SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46750/99 by Joseph ATTARD against Malta

The European Court of Human Rights (Second Section) , sitting on 28 September 2000 composed of

Mr C.L. Rozakis , President , Mr B. Conforti , Mr G. Bonello , Mr M. Fischbach , Mrs M. Tsatsa-Nikolovska , Mr E. Levits , Mr A.B. Baka , judges , and Mr E. Fribergh, Section Registrar ,

Having regard to the above application introduced on 13 January 1999 and registered on 12 March 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Maltese national, born in 1964 and living in Mellieha (Malta). He is represented before the Court by Mr J. Brincat , a lawyer practising in Marsa (Malta).

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 26 May 1995 the applicant was arrested for aggravated theft. He was brought before the Court of Magistrates and applied for bail, which was the only possibility open to him under domestic law for obtaining his release. As he risked incurring a sentence exceeding three years’ imprisonment, his application had to be communicated to the Attorney General. When the Court of Magistrates obtained the Attorney General’s views some hours later, it ordered the applicant’s release.

On 24 July 1995 the applicant was acquitted.

On 30 October 1995 he instituted proceedings against the police before the Civil Court with a view to obtaining a declaration that his arrest was contrary to Article 5 § 1 of the Convention and compensation.

On 3 February 1997 the Civil Court accepted that the applicant had been arrested although there was “no reasonable suspicion against him” within the meaning of Article 5 § 1 (c) of the Convention. It awarded the applicant MTL 100 by way of compensation. Moreover, the court ordered the police to pay the applicant’s legal expenses.

The police appealed. The applicant entered a cross appeal on the paucity of the amount of compensation. On 31 July 1998 the Constitutional Court rejected both appeals specifying that the applicant was entitled to a “symbolic” sum by way of compensation. It ordered the police to pay the costs of the principal appeal and the applicant the costs of the cross appeal.

B. Relevant domestic law

Section 4 of the European Convention Act allows for applications before the domestic courts by persons who allege that their rights under the Convention have been violated. Section 4 § 8 provides the following:

“Where an application for redress or any reference to the Civil Court, First Hall, made after the 30 April, 1987 is made exclusively either under section 46 of the Constitution or under this section and is still pending before the Civil Court, Fist Hall, or the Constitutional Court, the court may examine whether or not the facts complained of are in violation of the corresponding Human Rights and Fundamental Freedoms, in the first case, or of the corresponding Fundamental Rights and Freedoms of the Individual enforceable under the Constitution, in the second case; and if the court so finds it may order accordingly the redress it may deem appropriate under any of the aforesaid laws.”

COMPLAINTS

The applicant complains under Articles 5 § 5 and 13 of the Convention, about the paucity of the amount he was awarded.

THE LAW

The applicant complains under Articles 5 § 5 and 13 of the Convention, about the paucity of the amount he was awarded.

Article 5 § 5 of the Convention provides as follows:

“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

Article 13 of the Convention provides as follows:

“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government submit that the applicant did not exhaust domestic remedies because, when applying for compensation, he only relied on a breach of Article 5 § 1 (c) of the Convention and not on a breach of the equivalent provision of the Constitution. Moreover, the applicant did not request the domestic court to award him compensation for the legal costs he had incurred in the course of the criminal proceedings. As regards the substance of the complaints, the Government submit that the words “symbolic damages” in Maltese legal parlance, mean non-pecuniary damages. They also point out that the applicant did not incur any pecuniary damage and that the amount he was awarded constituted adequate compensation for his non-pecuniary damage. Not only did it correspond to two weeks’ pay for many workers in Malta, but also the Court has often awarded lower amounts by way of just satisfaction in cases involving breaches of Article 5 of the Convention. Any damage to the applicant’s reputation was restored by his acquittal.

The applicant considers that the amount was inadequate. He does not accept the Government’s understanding of the word “symbolic” in the Constitutional Court’s judgment.

As regards the Government’s submission that the applicant has not exhausted domestic remedies, the Court considers that there is no indication that the applicant would have received more by way of compensation if the domestic court had established, in addition to a breach of Article 5 § 1 of the Convention, a breach of the equivalent provision of the Constitution of Malta. In any event, according to section 4 § 8 of the European Convention Act, every complaint under the Convention is also automatically a complaint under the corresponding provision of the Constitution. It can be, therefore, assumed that the Constitutional Court took into account the breach of the Constitution when fixing the damages. Moreover, the Court notes that the Civil Court ordered the reimbursement of the applicant’s legal expenses in so far as these were connected to his arrest. This is the only portion of the applicant’s legal expenses that can form part of his compensation claim under Article 5 § 5 of the Convention. It cannot, therefore, be considered that the applicant did not exhaust domestic remedies because he did not raise in the constitutional proceedings the issue of his remaining legal costs. It follows that the application cannot be rejected for failure to exhaust domestic remedies in accordance with Article 35 § 1 of the Convention.

However, the Court also recalls that under Maltese law there existed a procedure which the applicant used for claiming compensation in respect of a deprivation of liberty effected contrary to the conditions of Article 5 of the Convention (see the Wassink v. the Netherlands judgment of 27 September 1990, Series A no. 185-A, p. 14, § 38). Moreover, the sum that the applicant was awarded was not entirely disproportionate to the duration of his detention, which only lasted some hours. In these circumstances, the Court considers there is no appearance of a violation of Article 5 § 5 of the Convention.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with the Article 35 § 4.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE .

Erik Fribergh Christos Rozakis Registrar President