Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25644/94

by Thomas WIFFEN

against Malta

The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 November 1994

by Thomas WIFFEN against Malta and registered on 14 November 1994 under

file No. 25644/94;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

6 February 1996 and the observations in reply submitted by the

applicant on 11 March 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born 1943 and resident in

Luqa. At the time of introduction of the application, he was held in

detention in the Civil Prisons. He is represented before the Commission

by Dr. Joseph Brincat, an advocate practising in Marsa.

The facts as submitted by the parties may be summarised as

follows.

a. Particular circumstances of the case

On 6 October 1994, the applicant was arrested by the police. On

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.

The applicant contends that he had not been allowed to contact

a lawyer before the hearing. The Government submit that, although the

applicant had been informed of his right to be assisted by counsel at

the hearing, he failed to make such a request.

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 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. The Attorney General

made written opposition to release on the same day, i.e. on

10 October 1994. A magistrate of the Magistrates Court took the

decision to reject the applicant's bail application on 10 October 1994.

This magistrate was different from the magistrate before whom the

applicant 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.

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 and practice

Section 575 of the Maltese Criminal Code provides as relevant:

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

of 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 that

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 provides:

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

for by the person charged or accused."

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.

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.

COMPLAINTS

The applicant submits that there is violation of Article 5

para. 3 of the Convention. He argues that since pursuant to Section 575

of the Criminal Code a magistrate had no power to release he has not

been brought promptly before a person complying with the requirements

of that provisions. Having regard to the fact that he was not allowed

to contact a lawyer until Friday afternoon (the Court registry closed

at 15.00h), it was not possible to lodge an application until the

following Monday, and the earliest date at which the magistrate could

hear the application with power to release was 11 October 1994, a lapse

of 5-6 days.

The applicant also invokes Article 5 para. 4 in respect of his

allegation that there is no remedy whereby the lawfulness of his arrest

or detention can be challenged "speedily".

The applicant complains under Article 6 para. 3 (c) that he was

not given the opportunity to instruct a lawyer prior to his appearance

in court on 7 October 1994, nor was one appointed for him. This was,

he submits, of particular importance since he was a foreign citizen,

did not know any Maltese lawyers and was not in a position to defend

himself.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 November 1994 and registered

on 14 November 1994.

On 29 November 1995 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

6 February 1996. The applicant replied on 11 March 1996.

THE LAW

1. The applicant complains under Article 5 para. 3 (Art. 5-3) of the

Convention that he was not brought promptly before a judge who had the

power to order his release. He also complains under Article 5 para. 4

(Art. 5-4) of the Convention that there is no remedy whereby the

lawfulness of his arrest or detention can be challenged "speedily".

Article 5 (Art. 5) of the Convention, insofar as relevant,

provides as follows:

"3. Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) of this Article shall be brought

promptly before a judge or other officer authorised by law to

exercise judicial power and shall be entitled to trial within a

reasonable time or to release pending trial. Release may be

conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings by which the

lawfulness of his detention shall be decided speedily by a court

and his release ordered if the detention is not lawful."

The Government submit that the applicant should have made an

application to the First Hall of the Civil Court and the Constitutional

Court in which he could have raised his complaint concerning lack of

legal assistance prior to and during his appearance before the

magistrate on 7 October 1994.

The Commission recalls that, in accordance with its case-law, the

obligation to exhaust domestic remedies contained in Article 26

(Art. 26) of the Convention is limited to making "normal use" of

remedies likely to be effective and adequate to remedy the matters of

which the applicant complains (No. 11208/84, Dec. 4.3.86, D.R. 46 p.

182). For a remedy to be effective it must be capable of remedying

directly the situation complained of (No. 11660/85, Dec. 19.1.89, D.R.

59 p. 85).

The Commission considers that making an application to the First

Hall and the Constitutional Court concerning access to counsel before

and during the applicant's appearance before the magistrate on

7 October 1994 would not have secured direct respect for the rights of

the applicant under Article 5 para. 3 (Art. 5-3) of the Convention. It

follows that this is not an effective remedy within the meaning of

Article 26 (Art. 26) of the Convention insofar as the applicant's

complaints under Article 5 para. 3 (Art. 5-3) are concerned (see,

mutatis mutandis, No. 10868/84, Dec. 21.1.87, D.R. 51 p. 62 and No.

12747/87, Dec. 12.12.89, D.R. 64 p. 97). Moreover, the Commission

considers that, in the particular circumstances of the case, the

question of whether lodging an application would have provided redress

for the applicant's complaints under Article 5 para. 4 (Art. 5-4) of

the Convention is linked to the substance of these complaints (see,

mutatis mutandis, No. 9920/82, Dec. 13.3.84, D.R. 37 p. 75).

As regards the substance of the applicant's complaints under

Article 5 paras. 3 and 4 (Art. 5-3, 5-4) of the Convention, 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.

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, 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 as

soon as it was practicable in the circumstances of the case and, in any

event, "promptly" within the meaning of Article 5 (Art. 5) of the

Convention.

The applicant argues that, 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. Article 5 para. 3

(Art. 5-3) of the Convention was violated because the appearance of the

applicant before the first magistrate after his arrest was a mere

formality, as the magistrate had no power to order his release. The

applicant further argues 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 rejected his

bail application on 11 October 1994 was not the same as the magistrate

before whom the applicant appeared on 7 October 1994.

The Commission has examined the parties' other observations and

considers that the complaints under Article 5 paras. 3 and 4

(Art. 5-3, 5-4) of the Convention raise serious questions of fact and

law which are of such complexity that their determination should depend

on an examination of the merits. This part of the application cannot,

therefore, be regarded as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no

other ground for declaring it inadmissible has been established.

2. The applicant complains under Article 6 para. 3 (c)

(Art. 6-3-c) of the Convention that he was not given the opportunity

to instruct a lawyer prior to his first appearance before a magistrate

after his arrest.

Article 6 para. 3 (c) (Art. 6-3-c) of the Convention provides as

follows:

"Everyone charged with a criminal offence has the following

minimum rights:

...

c. to defend himself in person or through legal

assistance of his own choosing or, if he has not sufficient means

to pay for legal assistance, to be given it free when the

interests of justice so require."

The Commission notes that there is no indication that the

applicant raised this complaint when appealing to the Court of Appeal

against his first instance conviction by the Magistrates Court.

However, even assuming that the applicant has exhausted domestic

remedies, the Commission considers that the complaint should be

rejected as manifestly ill-founded. Even assuming that the authorities

are to be held responsible for the applicant's not having legal

assistance during the first two days of his detention, the Commission

finds no indication that this delay prejudiced in any manner the

applicant's defence at his trial (see Eur. Court HR, Murray v. United

Kingdom judgment of 8 February 1996, unpublished, para. 62).

It follows that this part of the application must be rejected as

inadmissible, being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE as regards the issue

arising in connection with the fairness of the criminal

proceedings against the applicant from the delayed access to

counsel,

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without

prejudging the merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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WIFFEN v. MALTA

WIFFEN v. MALTA

LEXI