FIRST SECTION

CASE OF SPITERI v. MALTA

(Application no. 43693/20)

JUDGMENT

STRASBOURG

28 April 2022

This judgment is final but it may be subject to editorial revision.

In the case of Spiteri v. Malta,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Krzysztof Wojtyczek, President, Erik Wennerström, Lorraine Schembri Orland, judges, and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 43693/20) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 30 September 2020 by a Maltese national, Mr Patrick Spiteri, born in 1964 and living in Swieqi (“the applicant”) who was represented by Dr I. Refalo, Dr M. Refalo and Dr S. Grech , lawyers practising in Valletta;

the decision to give notice of the complaint concerning the length of criminal proceedings, to the Maltese Government (“the Government”), represented by their Agents, Dr C. Soler, State Advocate, and Dr J. Vella, Advocate at the Office of the State Advocate and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 22 March 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. The case concerns the length of the criminal proceedings against the applicant.

2. In 2001 a Magisterial inquiry into suspected money laundering took place during which the applicant was questioned by the Economic Crimes Unit. In 2008 he was questioned by the police and later charged with forgery and misappropriation of funds which occurred in 2007 and earlier, to the detriment of C. and S. On 29 August 2008 he was brought before the Court of Magistrates, as a court of criminal inquiry and on 10 December 2008 he was committed to trial. Following a number of hearings which were not attended by the applicant, and requests for adjournment by the prosecution, at the end of 2010 evidence started to be collected via letters rogatory with five different jurisdictions. In July 2012 the prosecution declared it had no further evidence to submit. The applicant no longer attended the criminal hearings and in June 2014 it resulted that he had left to the United Kingdom, during which time he was suffering health conditions and considered that he was not fit to return to Malta. Following extradition proceedings, the applicant returned to Malta in May 2017 and as of the next hearing a number of requests were lodged by the applicant mainly in relation to the collection of evidence. Around sixteen hearings took place until May 2019 when the proceedings were suspended sine die pending the outcome of constitutional redress proceedings lodged by the applicant, whereby he complained inter alia , about the length of the criminal proceedings which were still ongoing.

3. By a judgment of 5 March 2020 the Civil Court (First Hall), in its constitutional competence, rejected all the applicant’s claims on the merits. Concerning the length of proceedings, it considered that the starting point for the calculation had to be 2008 as the applicant had not proved that he had been aware that he was being investigated prior to the issuing of the charges against him in 2008. It considered that the delay had to be imputed to him and his departure to the United Kingdom, despite him having been absent on some occasions because of health reasons.

4. By a judgment of 20 July 2020 the Constitutional Court rejected the applicant’s appeal. In relation to the length of the criminal proceedings it considered that the starting point was 2008 as the interrogation in 2001 had nothing to do with the charge imputed to the applicant in 2008. Bearing in mind the behaviour of the parties all throughout, in the Constitutional Court’s view, it had been evident that the applicant had highly contributed to the delay, thus, his complaint was unfounded.

5. The applicant complained that his rights under Article 6 of the Convention had been violated due to the length of criminal proceedings against him.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

6. The Court notes that the applicant’s complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

7. The general principles concerning the length of proceedings have been summarized in Frydlender v. France ([GC], no. 30979/96, § 43, ECHR 2000-VII), and Zarb v. Malta (no. 16631/04, § 34, 4 July 2006).

8. The Court notes that the parties are in dispute about the date of the commencement of the criminal proceedings against the applicant for the purposes of determining their duration.

9. The Court reiterates that in criminal matters, Article 6 of the Convention comes into play as soon as a person is “charged”; this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened (see Eckle v. Germany , 15 July 1982, § 73, Series A no. 51, and O’Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, § 35, ECHR 2007 ‑ III). “Charge”, for the purposes of Article 6 § 1, may be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the [person] has been substantially affected” (see Aleksandr Zaichenko v. Russia , no. 39660/02, § 42, 18 February 2010, and the case-law cited therein).

10. In the Court’s view, even accepting that interaction with C. had been referred to in the money laundering investigation initiated in 2001, it cannot be said that at the time the applicant was notified that he was being investigated in relation to the misappropriation of the funds of C., or that his situation had been substantially affected from that date. A statement by the Attorney General (whereby it was noted that the proceedings against the applicant had indeed come to be as a result of the magisterial injury of 2001) in the context of an appeal application dated 2021 in other proceedings, which was later withdrawn, does not alter that conclusion. This is particularly so given that the 2001 inquiry was not even produced as evidence in the criminal proceedings at issue in the present case. It follows that the starting point of the criminal proceedings must be taken to be 15 May 2008, when the applicant was first questioned in relation to the allegations that form the subject matter of the criminal case complained of. The proceedings are today still pending, at first instance, nearly thirteen years later.

11. Having examined the circumstances of the case and the minutes of the hearings which took place, as well as the submissions of the parties, the Court considers as follows:

Albeit the applicant is to blame for various absences in the beginning of the proceedings, there is a delay of at least a year attributable to the authorities in the preparation of the letters rogatory which were only sent out at the end of 2010. However, there was no particular delay in the collection of letters rogatory thereafter, at which point the prosecution closed its evidence in 2012 and it was for the applicant to start his defence.

The applicant was then to blame for a five-year delay while he moved to the United Kingdom, as a result of which proceedings had to be repeatedly adjourned in his absence.

After the applicant’s return in May 2017, following an extradition request, various adjournments were due to the prosecution and little went on until April 2018. At that stage, the court having decided to discontinue the charges in relation to the offence to the detriment of S. (which had not been included in the extradition request), and to put aside the related evidence, the parties agreed for the next sitting to be held after five months to allow for the filtering of evidence. Nevertheless, further adjournments took place thereafter, also on request of the prosecution, and little went on again until April 2019 when the applicant instituted constitutional redress proceedings.

Various adjournments were then put in place upon the applicant’s requests pending the outcome of the constitutional redress proceedings decided in 2020. The Court considers that the applicant cannot be blamed for having made use of his right to institute constitutional proceedings complaining about the fairness of his criminal proceedings before they came to an end, as allowed by domestic law. It is also true that the judicial authorities remain responsible for the conduct of the proceedings before them and ought to weigh the advantages of continued adjournments pending the outcome of other cases against the requirement of promptness (see, for example, Frendo Randon and Others v. Malta , no. 2226/10, § 68, 22 November 2011). However, the constitutional redress proceedings came to an end in a timely manner and it was thus reasonable in such a context for the court of criminal jurisdiction to allow the adjournments requested by the applicant. It follows that in this period there was no delay which can be attributed to the authorities.

Subsequent to the Constitutional Court judgment, rather than starting to cross-examine relevant witnesses in relation to the remaining charges so to eventually start presenting his evidence, the applicant continued to lodge requests in relation to matters - some of which had already been determined by the Constitutional Court - and on at least two occasions asked for an adjournment or extension of time to make submissions. From their side both the prosecution and the court were cause of adjournments too.

12. Bearing in mind the above, the Court has no doubt that, as argued by the Government, the applicant has put in place a number of delaying tactics which go beyond his mere procedural and defence rights, as is apparent also from the observations to this Court wherein he repeatedly referred to complaints declared inadmissible or in any event falling outside the scope of the complaint communicated to the Government. Ultimately, proceedings were indeed significantly compounded and delayed as a result of the applicant’s prolonged absence and the necessity to have him repatriated via extradition proceedings, and a series of connected problems which came to be only as a result of the applicant’s choice to leave Malta during his criminal proceedings. Nevertheless, the Court cannot ignore a delay of around three years imputable to the authorities, delay which cannot be explained by the complexity of the case, as evidenced by the fact that the prosecution had already closed its evidence in 2012. Thus, even accepting that financial crimes tend to be more complex to prosecute, especially since the prosecuting authorities may require the assistance of authorities in foreign jurisdictions (see C.P. and Others v. France , no. 36009/97, § 30, 1 August 2000), this was not the cause of the delay in the present case.

13. There has accordingly been a violation of Article 6 § 1 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

14. The applicant claimed 160,000 euros (EUR) in respect of non ‑ pecuniary damage and EUR 34,479.37 in respect of costs and expenses incurred both before the domestic courts in relation to his criminal proceedings and constitutional redress proceedings, and before the Court (EUR 3,303).

15. The Government considered all claims to be excessive and costs to be unwarranted.

16. In the present case, the Court has noted above that the applicant’s conduct contributed significantly to the delay in the proceedings which are today still at first instance. The Government’s submissions as to the deliberate nature of the delaying tactics are supported by the domestic courts’ findings in the present case. In these circumstances, making an assessment on an equitable basis, the Court considers that a finding of a violation is sufficient just satisfaction (see, for example, King v. the United Kingdom , no. 13881/02, § 54, 16 November 2004).

17. Having regard to the documents in its possession, and the fact that the costs related to the criminal proceedings bear no connection with the violation found, and that most of the applicant’s claims before the constitutional jurisdictions as well as before this Court were rejected, the Court considers it reasonable to award EUR 2,000 covering costs under all heads. As requested, the amount awarded is to be paid directly into the bank account designated by the applicant’s representatives.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicant, directly into the bank account designated by the applicant’s representatives, within three months, EUR 2,000 (two thousand euros) plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 28 April 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Krzysztof Wojtyczek Deputy Registrar President