Information Note on the Court’s case-law 5

April 1999

T.W. v. Malta [GC] - 25644/94

Judgment 29.4.1999 [GC]

Article 5

Article 5-3

Judge or other officer exercising judicial power

Detainee brought before judge without power to order release: violation

(Extract from press release)

Facts : The applicant, T.W., a United Kingdom national, was born in 1943 and lives in Luqa, Malta. The applicant was arrested on s uspicion of having committed an offence involving sexual acts. He was brought before a magistrate within forty-eight hours and applied for bail. His application was communicated to the Attorney General who opposed it. The bail application was then examined by a different magistrate from the one before whom the applicant had appeared initially. It was refused four days after his arrest. He was released fifteen days later.

The applicant complains of a breach of his right to be brought promptly before a judic ial officer with power to order his release, a right guaranteed under Article 5 § 3 of the European Convention on Human Rights. He also complains that his right to a habeas corpus remedy under Article 5 § 4 was infringed.

Law : The Government’s preliminary objection:  The Court decided to join to the merits the Government’s preliminary objection that the applicant had not exhausted domestic remedies in so far as he had failed to rely on section 137 of the Criminal Code, which constituted along with section 3 53 the legal basis of Malta’s version of the writ of habeas corpus.

Article 5 § 3: The Court reiterated its case-law to the effect that Article 5 § 3 was aimed at ensuring prompt and automatic judicial control of police detention ordered in accordance wit h the provisions of paragraph 1 (c) of Article 5. The judicial officer who exercised this control must actually hear the detained person and take the appropriate decision. The Court stressed that Article 5 § 3 required the judicial officer to consider the merits of the detention. It also considered that the judicial control under Article 5 § 3 could not be made to depend on a previous application by the detained person. Such a requirement would not only change the nature of the safeguard provided for under Article 5 § 3, a safeguard distinct from that in Article 5 § 4, which guaranteed the right to institute proceedings to have the lawfulness of detention reviewed by a court. It might even defeat the purpose of the safeguard under Article 5 § 3 which was to protect the individual from arbitrary detention by ensuring that the act of deprivation of liberty was subject to independent judicial scrutiny. Prompt judicial review of detention was also an important safeguard against ill-treatment of the individual tak en into custody. Arrested persons who had been subjected to such treatment might be incapable of lodging an application asking the judge to review their detention. The same could hold true for other vulnerable categories of arrested persons, such as the me ntally weak or those who did not speak the language of the judicial officer. The Court shared the parties’ view that the applicant’s appearance before a Magistrate the day after his arrest could be regarded as “prompt” for the purposes of Article 5 § 3. Ac cording to the Government, the Magistrate in question had the power to order the applicant’s release of his own motion if the applicant was facing charges that, under domestic law, did not allow for his detention. However, the automatic review required und er Article 5 § 3 went beyond the one ground of lawfulness cited by the Government. The Court considered that it must be sufficiently wide to encompass the various circumstances militating in favour and against detention. The Government argued that the appl icant could have obtained a wider review of the lawfulness of his detention, going beyond the issue of whether the charges allowed for such detention, by lodging an application under section 137 of the Criminal Code. However, the Court considered that comp liance with Article 5 § 3 could not be ensured by making an Article 5 § 4 remedy available. In any event, it was not established that the scope of the review exercised by the Maltese courts under section 137 of the Criminal Code was sufficiently wide to en compass a review of the merits of the detention. As a result, the Court rejected the Government’s preliminary objection.

Moreover, the Court considered that the applicant’s appearance before the Magistrate the day after his arrest was not capable of ensuring compliance with Article 5 § 3 since the Magistrate had no power to order his release. Accordingly, there was a violati on of Article 5 § 3. However, in reaching this conclusion the Court agreed with the Government that the question of bail was a distinct and separate issue that only came into play when the arrest and detention were lawful. As a result, it did not have to a ddress this issue under Article 5 § 3.

Conclusion : violation (unanimous).

Article 5 § 4: The Court noted that the parties had not addressed this issue in the proceedings before it. This being so and having regard also to its conclusion under Article 5 § 3, the Court did not consider it necessary to examine the applicant’s complaint under Article 5 § 4.

Conclusion : not necessary to examine (unanimous).

Article 41: The Court considered that, in the special circumstances of the case, the finding of violation o f Article 5 § 3 constituted in itself just satisfaction for any non-pecuniary damage suffered by the applicant. It awarded the applicant 2,600 Maltese liras for costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Reg istry does not bind the Court.

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