Resolution CM/ ResDH(2007)8 concerning the judgments of the European Court of Human Rights between 29 April 1999 and 9 January 2003 in the cases of Sabeur Ben Ali, Aquilina, T.W. and Kadem against Malta (see Appendix)

(Adopted by the Committee of Ministers on 28 February 2007, at the 987th meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgments of the European Court of Human Rights in the four cases delivered between 29 April 1999 and 9 January 2003 (details of which appear in appendix II to this resolution) and transmitted to the Committee of Ministers once it had become final under Articles 44 and 46 of the Convention;

Recalling that the cases originated in applications against Malta , lodged with the European Commission of Human Rights between 7 July 1994 (Aquilina), 2 November 1994 (T.W.) and 21 February 1997 (Sabeur Ben Ali) under former Article 25 of the Co n vention and one application lodged with the European Court of Human Rights under Article 34 of the Convention on 11 February 2000 (Kadem) and that the Court, seised of the case under Article 5, paragraph 2, of P rotocol No. 11, declared admissible the complaints that, under Maltese law, the applicants could not obtain an automatic review of the reasonableness of the suspicion against them or have the lawfulness of their arrests and detentions reviewed promptly by a court;

Whereas in its judgments the Court unanimously:

- held that there had been a violation of Article 5§3 of the Convention (Aquilina, T.W., Sabeur Ben Ali);

- held that there had been a violation of Article 5§4 of the Convention (Sabeur Ben Ali, Kadem);

- held that the government of the respondent state was to pay the applicants, within three months from the date at which the judgment became final, the amounts of just satisfaction (set out in the appendix to this resolution)

- dismissed the remainder of the applicants ' claim for just satisfa c tion;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of these judgments, having regard to Malta ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by it;

Whereas during the examination of the cases by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as those found in the present judgments; this information appears in appendix I to this resolution;

Having satisfied itself that on the dates indicated in appendix, within the time-limit set, the government of the respondent state had paid the a p plicants the sums provided in these judgments.

Declares, after having examined the information supplied by the Government of Malta , that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution CM/ ResDH(2007)8

Information provided by the Government of Malta during the examination of the cases of Sabeur Ben Ali, Aquilina, T.W. and Kadem

by the Committee of Ministers

Introductory case summary

Case

Application

Judgment date

Defintive judgment date

AQUILINA Joseph

25642/94

29/04/99

29/04/99

KADEM M ' hmed

55263/00

09/01/03

09/04/03

SABEUR BEN ALI Ben Nasr

35892/97

29/06/00

29/09/00

T.W.

25644/94

29/04/99

29/04/99

In the case of Sabeur Ben Ali, the applicant was arrested in Malta on 17 March 1995 for drug-related offences. Although he was brought before the Maltese Court of Magistrates on 19 March 1995 for arraignment, the European Court found that the court had no power to automatically review the merits of his detention or to determine whether there existed a reasonable suspicion against him (violation of Article 5§3). The Court also found that under Maltese law, the applicant had no other means to obtain speedy judicial review of the lawfulness of his continued detention (violation of Article 5§4). The applicant was acquitted of all charges on 5 February 1997 and was released from custody. The same type of violation occurred in the cases of Aquilina (violation of Article 5§3, judgment of 29 June 1999), T.W. (violation of Article 5§3, judgment of 29 April 1999) and Kadem (violation of Article 5§4, judgment of 9 January 2003).

I. P ayment of the just satisfaction and individual measures

a) Details of just satisfaction

Case

Non-pecuniary damage

Costs & expenses

Date of payment

AQUILINA Joseph

3 000,00 MTL

25/06/99

KADEM M ' hmed

5 000,00 €

2 500,00 €

02/07/03

SABEUR BEN ALI Ben Nasr

1 000,00 MTL

900,00 MTL

07/11/00

T.W.

2 600,00 MTL

25/06/99

b) Individual measures

The applicants were all released from detention at the time of the European Court ' s judgment and any economic consequences of the violation established have been compensated by the Court ' s just satisfaction awarded.

II. General measures

At the time of this case, the only explicit habeas corpus provision that existed in Maltese Law was Article 137 of the Criminal Code, which was found to be insufficient by the European Court . The European Court further noted that a constitutional application did not ensure speedy review of the lawfulness of a person ' s detention, either.

The Maltese P arliament by virtue of Act III of 2002 passed several amendments to the Maltese Criminal Code (see Legal Notice 94/2002 for Article 409A, Article 412B, Subsection 2A of Article 525 which entered into force 1 May 2002, and Legal Notice 273/2003 for Article 574A which entered into force 1 January 2004). The amended Criminal Code grants the Court of Magistrates the power to automatically review the merits of any person ' s detention. It also gives all detainees the right to speedy review of the lawfulness of their continued detention. These amendments will prevent similar violations of Article 5§3 and Article 5§4 in the future. All judgments of the European Court against Malta are are habitually disseminated among the competent authorities and publicly available via the website of the Ministry of Justice and Home affairs ( www. mjha.gov.mt/ministry/links.html ) which provides for a direct link to the Court ' s website.