THIRD SECTION

DECISION

Application no. 14612/19 Brian VELLA against Malta

The European Court of Human Rights (Third Section), sitting on 19 November 2019 as a Committee composed of:

Georgios A. Serghides , President, Erik Wennerström , Lorraine Schembri Orland, judges, and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 13 March 2019,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Brian Vella, is a Ma ltese national, who was born in 1970 and is detained in Paola, Malta. He was represented before the Court by Dr J. Gatt and Dr D. Camilleri, lawyers practising in Valletta.

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

3 . The applicant was arrested on 17 February 2000 and following a trial by jury, by a judgment of 4 October 2007 confirmed on appeal on 28 July 2011, he was found guilty of the homicide of a couple and sentenced to life imprisonment. The applicant has been detained since the date of his arrest.

4 . On 7 March 2013 the applicant instituted constitutional redress proceedings complaining, under Article 3 of the Convention, that Maltese law did not allow any possibility of early release (remission or parole) for persons serving a life sentence.

5 . By a judgment of 22 March 2018 the Civil Court (First Hall) in its constitutional competence upheld the applicant ’ s claim and, relying on the case ‑ law of the European Court of Human Rights, found a violation of Article 3 of the Convention in so far as Maltese law did not allow a person, who had been found guilty and sentenced to life imprisonment, to seek a review of that sentence at any later time. As a remedy, it ordered that, save the enactment of any express provisions establishing different methods, the applicant may, after a period of twenty ‑ five years from the judgment of the Court of Criminal Appeal, apply to the Parole Board (established by the Restorative Justice Act of 2011) which has the power and duty to examine the circumstances of the applicant at that time and decide whether the applicant should benefit from any of the remedies provided in that Act (or any Act replacing such Act), as for any other person who is not serving a life sentence.

6 . In particular, the court considered that neither a presidential pardon (the conditions of which could not be known to the applicant at the time of his incarceration) nor ‘ prison leave ’ as framed under the Prison Regulations (which was independent of the applicant ’ s behaviour), fulfilled the relevant requirements of an effective review.

7 . In deciding about the remedy, it noted that, to date [2018], while the process for introducing relevant amendments had been initiated, the law still did not provide a mechanism which could examine whether the applicant deserved a review of his sentence, since the applicable law did not allow the Remission Board to reduce the sentence of persons serving life imprisonment. However, the court of constitutional competence ‑ despite its wide powers to give remedial action - could not examine whether the applicant deserved to benefit from any reduction. Indeed, the applicant had not yet served twenty ‑ five years of effective imprisonment (since the date when his sentence became final – 18 July 2011) which was the period recommended before any review of his sentence, and the criminal jurisdictions had not used their discretion and pronounced themselves on the minimum period which, in their view, should elapse before the person serving life imprisonment should be released from prison (under Article 493 of the Criminal Code).

8 . The applicant lodged an appeal on 10 August 2018 in relation to the redress provided. In particular, he argued that the twenty ‑ five years, indicated by the first ‑ court, for him to be able to request a review of his sentence should run as from the date of his first arrest, or at the latest, the date of the first ‑ instance judgment finding him guilty, but not that of the appeal.

9 . By a judgment of 5 October 2018 the Constitutional Court upheld the applicant ’ s appeal in part, considering that, as established in previous domestic case ‑ law, the twenty ‑ five years had to start running from the date of the first ‑ instance judgment of the Criminal Court (4 October 2007), as that was the date when the violation arose. It also observed that the applicant ’ s appeal had lasted four years. It rejected the applicant ’ s claim that the time should run from the date of his arrest as the time spent in pre ‑ trial detention was not time spent expiating his sentence (which had not yet been imposed) and thus was not time during which the applicant had suffered due to his irreducible life-sentence. Further, the applicant ’ s case did not concern exceptional circumstances allowing such time to run from the moment of arrest: i ) the applicant had been found guilty of a hideous crime where two elderly persons had been killed in their own home during a robbery; ii) the sentence of life imprisonment had been meted out despite the jury not having been unanimous as to the applicant ’ s guilt; iii) the harshness of the crime had seriously effected the sentiment of society who expected an appropriate punishment for such acts.

10 . Article 22 of the Criminal Code reads as follows:

“Except in the case of a sentence of imprisonment for life or of imprisonment or detention in default of payment of a fine ( multa or ammenda ), any time prior to conviction and sentence during which the person sentenced is in prison for the offence or offences for which he has been so convicted and sentenced, not being time in prison in execution of a sentence, shall count as part of the term of imprisonment or detention under his sentence; but where he was previously subject to a probation order, an order for conditional discharge or to a suspended sentence in respect of such offence or offences, any such period falling before that order was made or suspended sentence passed shall be disregarded for the purposes of this article:

Provided that where any time prior to conviction as aforesaid has, by virtue of this article, been counted as part of the term of imprisonment or detention under the sentence in respect of that conviction, such time shall not be counted as part of the term of imprisonment or detention under any other sentence.”

11 . Article 493 of the Criminal Code reads as follows:

“After sentencing any person to imprisonment for life, the court may recommend in writing to the Prime Minister within twenty-four hours the minimum period which in its view should elapse before the prisoner is released from prison. Such recommendation shall be made available to the person sentenced, and a copy thereof shall be kept by the registrar.”

12 . In so far as relevant, Article 10 of the Restorative Justice Act, Chapter 516 of the Laws of Malta, enacted by means of Act No. XXI of 2011 Act and amended by Act No. XIII of 2018, on 30 April 2018, reads as follows:

“(1) Subject to the provisions of this Act, parole may only be granted to prisoners serving a sentence of imprisonment of a term of one year or more, irrespective of whether such term results from a single sentence or from a number of sentences that amount to an aggregate of at least one year.

(2) Parole shall also apply with respect to prisoners who have previously served and concluded a prison sentence.

(3) Notwithstanding the provisions of sub-articles (1) and (2) prisoners falling under the following categories shall not be eligible for parole:

....

( g ) prisoners sentenced to life imprisonment.”

For the purposes of the Act “parole” means “the authorisation granted by the Parole Board to a prisoner serving one or more sentences of imprisonment to be released on parole, during a part of his term of imprisonment upon reaching the parole eligibility date, under the supervision of the parole officer and subject to the parole conditions as may be specified in the parole licence”.

COMPLAINT

13 . The applicant complained that his irreducible life sentence was in breach of Article 3 of the Convention.

THE LAW

14 . The applicant complained under Article 3 which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

15 . The applicant felt aggrieved by the decision of the Constitutional Court upholding a violation of Article 3 in so far as it had decided that the applicant could only be eligible to apply for the review of his sentence twenty ‑ five years after the judgment of the Criminal Court (first ‑ instance) finding him guilty. He considered that the twenty ‑ five year period had to start running from the date on which he had been arrested in connection with the charges of which he had been found guilty. He relied on Bo dein v. France (no. 40014/10 , 13 November 2014) where the Court had found no violation in respect of that applicant ’ s possibility to apply for early release after thirty years, which were to be counted from the day of incarceration.

16 . The Court reiterates that the adoption of a measure favourable to the applicant by the domestic authorities will deprive the applicant of victim status only if the violation is acknowledged expressly, or at least in substance, and is subsequently redressed (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178 et seq. and § 193 , ECHR 2006 ‑ V, and Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999 ‑ VII). Whether the redress given is effective will depend, among other things, on the nature of the right alleged to have been breached, the reasons given for the decision and the persistence of the unfavourable consequences for the person concerned after that decision (see Oliari and Others v. Italy , nos. 18766/11 and 36030/11 , § 78, 21 July 2015 ).

17 . In the present case the Court notes that the first criterion, namely acknowledgment of a violation, has been met.

18 . As to the second criterion, the Court notes that the Constitutional Court ordered that the applicant be eligible to apply for a revie w of his sentence within twenty ‑ five years of the judgment finding hi m guilty at first ‑ instance.

19 . The Court notes that it has already had occasion to observe that, having regard to the margin of appreciation which must be accorded to Contracting States in the matters of criminal justice and sentencing, it is not its task to prescribe the form (executive or judicial) which the review of life sentences should take. It further observed that comparative and international law materials showed a clear support for the institution of a dedicated mechanism guaranteeing a review no later than “ twenty ‑ five years after the imposition of a life sentence”, with further periodic reviews thereafter (see Vinter and Others v. the United Kingdom [GC] , nos. 66069/09 and 2 others, § 120, ECHR 2013 (extracts); Murray v. the Netherlands [GC] , no. 10511/10 , § 99, 26 April 2016; and Hutchinson v. the United Kingdom [GC] , no. 57592/08, § 69, 17 January 2017).

20 . The Court considers that, while States may have different points from which to calculate such periods according to their specific domestic systems, there is no reason to doubt that having the period run from the judgment sentencing the applicant to such a punishment, that is the po int at which the life ‑ sentence is imposed ‑ falls within that acceptable standard which refers to “after” the imposition of a life sentence.

21 . As to the case of Bodein , cited above, relied on by the applicant, the Court observes that in that case it ha d noted that a period of thirty ‑ years was beyond the international ly supported standard of twenty ‑ five years after the imposition of a life sentence. However, having determined that under French law, the thirty year period started to run on the date of incarceration, in the circumstances of the applicant in that case, he was eligi ble to apply for release twenty ‑ six years after the pronouncement of his life sentence by the court of appeal (see §§ 61 and 16 of the judgment). In those circumstances, the Court was satisfied, given the margin of appreciation of the State in criminal matters and sentencing, that such a possibility was enough to consider his sentence as reducible.

22 . It follows from the above that, the Court must be satisfied that a shorter period of twenty-five years, which is to run from the more favourable date of the first-inst ance judgment imposing the life ‑ sentence on the applicant, is sufficient to consider his life sentence as reducible.

23 . Thus, the redress given by the Constitutional Court has brought to an end the unfavourable consequences suffered by the applicant and remedied the violation it upheld – the second criterion is therefore also met.

24 . In consequence, the applicant can no longer claim to be a victim of a violation of his Convention right in this regard and the application must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, u nanimously,

Declares the application inadmissible.

Done in English and notified in writing on 12 December 2019 .

Stephen Phillips Georgios A. Serghides Registrar President