Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 25642/97

Joseph Aquilina

against

Malta

REPORT OF THE COMMISSION

(adopted on 4 March 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-27) 3

A. The particular circumstances of the case

(paras. 16-26) 3

B. Relevant domestic law

(para. 27) 4

III. OPINION OF THE COMMISSION

(paras. 28-38) 5

A. Complaint declared admissible

(para. 28) 5

B. Point at issue

(para. 29) 5

C. As regards Article 5 para. 3 of the Convention

(paras. 30-37) 5

CONCLUSION

(para. 38) 6

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION 7

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European

Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Maltese citizen, born in 1974 and resident in Qormi,

Malta. He was represented before the Commission by Mr Joseph Brincat, a lawyer

practising in Marsa, Malta.

3. The application is directed against Malta. The respondent Government were

represented by their Agent, Mr Anthony E. Borg Barthet, the Attorney General.

4. The case concerns the applicant's right to be brought promptly before a

judge or other officer authorised by law to exercise judicial power. The

applicant invokes Article 5 para. 3 of the Convention.

B. The proceedings

5. The application was introduced on 7 July 1994 and registered on 14

November 1994.

6. On 29 November 1995 the Commission (First Chamber) decided, pursuant to

Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application

to the respondent Government and to invite the parties to submit written

observations on its admissibility and merits.

7. The Government's observations were submitted on 6 February 1996. The

applicant replied on 11 March 1996.

8. On 17 January 1997 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the

parties on 28 January 1997 and they were invited to submit such further

information or observations on the merits as they wished. The Government

submitted observations on 4 March 1997, to which the applicant replied on 24

March 1997.

10. After declaring the case admissible, the Commission, acting in accordance

with Article 28 para. 1 (b) of the Convention, also placed itself at the

disposal of the parties with a view to securing a friendly settlement. In the

light of the parties' reaction, the Commission now finds that there is no basis

on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First Chamber) in

pursuance of Article 31 of the Convention and after deliberations and votes, the

following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENI?

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 4 March 1998 by the Commission and

is now transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach

by the State concerned of its obligations under the Convention.

14. The Commission's decision on the admissibility of the application is

annexed hereto.

15. The full text of the parties' submissions, together with the documents

lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. The applicant was arrested by the police on 20 July 1992 and detained for

interrogation for two days.

17. On 22 July 1992 the applicant was brought before the Magistrates Court.

The charge was read out by the police inspector and alleged that the applicant

had defiled his girlfriend in a public place (an offence involving sexual acts)

and threatened her family. The applicant pleaded not guilty.

18. The applicant's counsel lodged an application for bail. Since the

applicant was facing charges attracting a maximum sentence of three or more

years, the application had to be served on the Attorney General. The Acting

Registrar however did not serve the application on the day it was submitted but

the next day, i.e. on 23 July 1992. The Attorney General was granted two days by

the court to reply.

19. On 23 July 1992 the applicant made a constitutional application to the

First Hall of the Civil Court arguing that there had been a violation of Article

5 para. 3 of the Convention in that the magistrate before whom he had appeared

the day before did not have the power to order his release at that stage; since

he was facing charges attracting a maximum sentence of three or more years, the

application for bail had to be first communicated to the Attorney General. It

was decided that the applicant's constitutional appeal would be heard on 30 July

1992.

20. On 24 July 1992 the Attorney General opposed the applicant's application

for bail and the Magistrates Court decided to adjourn its examination.

21. On 30 July 1992 the First Hall, having noted that the applicant had not

been notified of the hearing, decided to adjourn the examination of his

constitutional application until 6 August 1992.

22. On 31 July 1992 a different magistrate, acting as a Court of Inquiry,

after hearing evidence from the alleged victim, ordered the applicant's release.

23. On 1 March 1993 the applicant was found guilty of the charge of defilement

in a public place but having regard to the absence of violence, his young age

(18), his previous good conduct, the fact that he was engaged to the girl, and

that most of the sexual acts took place while he was under eighteen, he was

discharged on probation.

24. On 25 November 1993 the First Hall held that the provisions of Article

575 of the Criminal Code which require written notification of the Attorney

General were inconsistent with the provisions of Article 5 para. 3 of the

Convention in failing to provide for the prompt consideration of the application

for bail. It also found a breach of Article 5 para 3 in the delay taken by the

Acting Registrar to notify the Attorney General. The Court awarded LM 100 by way

of compensation.

25. The respondents (Commissioner of Police, the Acting Registrar, the

Attorney General and Prime Minister) in the action appealed to the

Constitutional Court.

26. On 13 June 1994 the Constitutional Court reversed the decision of the

First Hall. It found that the applicant had been brought before a magistrate

within a short period and that Article 5 para. 3 did not require the magistrate

to have the power to order release at that moment.

B. Relevant domestic law

27. The Maltese Criminal Code provides as follows:

Section 575

"2. The demand for bail shall be made by an application, a copy whereof

shall be communicated to the Attorney General on the same day, whenever it is

made by

...

(c) persons accused of any crime punishable with more than

three years imprisonment ...

3. The Attorney General may, within the next working day, by a note,

oppose the application, stating the reasons for his opposition."

Section 582 para. 1

"The Court may not ex officio grant bail, unless it is applied for by the

person charged or accused."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

28. The Commission has declared admissible the applicant's complaint that he

was not brought promptly before a judge who could examine the reasonableness of

his arrest and order his release.

B. Point at issue

29. The only point at issue is whether there has been a violation of Article 5

para. 3 (Art. 5-3) of the Convention

C. As regards Article 5 para. 3 (Art. 5-3) of the Convention

30. Article 5 para. 3 (Art. 5-3) of the Convention provides 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".

31. The applicant submits that his appearance before a first magistrate forty

eight hours after his arrest was a mere formality, as the magistrate had no

power to order his release. According to the law, his bail application had first

to be submitted to the Attorney General. However, when an arrested person is

brought before the magistrate, the prosecution is represented by the Officer of

the Executive Police and not the Attorney General. The magistrate who decided on

the applicant's detention after the views of the Attorney General had been

transmitted was different from the magistrate before whom the applicant had

appeared. The applicant was only released twelve days after his arrest, ten days

after his first appearance before the magistrate.

32. The respondent Government argue that the magistrate before whom the

applicant appeared on 22 July 1992 was vested with the power to order his

release. However, the Attorney General who was responsible for the prosecution

of serious cases had to be consulted first. The Attorney General replied on 24

July 1994, i.e. two days after the applicant had been arraigned in court, and on

the same day the magistrate decreed that he would give a decision later on in

the proceedings. However, this was fully compatible with Article 5 para. 3 (Art.

5-3) of the Convention which does not require that provisional liberty be given

immediately and which does not exclude written proceedings, provided that these

are speedy and efficient.

33. The Commission recalls that, according to the case-law of the Court,

"Article 5 para. 3 (Art. 5-3) ... is aimed at ensuring prompt and automatic

judicial control of police ... detention ordered in accordance with the

provisions of paragraph 1 (c)" (Eur. Court HR, De Jong, Baljet and Van den Brink

v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 24, para. 51).

Moreover, "the 'judge' ... must actually hear the detained person and take the

appropriate decision" (ibid.).

34. The Commission notes that, although persons who have been arrested in

circumstances which fall under Article 5 para. 1 (c)

(Art. 5-1-c) of the Convention are brought before a magistrate promptly,

Maltese law does not appear to provide for automatic judicial review. According

to section 582 para. 1 of the Criminal Code, persons who have been arrested can

obtain a ruling on their detention only if they lodge a bail application. If no

bail application is lodged, it appears that the magistrate, during the first

appearance of the accused before him, simply reads out the charges to him and

informs him of his rights.

35. The applicant was arrested on 20 July 1992 and was brought before a

magistrate on 22 July 1992. He lodged a bail application on 22 July 1992 and the

Government argue that, as a result, the magistrate became in principle vested

with the power to order the applicant's release. However, the Commission notes

that, in accordance with Article 575 para. 2 of the Criminal Code, since the

applicant was accused of a crime punishable with more than three years

imprisonment, this power could be exercised only after the Attorney General had

been consulted.

36. The Commission further notes that the Attorney General stated his views on

24 July 1992. However, as the examination of the bail application was adjourned,

the applicant did not obtain a decision on his detention before 31 July 1992,

i.e. twelve days after his arrest. Moreover, this decision was taken by a

magistrate who was not the same as the one before whom the applicant had

appeared on 22 July 1992 and it is not disputed by the parties that this second

magistrate had not heard the applicant in person after his arrest.

37. The Commission considers, therefore, that the judicial control of the

applicant's detention was not automatic. Moreover, it was not prompt and was not

exercised by a magistrate who had heard himself the applicant. As a result, the

requirements of Article 5 para. 3

(Art. 5-3) of the Convention were not met in the applicant's case.

CONCLUSION

38. The Commission concludes, unanimously, that in the present case there has

been a violation of Article 5 para. 3 (Art. 5-3) of the Convention.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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AQUILINA v. MALTA

AQUILINA v. MALTA

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