Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 25644/94

T. W.

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. 16-24) 3

A. The particular circumstances of the case

(paras. 16-18) 3

B. Relevant domestic law

(paras. 19-24) 3

III. OPINION OF THE COMMISSION

(paras. 25-47) 5

A. Complaints declared admissible

(para. 25) 5

B. Points at issue

(para. 26) 5

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

(paras. 27-35) 5

CONCLUSION

(para. 36) 7

D. As regards Article 5 para. 4 of the Convention

(paras. 37-44) 7

CONCLUSION

(para. 45) 8

E. Recapitulation

(paras. 46-47) 8

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION 9

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 British citizen, born in 1943 and resident in Luqa,

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 and his

right to institute habeas corpus proceedings. The applicant invokes Article 5

paras. 3 and 4 of the Convention.

B. The proceedings

5. The application was introduced on 2 November 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 admissible the applicant's

complaints under Article 5 paras. 3 and 4 of the Convention. It declared

inadmissible the remainder of the application.

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 further observations.

The Government submitted observations on 28 February 1997, to which the

applicant replied on 19 April 1997. The Government sent further comments on 24

April 1997 to which the applicant replied on 5 May 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. On the evening of Thursday 6 October 1994 at approximately 8:30, the

applicant was arrested by the police. On Friday 7 October 1994, the applicant

appeared before a magistrate of the Magistrates Court and was charged with

defilement of his minor daughter (an offence involving sexual acts) and having

committed acts of violent assault on her in violation of Article 203 (1) a, b

and c of chapter 9 of the Laws of Malta. The applicant pleaded not guilty.

17. After the hearing, the applicant contacted a lawyer who arranged to meet

with him the next day, 8 October, which was a Saturday. On the morning of Monday

10 October 1994 the applicant's lawyer filed a written application for release.

The application was sent to the Attorney General immediately as prescribed by

law, since the applicant was facing charges attracting a maximum sentence of

three or more years. The Attorney General was given 24 hours to reply. On the

same day, i.e. on 10 October 1994, the Attorney General, by a declaration in

writing, stated his opposition to the applicant's release. Still on 10 October

1994, a magistrate of the Magistrates Court took the decision to reject the

applicant's bail application. The recollection of the magistrate is that this

decision was taken either late in the morning or early in the afternoon of 10

October 1994. The magistrate in question was different from the magistrate

before whom the applicant had appeared on 7 October 1994. On 11 October 1994 the

registrar of the Magistrates Court entered the second magistrate's decision in

the court's books.

18. On 20 October 1994, the second magistrate began hearing evidence and on 25

October 1994 he ordered the applicant's release on bail. On 8 May 1995, the

Court of Magistrates convicted the applicant and gave him a suspended prison

sentence of two years. On 8 January 1996 the Court of Criminal Appeal upheld in

essence the applicant's conviction.

B. Relevant domestic law

19. 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."

20. In its judgment of 8 January 1991 in the Ellul case, the Constitutional

Court of Malta upheld a decision taken on 31 December 1990 by the Civil Court in

the exercise of its constitutional jurisdiction to the effect that Article 5

para. 3 of the Convention did not impose any obligation on the magistrate before

whom an arrested person appeared to examine whether that person's arrest had

been made on a reasonable suspicion or not. Moreover, according to the judgment

of the Civil Court, as upheld by the Constitutional Court, Article 5 para. 3 of

the Convention did not impose on the prosecution any duty, on presenting the

arrested person, to bring any evidence that the police had a reasonable

suspicion at the time of the arrest.

21. In its judgment of 13 June 1994 in the Aquilina case, the Constitutional

Court reversed a decision taken on 25 November 1993 by the Civil Court in the

exercise of its constitutional jurisdiction to the effect that the provisions of

Article 575 of the Criminal Code, which required 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 bail

application. The Constitutional Court considered that Article 5 para. 3 of the

Convention required the arrested person to be brought before a magistrate within

a short period from the arrest. It did not require the magistrate to have the

power to order release at that moment.

22. Section 137 of the Maltese Criminal Code provides:

"Any Magistrate who, in a matter within his powers, fails or refuses to

attend to a lawful complaint touching an unlawful detention, and any officer of

the Executive Police, who on a similar complaint made to him, fails to prove

that he reported the same to his superior authorities within twenty-four hours

shall on conviction, be liable to imprisonment for a term from one to six

months."

23. The Court of Magistrates has examined a number of applications for release

in which the lawfulness of a person's arrest was challenged under this

provision. Examples of such applications are that submitted by J. Leopold on 3

July 1995 and examined on 4 July 1995 and that submitted by C. Cremona and

examined on 13 June 1990 which led to the detainee's release.

24. By virtue of the European Convention Act of 19 August 1987 the Convention

became part of the Law of Malta.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

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

was not brought promptly before a judge who had the power to order his release

and that there was no remedy whereby the lawfulness of his arrest or detention

could be challenged "speedily".

B. Points at issue

26. What is at issue, therefore, is

- whether there has been a violation of Article 5 para. 3

(Art. 5-3) of the Convention and

- whether there has been a violation of Article 5 para. 4

(Art. 5-4) of the Convention.

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

27. 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".

28. The applicant submits that his appearance before a first magistrate on 7

October 1994 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 applicant further argues that he had

not been allowed to contact a lawyer before his appearance before the magistrate

and that a bail application had to be signed by a lawyer. Moreover, his lawyer

had no right to ask for the opening of the court registry during the weekend.

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 also submits that his lawyer was

never notified of the decision of the magistrate, that the magistrate's office

was closed for a number of days and that, as a result, he was not informed of

the fate of his application before 15 October 1994.

29. The Government argue that, although the Attorney General who was

responsible for the prosecution of serious cases had to be consulted, the

magistrate before whom the applicant appeared on 7 October 1994 was vested in

principle with the power to order his release. The applicant had the right to

lodge the bail application himself. Moreover, as it is expressly mentioned in

the minutes of the hearing of 7 October 1994, the applicant was informed of his

right to be represented by counsel before the Magistrates Court. (i) The

Government further submit that the applicant was able to consult a lawyer after

the hearing on Friday afternoon. This lawyer need not have waited until Monday

morning to lodge the bail application, since he could have asked for the urgent

opening of the court's registry. When the application was lodged on 10 October

1994, it was immediately sent to the Attorney-General who replied on the same

day. The magistrate issued his decision on the applicant's bail application

either late in the morning or early in the afternoon of 10 October 1994.

According to standard practice, the applicant's lawyer should have made the

necessary inquiries and consulted the relevant records. The decision was given

"promptly" in accordance with Article 5 para. 3 (Art. 5-3) of the Convention

which, moreover, does not exclude written proceedings, provided that these are

speedy and efficient.

30. 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.).

31. 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.

32. The Commission also notes that the applicant was arrested on 6 October

1994 and was brought before a magistrate on 7 October 1994. He lodged a bail

application on 10 October 1994 and the Government argue that, as a result, the

Court of Magistrates 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.

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

10 October 1994 and that the parties agree that a magistrate issued a decision

on the same day ordering the applicant's continued detention. One of the issues

on which the parties disagree is when the applicant was or could have been

informed of the magistrate's decision. However, the Commission does not consider

it necessary to pronounce itself on this question or on whether the judicial

control of the applicant's detention was "prompt". The Commission notes in this

connection that the decision on the applicant's detention was taken by a

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

appeared on 7 October 1994. Moreover, it is not disputed by the parties that

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

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

applicant's detention was not automatic. Nor was it exercised by a magistrate

who had himself heard 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

35. 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.

D. As regards Article 5 para. 4 (Art. 5-4) of the Convention

36. Article 5 para. 4 (Art. 5-4) of the Convention provides 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."

37. The applicant submits that there is no remedy whereby the lawfulness of

his arrest or detention can be challenged "speedily". Article 137 of the

Criminal Code creates an offence, the sanction for which is the punishment of

the culprit. It does not envisage the release of the person who is unlawfully

detained. The cases invoked by the Government arose out of exceptional

circumstances and do not establish that Article 137 of the Criminal Code affords

protection similar to that of habeas corpus.

38. The Government submit that Article 137 of the Criminal Code does not

simply create a criminal offence. It provides the legal basis for a procedure

whereby a person may, by application, request the court to examine the

lawfulness of his arrest. This procedure is akin to habeas corpus proceedings in

common-law countries. A number of cases have already been decided by the courts

on this basis.

39. The Commission recalls that, in accordance with the Court's case-law on

Article 5 (Art. 5), "the procedure followed for bringing a person before the

competent legal authority in accordance with paragraph 3 taken in conjunction

with paragraph 1 (c) may ... have a certain incidence on compliance with

paragraph 4. For example, where that procedure culminates in a decision by a

court ordering or confirming deprivation of the person's liberty, the judicial

control of lawfulness required by paragraph 4 is incorporated in this initial

decision. ... However, the guarantee assured by paragraph 4 is of a different

order from, and additional to, that provided by paragraph 3" (Eur. Court HR, De

Jong, Baljet and Van der Brink v. the Netherlands judgment of 22 May 1984,

Series A no. 77, p. 26, para. 57).

40. The Commission notes that the second magistrate carried out a first review

of the lawfulness of the detention on 10 October 1994 which was not, however,

consonant with a procedure embodying the guarantees inherent in Article 5 para.

3 (Art. 5-3) of the Convention. Since the applicant was finally released on bail

on 25 October 1994, it remains to be determined whether a separate issue could

arise under Article 5 para. 4 (Art. 5-4) of the Convention if the applicant was

indeed unable to take judicial proceedings in the interim whereby the lawfulness

of his continued detention could be speedily decided.

41. The Commission recalls that, while the two guarantees under Article 5

para. 3 and para. 4 (Art. 5-3, 5-4) both call for remedies that may lead to the

applicant's release, the questions that may arise when considering the

"lawfulness" of the accused's detention under Article 5 para. 4 (Art. 5-4) are

"often of a more complex nature than those which have to be decided when a

person detained in accordance with Article 5 para. 1 (c) (Art. 5-1-c) is brought

before a judge or other judicial officer as required by para. 3 of the Article.

Indeed, the notion of 'promptly' (aussitôt) in the latter provision indicates

greater urgency than that of 'speedily' (à bref délai) in Article 5 para. 4

(Art. 5-4)" (Eur. Court HR, E. v. Norway judgment of 29 August 1990, Series A

no. 181-A, p. 27, para. 64). What is more, the scope of the obligation under

Article 5 para. 4 (Art. 5-4) is not identical in all circumstances (Eur. Court

HR, Bouamar v. Belgium judgment of 29 February 1988, Series A no. 129, p. 24,

para. 60).

42. In the instant case, following the rejection of the application for bail

on the 10 October 1994, the proceedings for the determination of the lawfulness

of the continued detention were already in train. The second magistrate who had

rejected the bail application in camera began hearing evidence on the 20 October

1994, ten days later, and the applicant was released on bail on the 25 October

1994. An interval of fifteen days between the date of rejection of the bail

application on the 10 October and the date of the applicant's release on bail on

the 25 October after hearing the evidence does not appear difficult to reconcile

with the requirement of "speedily" in Article 5 para. 4

(Art. 5-4) of the Convention.

43. The Commission further notes that a remedy was also at the disposal of the

applicant during this intervening period of fifteen days, since the Convention,

including Article 5 para. 4 (Art. 5-4) thereof, is enforceable as part of the

law of Malta and takes precedence over ordinary law.

CONCLUSION

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

been no violation of Article 5 para. 4 (Art. 5-4) of the Convention.

E. Recapitulation

45. 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 (para. 36).

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

been no violation of Article 5 para. 4 (Art. 5-4) of the Convention (para. 45).

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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T.W. v. MALTA

T.W. v. MALTA