Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18420/91

by Tonio VELLA

against Malta

The European Commission of Human Rights sitting in private on

17 February 1993, the following members being present:

MM. J.A. FROWEIN, Acting President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 May 1991 by

Tonio Vella against Malta and registered on 26 June 1991 under file

No. 18420/91;

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

9 April 1992 and the observations in reply submitted by the

applicant on 7 July 1992;

- the submissions of the parties at an oral hearing on

17 February 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Maltese citizen born in 1952 and resident in

Birzebuggia. He is represented by Dr. Giovanni Bonello, an advocate

practising in Valletta.

The facts as submitted by the parties may be summarised as

follows:

On 2 December 1983, following the receipt of information from an

informant alleging that weapons and other illegal objects were to be

found in the applicant's residence and the garage opposite, the police

entered his home without giving any reasons and conducted a search

which found nothing. The applicant submits that no such information was

received. The applicant was subsequently arrested and detained for

questioning by the police.

The applicant was kept in detention for 46 hours although his

interrogation only lasted one hour.

The applicant subsequently instituted proceedings against the

police alleging that his human rights had been infringed.

On 5 December 1986, the Civil Court ruled that the applicant had

been subjected to inhuman and degrading treatment and that his arrest

and detention had violated his fundamental rights. It also ruled that

the entry to and search of the applicant's home was not in violation

of the Maltese Constitution.

Both parties appealed to the Constitutional Court which gave its

judgment on 5 April 1991. It held that the arrest and detention of the

applicant violated his constitutional right against arbitrary arrest

and detention, as there existed no suspicion that the applicant had

committed or was about to commit a criminal offence. It also found

that during the investigation the applicant had been subjected to

inhuman and degrading treatment.

On the issue of the entry and search of the applicant's home the

Court found that although they violated the provisions of the Criminal

Code (Article 352), because the police failed to inform the persons

present of the reasons for the entry and search, they were not contrary

to the Maltese Constitution which provides for the search of premises

where reasonably required in the interests of public order (Article

38(2)a). The Court rejected the appeal by the police against the

finding of a violation of the applicant's rights in respect of other

matters. It ordered that the applicant be liable for a fourth of the

costs.

RELEVANT DOMESTIC LAW AND PRACTICE

The Maltese Criminal Code as concerns the powers of entry and

search provides, inter alia, as follows:

"Power of Executive Police to enter houses, etc.

350. (1) Saving the cases where the law provides otherwise, no

officer of the Executive Police below the rank of inspector shall

enter any house, building or other enclosure for the purpose of

effecting any search therein or arresting any person who has

committed or is suspected of having committed any offence,

without an order in writing from a superior officer, unless

(a) the offence is a crime not excepted under section 347 and

there is imminent danger that the said person may escape or

that the corpus delicti or the means of proving the offence

will be suppressed; or

(b) the person is detected in the very act of committing a

crime not excepted under section 347; or

(c) the intervention of the Executive Police is necessary in

order to prevent the commission of a crime not excepted

under section 347; or

(d) the entry is necessary for the execution of any warrant or

order issued by any other competent authority in the cases

prescribed by law.

Definition of "enclosure"

(2) The expression "enclosure" does not include any plot of land

enclosed by rubble walls."

"352. The officer of the Executive Police employed in the

execution of any arrest or search shall inform the person subject

to such arrest or search, if present, of his authority and of the

reason for the arrest or search, unless he shall have detected

such person in the very act of committing the offence."

The Maltese Constitution provides:

"38. (1) Except with his own consent or by way of parental

discipline, no person shall be subjected to the search of his

person or his property or the entry by others on his premises.

(2) Nothing contained in or done under the authority of any law

shall be held to be inconsistent with or in contravention of this

section to the extent that the law in question makes provision

(a) that is reasonably required in the interests of defence,

public safety, public order, public morality or decency, public

health, town and country planning, the development and

utilisation of mineral resources, or the development and

utilisation of any property in such a manner as to promote the

public benefit."

COMPLAINTS

The applicant complains before the Commission only of an

interference with his right to respect for his home under Article 8 of

the Convention. He submits that the entry and search by the police

were in violation of the Criminal Code and therefore offended against

the principle of legality. In view of the courts' finding that there

was no suspicion against the applicant that he had committed or was

about to commit a criminal offence, he also submits that the

interference cannot be justified as necessary in a democratic society

for the prevention of crime.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 May 1991 and registered

on 26 June 1991.

On 19 February 1992, the Commission decided to communicate

the application to the Government and to ask for written observations

on the admissibility and merits of the application.

The Government's observations were submitted on 9 April 1992 and

the applicant's observations in reply were submitted on 7 July 1992.

On 13 May 1992, the Commission decided to grant legal aid to

the applicant.

On 14 October 1992, the Commission decided to hold an oral

hearing.

At the hearing, on 17 February 1993, the parties were represented

as follows:

For the Government:

Dr. Anthony BORG BARTHET Attorney General,

Agent for Malta

Dr. Lawrence QUINTANO Senior Counsel

For the applicant:

Dr. Giovanni BONELLO Counsel

Dr. Tonio BORG Counsel

Mr. Mario Mifsud BONNICI Solicitor.

THE LAW

The applicant complains that his home was entered and searched

in violation of Article 8 (Art. 8) of the Convention.

Article 8 (Art. 8) of the Convention provides that:

"1. Everyone has the right to respect for his private and family

life, his home and his correspondence.

2. There shall be no interference by a public authority with the

exercise of this right except such as is in accordance with the

law and is necessary in a democratic society in the interests of

national security, public safety or the economic well-being of

the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The Government submit that the applicant cannot be considered to

be a victim of a violation of the Convention for a number of reasons.

They consider that the incident should be taken as a whole and that,

since the Constitutional Court found violations in respect of his more

serious allegations of inhuman and degrading treatment and arbitrary

arrest and detention, he will be able to obtain damages. They also

submit that in any case the Constitutional Court found that the entry

and search of the applicant's home were in violation of the provisions

of the Criminal Code and that this constituted satisfaction of the

applicant's complaints.

Article 25 (Art. 25) of the Convention provides that the

Commission may only receive petitions from persons, non-governmental

organisations or groups of individuals "claiming to be a victim of a

violation by one of the High Contracting Parties" of the rights

contained in the Convention. The Commission has therefore examined

whether in the present case the applicant may claim to be a victim of

a violation of his Convention rights within the meaning of Article 25

(Art. 25) of the Convention.

The case-law of the Convention organs establishes that someone

who has received adequate redress at domestic level for alleged

violations of the Convention cannot claim to be a victim of those said

violations (Nos. 7825/77, Dec. 2.5.78, D.R. 14 p. 197, and 10888/84,

Dec. 3.12.86, D.R.50 p. 90). Consequently, where domestic courts

recognise expressly or in substance the alleged violation and, if

necessary, afford redress, the individual is deprived of his status of

victim for the purposes of applying under the Convention (see eg. Eur.

Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, p. 30,

para. 66, and No. 10868/84, Dec. 21.1.87, D.R. 51 p. 62).

The Commission recalls that the Constitutional Court found that

the entry and search by the police was in violation of Article 352 of

the Criminal Code. The Court continued, however, to find that

nonetheless the search was reasonably required in the interests of

public order and did not infringe the applicant's rights as protected

under the Constitution. The Constitutional Court's finding, therefore,

denied the applicant's basic complaint that the entry and search

violated his constitutionally protected right to the privacy of his

home enshrined in Article 38 of the Constitution of Malta. In these

circumstances, the Commission finds that the applicant cannot be said

to have received an acknowledgement either expressly or in substance

of the alleged violation of his constitutional rights. He must

therefore still be considered a "victim" within the meaning of

Article 25 (Art. 25) of the Convention.

As regards the substance of the applicant's case, the Commission

has taken cognizance of the parties' submissions. After a preliminary

examination of the case the Commission finds that the application

concerns complex issues of fact and law which must be examined on the

merits. The application cannot therefore be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for inadmissibility

have been established.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (J.A. FROWEIN)

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VELLA v. MALTA

VELLA v. MALTA

LEXI