person into custody ...”
- The
European Convention Act, in so far as relevant, reads as follows:
Article 3
“(4) The Constitutional Court shall ... have
jurisdiction to hear and determine all appeals under this Act and
exercise all such powers as are conferred on it by this Act.”
Article 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 sub-article (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
sub-article 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.
...
(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.”
Consequently,
a complaint must be lodged with both instances before it is
introduced with the Strasbourg Court. However, in Sabeur Ben Ali
v. Malta, (no. 35892/97, 29 June 2000, § 40) and Kadem
v. Malta, (cited above, § 53), the Court held that this
procedure was rather cumbersome and therefore lodging a
constitutional application would not have ensured a speedy review of
the lawfulness of the applicant's detention. Consequently in the
cited cases the applicants had not had at their disposal, under
domestic law, a remedy for challenging the lawfulness of their
detention under Article 5 § 4.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the Court of Magistrates sitting as a Court
of Criminal Inquiry had failed to address the issues raised by the
defence about the lawfulness of his arrest and that it had imposed on
him the burden of proving that his arrest had not been lawful,
contrary to the requirements of Article 5 § 3 of the Convention,
which reads as follows:
“ 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.”
- The
Government contested that argument.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant complained that the Court of Magistrates sitting as a Court
of Criminal Inquiry had failed to address the issues raised by the
defence about the lawfulness of his arrest. Moreover, it had not
required the arresting authority to justify the arrest, but had
imposed on the accused the burden of proving that his arrest had not
been lawful. Indeed, the Court of Magistrates was satisfied by the
fact alone that a warrant had been issued by a magistrate and
confirmed by yet another one, and before whom the applicant had never
been brought. Thus, on 10 September 2005 the applicant's remand in
custody had been ordered without a magistrate having examined the
circumstances of the case and the matters which had been raised.
- The
applicant referred to domestic case-law which showed that,
domestically, the only questions which had to be addressed by the
Court of Magistrates at the first hearing were whether the
prosecution had a reasonable suspicion, whether what was alleged was
according to Maltese law an arrestable offence and whether the person
charged had been brought promptly before such court. It followed that
the reasonable suspicion did not have to be shared by the magistrate.
The applicant noted that in the cases of Aquilina v. Malta
(see GC judgment of 29 April 1999, Reports 1999-III) and T.W.
v Malta (see GC judgment of 29 April 1999, Reports
1999-III) the Court found a violation of Article 5 § 3 of
the Convention on the ground that the Court of Magistrates had no
power to establish whether the deprivation of the individual's
liberty was justified and to order release. The Maltese law had
consequently been amended, but the practice before the Court of
Magistrates as a Court of Criminal Inquiry had remained substantially
the same, as shown by the events in his own case. Appearing before a
duty magistrate was a ritual and a mere formality. Indeed, the
applicant failed to see how such a fundamental issue as jurisdiction
could be considered as having no impact on the lawfulness of the
arrest, given that an arrest not justified by jurisdiction was
clearly unlawful. If there was no jurisdiction, then the courts
lacked competence, and if the issue of jurisdiction was postponed
then the element of promptness required by Article 5 § 3 would
be disrespected.
- According
to the applicant, the Government's argument that jurisdiction was not
a matter to be dealt with by the Court of Magistrates at this stage
of the proceedings had its parallel in domestic case-law which stated
that prescription was not a matter that could be decided by the Court
of Magistrates as a Court of Criminal Inquiry. Consequently, this was
further evidence that the Court of Magistrates did not meet the
necessary requirements of Article 5 § 3.
- The
Government submitted that the applicant had complained under Article
5 § 3 before the Court of Magistrates without giving
explanations. At the hearing of 10 September it was only after the
Court of Magistrates had decided about the lawfulness of his arrest
that he raised the issue of jurisdiction and then again in his final
submissions at the hearing of 27 September.
- The
Government submitted that according to Article 574A (1), (5) and (6)
of the CC, as soon as a person who is in custody is arraigned, the
court must examine whether the arrest is founded on a provision of
Maltese law. This was the procedure followed in the applicant's case
as evidenced by the minutes of the proceedings. According to the
Government, the Court of Magistrates had both the competence and a
legal obligation to deal with such matters. Indeed, it entered into
all the issues raised except for the question of jurisdiction, which
in fact resulted at a later stage in a finding of a breach of Article
5 § 4 by the domestic court. The Government submitted that the
examination of the lawfulness of an arrest cannot be interpreted as
requiring an objective examination of all proof and evidence in a
given case. Such an examination was limited rather to those elements
of lawfulness which can be ascertained before proceeding to the
examination of the evidence.
- The
Government further submitted that the allegation that the burden of
proof of the lawfulness of the arrest was placed on the applicant was
unfounded. The applicant's allegation was based on the expression
used by the court – “the court, having heard the parties,
and in view of the fact that nothing was brought to the notice of
this court which would enable this court to say that the person
charged was brought before it without his arrest being justified”
– and not on any real procedural defect. As transpires from the
minutes of the proceedings, the court took its decision after hearing
both parties, whose views regarding the warrant were subsidiary to
their main arguments regarding the justification of the arrest.
Moreover, the Government contested the applicant's interpretation of
domestic case-law (see paragraph 47 above) and stated that it was
clear that the existence of a reasonable suspicion had to be shared
by the magistrate too.
2. General principles
- The
Court recalls that Article 5 § 3 of the Convention
provides persons arrested or detained on suspicion of having
committed a criminal offence with a guarantee against any arbitrary
or unjustified deprivation of liberty (see Aquilina v. Malta
[GC], no. 25642/94, § 47, ECHR 1999 III). It is
structurally concerned with two separate matters: the early stages
following an arrest when an individual is taken into the power of the
authorities and the period pending eventual trial before a criminal
court during which the suspect may be detained or released with or
without conditions. These two limbs confer distinct rights and are
not on their face logically or temporally linked (see T.W. v.
Malta [GC], no. 25644/94, § 49, 29 April 1999). Thus, what
is described in the case-law as “the opening part of Article 5
§ 3” guarantees the right to be brought promptly
before a judge or “other officer”; the second part of the
provision guarantees the right to trial within a reasonable time or
release pending trial (see Assenov and Others v. Bulgaria,
judgment of 28 October 1998, Reports of Judgments and Decisions
1998 VIII, p. 3264).
- The
initial automatic review of arrest and detention must be capable of
examining lawfulness issues and whether or not there is a reasonable
suspicion that the arrested person had committed an offence, in other
words, that detention falls within the permitted exception set out in
Article 5 § 1(c). When the detention does not, or is unlawful,
the judicial officer must then have the power to release (see McKay
v. the United Kingdom [GC], no. 543/03, § 40, ECHR
2006 ...). According to the Court's case-law, the review of the
merits of the detention must be prompt and automatic (see the
above-mentioned Aquilina judgment, loc. cit.). Whereas
promptness is to be assessed in each case according to its special
features (see De Jong, Baljet and Van den Brink v.
the Netherlands, judgment of 22 May 1984, Series A no. 77,
p. 25, § 52), the significance to be attached to those
features can never be taken to the point of impairing the very
essence of the right guaranteed by Article 5 § 3, that is
to the point of effectively negativing the State's obligation to
ensure a prompt release or a prompt appearance before a judicial
authority (see Brogan and Others v. the United Kingdom,
judgment of 29 November 1988, Series A no. 145 B,
p. 32-33, § 59).
3. The Court's assessment
- The
Court notes that the complaint refers to the hearing of 10 September
2005 and therefore refers to the first limb of Article 5 § 3.
It considers that although the Maltese State satisfied the obligation
to bring him promptly and automatically before a tribunal, the
applicant's complaint relates to the quality of the review which that
tribunal provided, in particular as regards the Court of Magistrates'
failure to deal with the issue of jurisdiction at the first hearing.
- To
make the latter analysis, the Court considers that it should first
establish whether, as argued by the Government, the applicant failed
to raise the issue of lack of jurisdiction before the Court of
Magistrates.
- The
Court observes that, after having analysed the minutes of the
proceedings, the applicant invoked Article 5 § 3. Although the
specific reasons for so doing are not explained, the said minutes
state that the complaint was along the lines of, inter alia,
the extradition case Kadem v. Malta, (cited above). The Court
notes that one of the issues in the Kadem judgment (op cit. §
36) was indeed an objection concerning the lack of jurisdiction of
the Magistrates' Court. Moreover, according to the minutes (see
paragraph 14 above) the Court of Magistrates noted down the plea
relating to the court's lack of jurisdiction when recording the
applicant's reply to the charge. The applicant also explicitly
reiterated the argument at a later stage. Consequently, the Court
considers that the Court of Magistrates had understood the substance
of the complaint and it cannot be said that the Court of Magistrates
was not aware of the applicant's plea.
- The
Court must now examine whether the Court of Magistrates' review of
the lawfulness of the detention was in accordance with Article 5 § 3
and in particular whether it should have dealt with the plea of lack
of jurisdiction at this stage of the proceedings.
- The
Court observes at the outset that although the examination of
lawfulness is indeed a requirement of Article 5 § 3 of the
Convention, such examination may be more limited in scope in the
particular circumstances of a given case than under Article 5 §
4.
- As
to the present case, the Court notes that jurisdiction is not a
collateral issue since it forms the basis of any criminal
proceedings. However, in view of the complexity of the matter, the
Court considers that the Court of Magistrates cannot be reproached
for not having entered into such an intricate issue on the
applicant's first appearance. For the Court, the issue of
jurisdiction fell more appropriately to be dealt with at a later
hearing or stage of the proceedings, and during which the applicant
enjoyed the full adversarial safeguards provided for in Article 5
§ 4.
- As
far as the general review made by the Court of Magistrates as a Court
of Criminal Inquiry is concerned, it appears that following the
Aquilina and T.W. judgments (cited above), this court
now has the power to examine all the issues related to the lawfulness
of a deprivation of liberty, and must take into account the various
circumstances militating for or against detention and to order
release if there are no such reasons.
- For
the Court, and from the standpoint of Article 5 § 3
requirements, what is important is that the Court of Magistrates
examined the applicant; it heard both parties and was satisfied that
the arrest was justified. It had understandable regard in this latter
connection to the fact that the validity of the arrest warrant had
already been confirmed on multiple occasions (see paragraph 14
above). The fact that the Court of Magistrates did not go into
further details, a point which is criticised by the applicant (see
paragraph 46 above), cannot be taken to mean that it had not analysed
all the circumstances and that it had not satisfied itself that the
prosecution had made out a case for the existence of a reasonable
suspicion against the applicant (see paragraph 13 above). Therefore,
in the present case, the Court considers that the Court of
Magistrates exercised its powers in compliance with Article 5 § 3.
- There
has accordingly been no violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant complained that the first hearing (10 September 2005) he
had attended on Maltese soil had failed to address the lawfulness of
his arrest. Moreover, on 14 February 2006, by remitting the case to
the Court of Magistrates, the Constitutional Court had failed to
provide him with a speedy and efficient remedy, contrary to Article 5
§ 4 of the Convention, which reads as follows:
“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.”
- The
Court notes that the complaint relating to the hearing of 10
September 2005 has already been dealt with under Article 5 § 3
and refers to the conclusions set out above.
- In
so far as the same complaint is submitted in respect of Article 5
§ 4, the Court notes that the Constitutional Court examined
this complaint and found that at the said hearing the Court of
Magistrates had complied with Article 5 §§ 3 and 4 of
the Convention (see paragraph 23 above). The Court would observe,
however, that the Convention does not necessarily require the
application of the guarantees provided by Article 5 § 4 at an
applicant's first hearing. Whether such is required by the Convention
will depend on the particular circumstances of the case in question.
The Court recalls that in the applicant's case it has found that the
Court of Magistrates cannot be reproached for not having entered into
the matter of jurisdiction at the first hearing on 10 September 2005
(see paragraph 59 above). It follows that the complaint under Article
5 § 4, in so far as it relates to the hearing of 10
September 2005, does not require further examination.
- The
Court will therefore examine the remainder of the complaint under
Article 5 § 4, namely whether the Constitutional Court
failed to provide him with a speedy and efficient remedy.
A. Admissibility
1. Victim status
- The
Government submitted that the Constitutional Court had granted a
sufficient remedy for the applicant's complaint, by granting both a
pecuniary remedy and a remedy in kind, namely that of placing the
applicant in the status quo ante. Consequently, the applicant
could not claim to be a victim of the alleged violation.
- The
Court considers that this matter is closely related to the merits of
the complaint. Accordingly, it joins the issue to the merits.
2. The Government's objection of non-exhaustion of domestic
remedies
- In
so far as the applicant alleged that the Constitutional Court itself
had acted in violation of Article 5 § 4, the Government
submitted that this complaint had not been brought before the
domestic courts and therefore the applicant had failed to exhaust
domestic remedies.
- The
applicant accepted that, as suggested by the Government, he could
have introduced a new set of proceedings before the Civil Court and
if necessary filed an appeal with the Constitutional Court. If this
had proved ineffective, he could have restarted those proceedings.
However, this would have led to a self-perpetuating remedy ad
infinitum and not an effective remedy which could be exhausted
once and for all.
- The
Court recalls that, according to its case-law, Article 5 § 4
of the Convention refers to domestic remedies that are sufficiently
certain, otherwise the requirements of accessibility and
effectiveness are not fulfilled (see Sakik and Others v. Turkey,
26 November 1997, Reports 1997-VII, p. 2625, § 53).
It is to be recalled that the aim of Article 5 § 4 is to ensure
a “speedy” review of the lawfulness of detention (see,
for instance, Baranowski v. Poland, no. 28358/95, §
68, 28 March 2000, ECHR 2000-III).
- As
concerns the applicant's failure to pursue this claim before the two
constitutional jurisdictions, the Court notes that lodging a
constitutional application involves a referral to the First Hall of
the Civil Court and the possibility of an appeal to the
Constitutional Court. This is a cumbersome procedure especially since
practice shows that appeals to the Constitutional Court are lodged as
a matter of course and that the relevant proceedings are invariably
longer than what would qualify as “speedy” for Article 5
§ 4 purposes (see Sabeur Ben Ali, cited above, § 40
and Kadem, cited above § 53). In the present case, the
applicant did use this procedure: his claim to the Civil Court was
lodged on 3 October 2005 (see paragraph 19 above) and was still
pending on 14 February 2006, the date on which the Constitutional
Court decided to send the applicant back to the Court of Magistrates
(see paragraphs 23 and 24 above). It is precisely this procedure
which he is contesting before this Court. For the Court, the
applicant could not have been expected to recommence this process.
- The
Government's objection as to the exhaustion of domestic remedies
should therefore be rejected.
3. Conclusion
- Bearing
in mind that the issue of the applicant's lack of victim status has
been joined to the merits (see paragraph 68 above), the Court
considers that this part of the complaint raises complex issues of
fact and law which cannot be resolved at this stage in the
examination of the application, but requires examination on the
merits. Accordingly, this part of the complaint cannot be declared
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. The Court further finds that there are no other
grounds at this stage for declaring this part of the complaint
inadmissible and therefore declares it admissible.
B. Merits
1. The parties' submissions
-
The applicant submitted that in order to provide him with a speedy
and effective remedy, the Constitutional Court should have used its
preventive competence and dealt with the merits of the lawfulness of
his arrest, ordering, if need be, his release; instead, it decided to
remit the case back to the Court of Magistrates. The applicant also
complained that the amount granted as just satisfaction was
insufficient.
- The
applicant submitted that the Constitutional Court had the competence
to anticipate a violation in fieri and to provide a remedy;
consequently, it also had the power to provide an effective remedy
when establishing a factual violation. The applicant submitted that
putting him in the status quo ante should have entailed his
release. Bearing in mind that freedom is calculated ad horas
it was clear that the fact that the applicant had to wait for over
two years before being brought before a court which was competent to
decide the matter of jurisdiction could not be compatible with the
Convention. Lastly, the applicant submitted that the fact that the
question of jurisdiction might have been complex had no bearing on
the requirement of speediness announced in Article 5 § 4.
- The
Government submitted that the issue whether the Court of Criminal
Inquiry should determine questions of jurisdiction had never arisen
before the domestic courts. Upon deciding that there had been a
violation of Article 5 § 4 at that stage of the proceedings for
failure to consider the issue, the Constitutional Court granted
monetary compensation and placed the applicant in the status quo
ante, thus satisfying the requirements of Article 5 § 4. The
Constitutional Court did not share the reasoning of the applicant,
namely that a violation of Article 5 § 4 rendered his arrest and
detention unlawful and therefore he should have been released. It
therefore afforded the most appropriate remedy in the particular
circumstances of the case.
- Indeed,
the Constitutional Court did not enter into the issue of the
lawfulness of the arrest and consequently could never order release.
As a matter of practice, although the Constitutional Court is
entitled to grant a remedy which it deems appropriate, it is not
obliged to usurp the functions legally entrusted to other courts and
it will normally choose not to do so and respect the competence of
the ordinary courts. Indeed, the Government were not aware of any
instance where the Constitutional Court had taken over a case from
another court and decided it, or only part of it, itself.
-
The Government submitted that it was fair to consider that the
compensation granted to the applicant also covered the time taken up
by the referral back to the Court of Criminal Inquiry. Moreover,
after the Constitutional Court's judgment of 14 February 2006, the
issue of jurisdiction was debated before the Court of Criminal
Inquiry on the next day and decided upon on 23 February 2006.
- In
so far as the complaint refers to whether the Constitutional Court
had the power to look into the lawfulness of the arrest and order the
applicant's release, the Government relied on the very wide
discretion arising from Article 4 of the European Convention Act.
They further submitted that an appropriate remedy always depended on
an applicant's demands. In the present case the applicant's request
for the court to declare his arrest and continued detention unlawful
proceeded on the basis and as a consequence of his claim that there
had been a violation of Article 5 §§ 3- 4. The
Constitutional Court did not think that, as a consequence of the
finding of a violation, his arrest and detention were unlawful, which
is precisely why they annulled the decision committing the applicant
to stand trial and remitted the case to the first court to take
cognisance of the plea of jurisdiction. In this way the
Constitutional Court fully addressed the issue it was requested to
address by the applicant within the terms set out by him in his
application. Moreover, the applicant had not asked the Constitutional
Court to exercise its preventive competence. He did not complain that
his fundamental rights were likely to be contravened but only that
his right had been or was being contravened.
-
Finally, the Government submitted that each of the applicant's
challenges to the lawfulness of his detention was determined almost
immediately. Moreover, even considering that the lawfulness of the
pre-trial detention was only fully decided on 23 February 2006, the
requirement of speediness of Article 5 § 4 was still complied
with.
2. General principles
- The
Court reiterates that a decision or measure favourable to the
applicant is not in principle sufficient to deprive him of his status
as a “victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see, Dalban v. Romania
[GC], no. 28114/95, § 44, ECHR 1999-VI; and Jensen v. Denmark
(dec.), no. 48470/99, 20 September 2001, ECHR 2001-X). The Court
notes that the Constitutional Court found a violation of Article 5 §
4, restored the applicant to the position he was in four and a half
months before and granted him the sum of 1,000 euros. It remains to
be determined whether this was enough to deprive the applicant of his
victim status.
- The Court reiterates that the purpose of Article 5 §
4 is to assure to persons who are arrested and detained the right to
a judicial supervision of the lawfulness of the measure to which they
are thereby subjected (see De Wilde, Ooms and Versyp v. Belgium,
judgment of 18 June 1971, Series A no. 12, § 76). The remedies
must be made available during a person's detention with a view to
that person obtaining speedy judicial review of the lawfulness of the
detention capable of leading, where appropriate, to his or her
release. The accessibility of a remedy implies, inter alia,
that the circumstances voluntarily created by the authorities must be
such as to afford applicants a realistic possibility of using the
remedy (see Čonka v. Belgium, no. 51564/99, §
46 and 55, ECHR 2002-I).
- Moreover, Article 5 § 4, in guaranteeing to
persons arrested or detained a right to take proceedings to challenge
the lawfulness of their detention, also proclaims their right,
following the institution of such proceedings, to a speedy judicial
decision concerning the lawfulness of detention (see Musial v.
Poland [GC], no. 24557/94, § 43, ECHR 1999-II). The question
whether a person's right under Article 5 § 4 has been respected
has to be determined in the light of the circumstances of each case
(see Rehbock v. Slovenia, no. 29462/95, § 84, 28 November
2000). While Article 5 § 4 of the Convention does not impose an
obligation on a judge examining an appeal against detention to
address every argument contained in the appellant's submissions, its
guarantees would be deprived of their substance if the judge could
treat as irrelevant, or disregard, particular facts invoked by the
detainee which could cast doubt on the existence of the conditions
essential for the “lawfulness”, in the sense of the
Convention, of the deprivation of liberty (see Nikolova v.
Bulgaria [GC], no. 31195/96, § 91, ECHR 1999 II).
3.
The Court's assessment
- The
Court notes that the applicant first challenged the lawfulness of his
detention on 10 September 2005 and subsequently on 27 September 2005.
On 14 February 2006 the Constitutional Court failed to determine the
issue and remitted the case to the Court of Magistrates. The latter
court determined the matter of jurisdiction and consequently the
lawfulness of his detention on 23 February 2006.
- The
Court observes that on 14 February 2006 the Constitutional Court
found that there had been a violation of Article 5 § 4 in so far
as the Court of Magistrates on 29 September 2005, at the committal
stage, had abstained from deciding the issue of jurisdiction. It
remitted the case to the Court of Magistrates to be decided afresh
and awarded the applicant approximately 960 euros for just
satisfaction (see paragraph 24 above) for the breach of Article 5 §
4. The Court considers therefore that by acknowledging the said
violation and awarding compensation of 960 euros, which is comparable
to its own standards (see, for example, Petar Vasilev v. Bulgaria,
no. 62544/00, § 42, 21 December 2006, where
the Court granted 800 euros for a violation of Article 5 §
4 of the Convention, on account of the limited scope, or lack, of
judicial review of the lawfulness of detention),
the applicant can no longer be considered a victim in respect of the
period of time up to the Constitutional Court's judgment. Therefore,
the Government's preliminary objection must be accepted in part in
relation to this period of time, and rejected as to the remaining
period.
- Unlike
cases in general where the period to be taken into consideration
starts running from the date on which the applicant filed his request
to have the lawfulness of his detention reviewed, in the present case
the length of the period at issue is to be calculated from 14
February 2006, when the Constitutional Court remitted the case back
to the Court of Magistrates, to 23 February 2006, when the issue of
jurisdiction and hence the lawfulness of his detention were decided.
Therefore the period to be taken into consideration in the
applicant's case lasted ten days.
- The
Court observes that the case was listed for hearing one day after the
Constitutional Court had remitted the case. It then took the Court of
Magistrates ten days to rule on the matter of jurisdiction. No
hearings were held. The Court recalls that the matter of jurisdiction
was complex and considers that the lawfulness of the applicant's
detention can be considered to have been decided “speedily”
by the Magistrates' Court. In these circumstances it is unnecessary
to examine whether the Constitutional Court should have determined
the issue itself.
- In
view of the above, and having regard to the speedy determination of
the applicant's challenge to the lawfulness of his detention, the
intervention of the Constitutional Court must be considered to have
fulfilled the requirements of Article 5 § 4. There has therefore
been no violation of that provision.
- The
Court would observe that the above conclusion is to be seen in the
light of the particular circumstances of the instant case, in
particular the fact that the applicant cannot be considered a victim
in respect of the initial period of delay lasting more than four
months. It notes in this connection that in its judgments in Sabeur
Ben Ali and Kadem (both cited above) the Court found that
lodging a constitutional application would not have ensured a speedy
review of the lawfulness of an applicant's detention for the purposes
of Article 5 § 4 of the Convention. The Court's present judgment
should not be seen as casting doubt on that finding.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly, the applicant invoked Article 13 of the
Convention in relation to the speedy determination of his claim. The
Court notes that this complaint is linked to that examined above and
must therefore likewise be declared admissible. However, the Court
recalls that according to its established case-law Article 5 § 4
of the Convention constitutes a lex specialis in
relation to the more general requirements of Article 13 and therefore
no separate issue arises in this case.
FOR THESE REASONS, THE COURT
1. Joins unanimously to the merits the Government's
preliminary objection to the applicant's victim status regarding the
complaint under Article 5 § 4 of the Convention and declares
the application admissible;
- Holds by five votes to two that there has been
no violation of Article 5 § 3 of the Convention;
- Holds by six votes to one that there has been no
violation of Article 5 § 4 of the Convention and upholds
the Government's above-mentioned preliminary objection in part;
4. Holds unanimously that there is no need to examine the
complaint under Article 13 of the Convention.
Done in English, and notified in writing on 21 April 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
(a) Dissenting
opinion of Judge Bonello;
(b) Partly
dissenting opinion of Judge Bianku.
N.B.
T.L.E.
DISSENTING OPINION OF JUDGE BONELLO
- I
felt compelled to vote for a violation of Articles 5 § 3 and 5 §
4 as I believe the facts of the case fully justified this vote. I
fight back a chilling doubt that this judgment has inflicted a blow
to the protection of individuals against arbitrary arrest and
detention, far more critical than a superficial reading might
suggest.
Violation
of Article 5 § 3 – The fundamental right to take it easy
- This
Article embraces two separate guarantees against arbitrary
deprivation of liberty by requiring that any person arrested on
suspicion of having committed a criminal offence shall be brought
promptly before a judicial authority. Its second limb covers the
right of a person detained to be tried within a reasonable time or
released pending trial. To satisfy the precepts of Article 5 §
3, procedural and substantive requirements have to be observed.
Procedurally, the judicial authority before whom the arrested person
is brought must “hear” the detainee personally or through
his lawyer. The 'substantive' duty places on the judicial authority
the obligation of reviewing carefully, by reference to legal
criteria, all the reasons militating for and against continued
detention.
- The
initial “prompt and automatic” review by a judicial
authority (in Malta, the Court of Magistrates) must be able to
examine and determine (a) whether there exists a reasonable suspicion
that the person detained has committed the crime charged, and (b) all
other 'lawfulness' issues relevant to that arrest and detention. The
basic aim pursued is the immediate release of the person arrested
should either of these tests fail.
- The
present complaint refers to the hearing of 10 September 2005,
and, thereafter, until 29 September. The period complained of
lasted until 29 September as the inaction in dealing with the
control of lawfulness of the applicant's detention after 29 September
was, as to quality, remedied by the judgment of the Constitutional
Court delivered on 14 February 2006. That judgment, however,
gave no remedy for the failure of the control of lawfulness from 10
to 29 September as to its quality. There is no question that the
Government satisfied their obligation to bring the arrested person
promptly before the Court of Magistrates – and the applicant
does not complain about this. He complains about the “quality”
of the review that the Court of Magistrates had failed to provide, in
particular the refusal by that court to deal with his plea of lack of
jurisdiction from 10 to 29 September 2005.
- Following the judgments of this Court in Aquilina
and TW v. Malta,
Parliament had amended the Maltese Criminal Code to enable
Magistrates charged with the “prompt and automatic review”
to examine all the grounds of “lawfulness” of a
deprivation of liberty, and to release an accused where no reasons
against release are established. What remains to be seen is if in the
present case the Court of Magistrates, notwithstanding this
amendment, in fact exercised the new powers conferred on it by law to
comply with Article 5 § 3.
- The
majority accepts that the applicant raised the plea of lack of
jurisdiction immediately on being brought before the Court of
Magistrates.
He had already spent nine months detained in legal limbo in Spain at
the request of the Maltese authorities, and raised this fundamental
plea of “lawfulness” of his detention at the very first
hearing in Malta, on 10 September 2005. A more radical challenge
to the lawfulness of his detention in Malta would be difficult to
conceive since jurisdiction (or lack of it) goes to the very essence
of the legitimacy of arrest and detention.
- Postponing
any examination and determination of this core issue to some
indeterminate later stage, as the Court of Magistrates did, amounted
to a dereliction of a seminal duty expressly mandated by Article 5 §
3 of the Convention. The Court of Magistrates, domestic watchdog over
Article 5 § 3 rights, passed the buck to the trial court to
decide the issue of jurisdiction, months, usually years, later.
Personally I have clear views about Malta's ample jurisdiction to try
the applicant, but surely that is not what is at stake. What concerns
me is that this eminently overriding issue of lawfulness
(jurisdiction) was placed on the back burner and it eventually took
over five months to be examined at all.
- This
Court had, so far (in Article 5 scenarios different from the present
one), showcased exemplary sensitivity where unlawful deprivation of
liberty was alleged and has held that even a few hours detention
without adequate legal basis attracts censure as a breach of the
preeminent right to enjoy liberty.
This was a Court I would not feel shy to identify with. The present
judgment probably records the very first time in the history of the
ECHR that five months' lingering over a plea of unlawfulness of
detention receives the green light from the Court. Article 5 § 3
has been devoutly emptied of substance. Its programmatic purpose has
been perverted, and with some flair too.
- The
Court justified this by having recourse to what in my view only
amounts to a contrived legal fiction. The Court accepted that a plea
of lack of jurisdiction “is not a collateral issue since it
forms the basis of any criminal proceedings” .
However, in view of some perceived “complexity” of the
matter, the Court found that it was reasonable for the domestic
courts to postpone the question of jurisdiction to some later hearing
or stage of the proceedings.
- Complexity?
What complexity? The Government, which in Strasbourg are now reaping
handsome returns from the so-called “complexity” of the
jurisdiction plea, in Malta had (rightly) argued exactly the
opposite: that it was blatantly manifest from express provisions of
the Dangerous Drugs Ordinance and the Criminal Code, that the plea of
jurisdiction was unfounded, and glaringly so. The case-law of the
domestic court had moreover just determined the very same issue of
jurisdiction in similar cases
– there was simply nothing further to argue.
- In
fact, the Court of Magistrates chose to disregard the plea of
jurisdiction, not because of any alleged complexity (that only
surfaces now in Strasbourg), but because, as it wrongly held later
(29 September), it had no competence to decide that plea and
that it was for the Criminal Court, during the trial proper, to deal
with that plea, and not the Court of Magistrates. Never did the Court
of Magistrates invoke “complexity” as the reason for its
refusal to consider the plea of jurisdiction. It had to be the ECHR
that, for the first time, stepped in to throw a totally inexistent
'complexity' into the equation.
- The
plea of jurisdiction could have been, and eventually was, determined
in the briefest of times. Strasbourg has now discovered the mythical
“complexity” of this plea – the only escape hatch
left to justify five months' dithering in a decision which, to mean
anything at all, the Convention requires should be promptly
taken. When toying with a human being's personal liberty, over five
months' delay would have been monstrous even had the issue been
genuinely bedevilled by diabolical complexity. How to qualify it when
– as in the present case - it was simplicity personified? I
would go one step further. In my view, in matters of personal
freedom, the more complex the issue to be resolved, the more
compelling the duty placed on the judicial authority to take it in
hand right away.
- The
Court of Magistrates, once prodded by the Constitutional Court,
could, and did, dispose of the plea of jurisdiction in ten days flat.
So how can Strasbourg ever justify a failure to control the
lawfulness of detention for five months and ten days on the pretext
of 'complexity', when that plea could have been, and was, actually
determined in ten days? Marketplace wisdom refers to that as the
proof of the pudding.
- This
judgment gives carte blanche, in a matter in which urgency is of the
essence, for courts to fiddle around only with what seems easy to
resolve, and put off indefinitely any control of lawfulness that
appears to them less simple to crack. If the supervisory court brands
the legality issue as “complex”, the applicant has plenty
of time to meditate about his tough luck behind bars. This judgment
says explicitly that Article 5 § 3 henceforth means that the
review court no longer has a duty to enquire fully into the
lawfulness of the detention; it only has the duty to investigate
those issues of lawfulness easily resolvable. All the others can
wait. The very raison d'être of Article 5 § 3,
which I misguidedly believed entrenched the fundamental right of a
detainee to have the lawfulness of his deprivation of liberty
determined “promptly and automatically”, has been well
and truly sacrificed. Only 'easy' issues have to bother the review
court. The Aquilina, T.W., Sabuer ben Ali and Kadem
blooms now wither under Strasbourg frostbite. Control of lawfulness
of detention cannot be allowed to interfere with the more fundamental
right of the supervising judge to take it easy.
Article
5 § 4 – The right of asking for two and settling for one
- The
purpose of this guarantee is to assure, to persons who are detained,
the right to a judicial review of the continued lawfulness of that
detention, and this at any stage after their first “presentation”
before a judicial authority.
- A
speedy review of that continued lawfulness, leading, where
appropriate, to release, underscores the essence of this safeguard.
This Article not only guarantees the right to take proceedings to
challenge the lawfulness of continued detention, but equally the
right to obtain “a speedy judicial decision” concerning
the lawfulness of that detention
- In
the present case, the applicant had formally pleaded the lack of
jurisdiction of the Maltese courts; this, if correct, would have
negated the principal basis of the lawfulness of his continued
detention. He had been imprisoned in Spain, at the request of the
Maltese authorities, since 30 November 2004. On 14 February
2006, the Constitutional Court failed to determine his plea of
jurisdiction and remitted the issue to the Court of Magistrates that
should have determined it in the first place. That court finally
disposed of that plea over fifteen months after the applicant's
arrest, and over five months after the jurisdiction plea had been
formally raised immediately on his extradition to Malta.
- The
majority held that the applicant had lost victim status the moment
the Constitutional Court found that there had been a violation of
Article 5 § 4 since the Court of Magistrates had refused to
determine the plea of jurisdiction and had granted a remedy for that
violation.
The ten days which the Magistrates' Court then took to determine the
issue after it was referred back to it by the Constitutional Court
were not, in their view, in violation of the 'speediness'
requirement. Even if with the scantiest passion, I could bring myself
to endorse that.
- But,
with the profoundest respect due to my colleagues, this analysis
seems to me to be compellingly wrong. The applicant had complained to
the Constitutional Court that Articles 5 §§ 3 and 4, had
been breached when the committal court, twice requested, had refused
to assess the lawfulness of his arrest and detention on the basis of
lack of jurisdiction. In Strasbourg he also complained that this
issue had only been determined five months and ten days after he had
raised it. The Constitutional Court decided (in favour of the
applicant), only on the (poor) quality of the review – and not
on its speediness. It only examined, and censured, the failure of the
Court of Magistrates to determine the plea of lack of jurisdiction –
but did not consider at all, let alone give any remedy for, the lack
of promptness in determining that issue. No remedy was ever given for
the inordinate length of time the applicant's plea to be released had
taken to reach determination – from 10 September 2005 to
23 February 2006. The constitutional procedures lasted from
3 October 2005 to 14 February 2006 and the jurisdiction
plea was only disposed of on 23 February 2006. It is this delay
that was the subject matter of the complaint before this Court.
- In
brief. The ECHR had before it two separate complaints. Firstly, that
the referral court had exercised badly its function of supervision by
refusing to consider the plea of jurisdiction – the quality of
the review. Secondly, that the process to ensure this supervision had
taken on excessively long time: the delay in the review. The ECHR
could have examined and remedied this delay both under Article 5 §
3 and under Article 5 § 4. In fact it remedied it under neither.
This somnolent handling of the control of lawfulness of detention has
passed through Strasbourg uncensured under both Articles. Nowhere in
the Strasbourg judgment or in the domestic ones, do I find a hint
that five months and ten days' delay to control the lawfulness of
detention is right, neutral or wrong.
- It
is inconceivable to me why the Court should have found the applicant
no longer to be a victim because, of two separate violations, one had
been remedied. And the other? Do five months and ten days' delay to
determine a plea of release from unlawful detention, with no remedy
at all given against that delay, either in the domestic forum and in
the Strasbourg one, raise no eyebrows at all?
- A
remedy for delay could only have been granted by Strasbourg. This
Court has already held that the cumbersome proceedings before the
Constitutional Court would not have ensured a speedy review of
lawfulness of detention.
This means both that no effective remedy for that delay was available
under the domestic system, and that the applicant did not have to
exhaust before the Constitutional Court a complaint about the
slowness of the review (caused by long proceedings before the
Constitutional Court).
As no remedy for this delay is available in the domestic system, that
left the applicant only able to search for a remedy for the breach of
the speediness requirement, in the Strasbourg Court. This Court, for
unexplained reasons, no longer considers him a victim of a violation
lasting over five months, as the domestic courts had provided a
remedy for a totally different one.
- The
applicant could not obtain any remedy for delay from the Maltese
courts. The present judgment makes sure he does not obtain any from
Strasbourg either.
PARTLY DISSENTING OPINION OF JUDGE BIANKU
Like
Judge Bonello, I too have voted for a finding of a violation of
Article 5 § 3 of the Convention. I consider that my concerns on
the Article 5 § 3 issue have been fully covered in Judge
Bonello's dissenting opinion in so far as it addresses that
particular complaint.
