Communicated on 27 January 2016

FOURTH SECTION

Application no. 54335/14 Kenneth GAFA against Malta lodged on 25 July 2014

STATEMENT OF FACTS

The applicant, Mr Kenneth Gaf à , is a Maltese national, who was born in 1972 and lives in Marsa . He is represented before the Court by Dr J. Brincat , a lawyer practising in Malta.

A. The circumstances of the case

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

1. Background to the case

On 11 December 2010 the applicant was arrested by the police on suspicion of having murdered his former partner.

On 13 December 2010 he was charged before the Court of Magistrates, as a Court of Criminal Inquiry, with inter alia , wilful homicide. He was remanded in custody thereafter.

On 24 March 2011 eight witnesses gave evidence during criminal proceedings before the Court of Magistrates. An expert was appointed to examine the mobile phone of witness Ms S.S. and to exhibit the call logs and short message service ( sms ) profiles. On the same day the acts of the proceedings were referred to the Attorney General (known as rinviju under Maltese law) and proceedings were adjourned to 5 May 2011.

On 5 May 2011 eight more witnesses gave evidence including the two experts who had conducted the autopsy and two ballistics experts.

On the same day the applicant requested the Court of Magistrates to grant him bail. The Attorney General opposed the request on the basis of the following grounds: ( i ) the principal witnesses had not yet given evidence, thus, there was a real danger of tampering with the collection of evidence; (ii) there was a real danger for the security of the victim ’ s daughter; (iii) the applicant had an unreliable and refractory character (he was also a recidivist); (iv) the offences with which the applicant was charged were serious and of a sensitive nature for the victim ’ s family; (v) the applicant did not have a fixed job and was unemployed and he was not in a position to provide a guarantee or a sufficient security. Relying on Article 575 of the Criminal Code, Chapter 9 of the Laws of Malta, the Attorney General argued that the applicant was not in a position to adhere to all the conditions which normally go with bail.

Proceedings were adjourned to 19 May 2011.

By a decree of 10 May 2011, the court rejected the applicant ’ s request having noted the Attorney General ’ s reply.

On an unspecified date the applicant again requested bail.

By a decree of 15 May 2011, the court rejected the applicant ’ s request, holding that the applicant was not able to provide the necessary guarantees as required by law.

On 28 June 2011 the applicant filed another application requesting bail. The Attorney General opposed the granting of bail on the same grounds previously invoked. He further noted that measures had been taken against the applicant who had threatened prison officers. In the Attorney General ’ s view, this showed that the applicant was not able to abide by rules and respect the authorities. The Attorney General also argued that the applicant was prone to abscond from Malta, noting that he had been absent from Malta in the past since he had debts with several persons including the victim ’ s father.

By a decree of 15 July 2011 the court rejected the applicant ’ s request, noting that the applicant could not provide the necessary guarantees as required by law.

On 24 August 2011 the applicant again requested bail. The Attorney General objected on the basis of the same grounds previously relied upon.

By a decree of 26 August 2011 the court, after having considered the Attorney General ’ s position against the granting of bail, rejected the applicant ’ s request.

On 29 September 2011 the applicant filed another application for bail. On an unspecified date the court rejected the applicant ’ s request noting that the granting of bail was premature since police investigations had not been concluded and, therefore, there was a possibility of tampering with the collection of evidence.

On 6 October 2011 another sitting was held before the Court of Magistrates as a court of criminal inquiry where two witnesses gave evidence.

On an unspecified date the applicant lodged another request for bail. By a decree of 19 October 2011 the court again rejected the applicant ’ s request, noting that the granting of bail was premature since police investigations had not been concluded and, therefore, there was a possibility of tampering with the collection of evidence.

On 28 November 2011 the applicant once again requested the court to grant him bail. The Attorney General objected on the basis of the same reasons mentioned above.

By a decree of 5 December 2011 the court rejected the applicant ’ s request since police investigations were not yet concluded and therefore there was a possibility of tampering with the collection of evidence. The court also noted that the offence with which the applicant was charged was a grave one.

In the meantime criminal proceedings continued and on 1 December 2011, five more witnesses gave evidence.

On 16 January 2012 the applicant filed another application requesting bail. The Attorney General reiterated his objections.

By a decree of 20 January 2012 the court rejected the applicant ’ s request after having considered all the circumstances of the case. In particular it noted the nature of the offences with which the applicant was charged and the applicable punishment in case of a finding of guilt, as well as the fact that there was still a witness who had to give evidence and who could not be produced earlier because of criminal proceedings against the same witness. Thus, the court was not satisfied that there would not be a serious danger of tampering with the collection of evidence if the applicant was granted bail.

On 7 February 2012 the applicant filed a further application requesting bail. The Attorney General reiterated his objections.

By a decree of 14 February 2012 the court rejected the applicant ’ s request. While considering that the principal witness had given evidence, thus, this was no longer a reason to justify the rejection of the applicant ’ s request for bail, it accepted the Attorney General ’ s concerns on the security of the victim ’ s daughter and the seriousness of the offence with which the applicant was charged as reasons to continue denying bail. Furthermore, the circumstances of the case, namely, the nature of the offence in question, the danger of tampering with evidence and the risk that the applicant could commit further offences were sufficient for the applicant to be kept in detention on remand since he was not in a position to provide sufficient guarantees as required by law.

On 28 February 2012 the applicant filed a further bail application. The Attorney General objected on the same lines mentioned above.

By a decree of 1 March 2012 the court rejected the applicant ’ s request, having noted the nature and gravity of the offence with which the applicant was charged and considering that it was not convinced that the applicant could provide sufficient guarantees as requested by law. In particular, it was not satisfied that there would not be a serious danger of hampering the proper administration of justice as provided under Articles 575(1) (c )( d)(e) of the Criminal Code (cited below).

2. First round of constitutional redress proceedings

On 10 April 2012 the applicant instituted constitutional redress proceedings before the Civil Court (First Hall) in its constitutional competence. He complained of a violation of Article 5 § 3 of the Convention in so far as he had been detained for more than fifteen months since his arrest.

By a judgment of 27 June 2012 the Civil Court (First Hall) rejected the applicant ’ s claims.

It referred to the Court ’ s judgment in the names of Labita v. Italy ([GC], no. 26772/95, §§ 152 ‑ 153, ECHR 2000 ‑ IV) concerning the general principles relevant to the case. Having examined the evidence tendered during criminal proceedings by Ms S.S., a relative of the victim, and Ms C.S., the victim ’ s daughter, the court of constitutional competence considered that, in the present case, the protection of the victim ’ s daughter was always one of the principal motivations for the courts of criminal justice to reject the applicant ’ s bail requests. Such evidence as well as the applicant ’ s personality did not reassure the domestic courts that the applicant was in a position to abide by the conditions set in the law. Having examined the records of proceedings, the Civil Court (First Hall) further held that national authorities had exercised special diligence in the conduct of proceedings to avoid stretching uselessly the duration of the applicant ’ s detention.

On an unspecified date the applicant appealed against the judgment delivered by the Civil Court (First Hall).

By a judgment of 23 November 2012 the Constitutional Court rejected the applicant ’ s appeal and confirmed the appealed judgment.

It examined in detail the reasons for detention, as submitted by the Attorney General, to determine whether they were sufficient to justify the applicant ’ s continued detention and held as follows:

On the Attorney General ’ s first reason, namely, that the principal witnesses had not yet given evidence, the Constitutional Court noted that the last prosecution ’ s witness had given evidence on 14 February 2012 before the Court of Magistrates. Thus, this was no longer a valid reason for the applicant ’ s continued detention after the abovementioned date. It also dismissed, as being unsubstantiated, the Attorney General ’ s submission that the applicant had an unreliable and refractory character as well as the allegation that he was a recidivist. Similarly, the allegation that steps were taken against the applicant in prison for having threatened prison officials was neither proved in criminal proceedings nor in the present constitutional redress proceedings. In any event, after a lapse of time, this reason alone could no longer remain sufficient and would need to be related to other reasons to justify continued detention. It had also not been proven that the applicant was absent from Malta because of money he owed to people and thus this could not be relied on to deny bail.

Further, the court held that the fact that the applicant had no fixed job and that he was unemployed was not in itself a sufficient reason to deny bail under a guarantee. However, it could with other reasons, justify a denial of bail, for a certain time - depending on the nature of the other reasons.

However, the court held that the fear of tampering with evidence was real when one considered what the applicant could face if he was convicted, particularly when it transpired from the evidence that he had intimidated (in the past) the victim, her daughter and other persons. While it was true that this danger would diminish with the lapse of time, this had to be analysed with reference to what the accused was risking. In the present case, when one considered that the applicant had been detained for fifteen months in connection with a criminal offence that was punishable with life imprisonment, the danger of tampering with evidence had not disappeared, and it was thus justified to deny him bail.

3. The granting of bail subject to conditions and the subsequent release

After the applicant had been held in custody for the maximum period of detention allowed by law, he became entitled to be granted bail in accordance with Article 575(6 )( a)(iii) of the Criminal Code (see relevant domestic law).

Consequently, by a decree of 22 August 2012, the Court of Magistrates granted the applicant bail subject to the following conditions: that he appears for criminal proceedings; that he does not go abroad or abscond; that he does not contact or approach, directly nor indirectly, witnesses for the prosecution; that he does not commit a crime of a voluntary nature whilst released on bail; that he call at the District Police Station everyday between eight a.m. and eight p.m.; that he be home not later than ten p.m. and that he does not leave the home before six a.m. of the following day; that he inform the Police of any change of address within twelve hours of such a change; that he deposit by way of security the amount of 15,000 euros (EUR) in the court registry; and that he undertake a personal guarantee of EUR 25,000. In the event of any bail condition being breached, the entire amount of EUR 40,000 would be forfeited in favour of the State.

On 6 September 2012 the applicant filed an application requesting the court to reduce the amount to be deposited by him. He explained that since he had been detained for more than twenty months he was unemployed and did not earn a salary, thus he could not pay the relevant amount. He submitted two documents showing that he received unemployment benefits in the sums of EUR 1,262.22 and EUR 1,573.34 in 2009 and 2010 respectively and offered to explain his financial situation ( if necessary with further documentary evidence) during an oral hearing.

On an unspecified date, the court rejected the applicant ’ s request ( the document has not been provided to the court). From the Constitutional Court ’ s recapitulation of the relevant facts in the below mentioned judgment, it appears that the rejection was a result of the court ’ s consideration of the seriousness of the crime and the potential punishment.

On 9 October 2012 the applicant filed another application requesting the court to reduce the amount of the deposit. He complained that although he had been in detention for twenty two months, and was entitled to bail, he had nevertheless remained in detention since he (and his family) could not afford to pay such an excessive amount in deposit.

By a decree of 18 October 2012, the court rejected the applicant ’ s request, without giving any reasons.

On 4 December 2012 the applicant filed another application requesting the court to reduce the amount that he had to deposit.

On an unspecified date (possibly 7 December 2012) the court rejected the applicant ’ s request ( the document has not been provided to the court). From the Constitutional Court ’ s recapitulation of the relevant facts, it appears that the rejection was a result of the court ’ s consideration of the seriousness of the crime and the potential punishment.

On 29 January 2013 the applicant filed yet another application requesting that the amount of deposit be reduced. He noted that he had been in detention for another five months since he was granted bail, and yet he was still not in a position to benefit from such bail since he could not pay such deposit.

By a decree of 5 February 2013 the court, having considered the parties submissions, as well as its decree of 7 December 2012, was of the view that it should not alter its consideration made in the latter decision. It, thus, rejected the applicant ’ s request.

It transpires from the Constitutional Court ’ s recapitulation of the relevant facts (relevant documents concerning the bail request and relevant decision were not submitted to the Court) that on 22 July 2013 the applicant requested the court to accept his mother Ms J.G. as his surety and that on an unspecified date the court accepted that the applicant ’ s mother stand as surety by means of a hypothec on a property she owned together with other relatives. It is unclear whether the court removed the deposit condition.

Subsequently on 6 August 2013 the applicant was effectively released from custody after thirty-two months of pre-trial detention.

4. Second round of constitutional redress proceedings

On 6 February 2013 the applicant instituted a new set of constitutional redress proceedings, complaining of a violation of Article 5 § 3 of the Convention in connection with “exorbitant sum” requested (in particular reference to the sum set as deposit) which did not allow him to effectively enjoy bail.

By a judgment of 3 July 2013 the Civil Court (First Hall) rejected the applicant ’ s claims.

It held that when a court accepted that an applicant had to be granted bail, it had to establish the proper conditions which the applicant had to satisfy to be released and yet appear for court proceedings. If the guarantees included the deposit of a sum of money, such pecuniary condition had to be considered by reference to the person and the accused ’ s means as well as his relation with the person who would act as his surety. The court referred to the Court ’ s judgment of Iwanczuk v. Poland (no. 25196/94, § 66, 15 November 2011) where it had been held that the accused whom the judicial authorities declared themselves prepared to release on bail must faithfully furnish sufficient information, that can be checked if need be, about the amount of bail to be fixed. The court noted that the applicant did not satisfy this obligation. It was his duty to provide the courts with information on his income, savings and list his assets. Nevertheless, the applicant had solely provided copies of self-assessment forms for purposes of income tax for the years between 1998 and 2011. According to the court, if an applicant argued that the deposit was too high, he had to show the court what he could afford by providing a list of his assets and property, even if this meant that he had to conduct researches within the public registry and provide the relevant documentation. In its view an applicant had to show not only that he did not have the necessary means to deposit the sum requested but also that he was in an objective impossibility of finding the necessary means. He further had to show that he was unable to find persons who offered to act as surety. It was only when all this was shown that an applicant would have satisfied his duty to furnish sufficient information, thus enabling the court to make an objective assessment.

In the court ’ s view, in the present case, bearing in mind the seriousness of the crime and the potential punishment, the applicant had not brought enough evidence before the courts of criminal judicature to substantiate his claim that those courts had imposed excessive conditions (including that referring to the amount of deposit). It further noted that the constitutional court had not been convinced that there would be no tampering with evidence. Indeed even though the collection of evidence had come to an end, one had to guarantee that the evidence remained intact and thus relevant guarantees were necessary.

The applicant appealed against this judgment to the Constitutional Court.

By a judgment of 31 January 2014, the Constitutional Court rejected the applicant ’ s appeal and confirmed the judgment of the first court.

The Constitutional Court referred to its judgment The Police v Austine Eze and Osita Anagboso Obi , of 25 October 2013) where it had held that there must be proportionality between the amount to be deposited by the applicant for his release on bail and his financial circumstances. The level of bail set out should not be too high and it should ensure the presence of the accused. It also made reference to the Court ’ s judgment in Mangouras v. Spain ([GC], no. 12050/04, § 79, ECHR 2010) as well as the Constitutional Court ’ s judgment Salvatore Gauci v. Attorney General , of 31 July 1998, where it had been held that in establishing the amount to be deposited as security, the court must also consider other circumstances such as the seriousness of the offence and the danger to society.

The Constitutional Court held that the onus of proving that the amount of deposit was too high for the applicant when considering his financial means lay with the applicant himself. An applicant must provide information to the court on his financial situation and on the real possibility of finding a surety able to guarantee the observance of the conditions imposed. In the present case, the Constitutional Court held that the latter possibility had not been contemplated by the applicant and it was only after various requests to have the amount reduced that he eventually brought his mother to act as a surety. It noted that although the applicant ’ s mother did not own the tenement she had used for the purposes of the guarantee, it was already in her possession for a period of time before the last application for the reduction of the amount was filed. Thus, the applicant could not argue that he could not have taken this course of action before. Although the applicant relied on the Court ’ s judgment of Iwanczuk v. Poland (no. 25196/94, 15 November 2011), where a violation had been found on the basis that it took four months for the Polish authorities to adjust the conditions for bail, the Constitutional Court held that (even if this was the case), the applicant – who was legally represented – had not explored all avenues to satisfy the courts with an adequate guarantee for the observance of the conditions of bail. No explanation as to why he only obtained a guarantee at a subsequent stage was provided by the applicant.

Noting that the applicant had stated that at times he worked as a bus driver and as a horse trainer, apart from other activities, the Constitutional Court distinguished the applicant ’ s case from that of a person who was living on relief. The fact that the applicant had at times worked and had a salary made the need to provide information to the court on his means more relevant.

On the fixing of the amount of the deposit, the Constitutional Court referred to Article 576 of the Criminal Code (cited below) which provided the factors to be considered for this purpose. Under Maltese law these included the seriousness of the offence and the applicable punishment. The court considered that although the law also referred to the financial situation of the person accused, this factor was not to be taken in isolation – It was for the court fixing the amount of deposit to consider all the factors taken together and not separately. In the present case bearing in mind those factors, the amount of deposit of EUR 15,000 was justified especially since the law provided for the opportunity to provide a surety – a course of action subsequently undertaken by the applicant.

In the Constitutional Court ’ s view the criminal courts ’ concern that the applicant did not give the necessary guarantees that there would not be any tampering with evidence, subsisted throughout the whole criminal proceedings.

5 . Other relevant information

By the date of lodging of the application, 28 July 2014, the bill of indictment against the applicant had not yet been issued.

B. Relevant domestic law

The Criminal Code

Article 575 of the Criminal Code reads as follows:

“ (1) Saving the provisions of article 574(2), in the case of -

( i ) a person accused of any crime against the safety of the Government, or

(ii) a person accused of any crime liable to the punishment of imprisonment for life, the court may grant bail, only if, after taking into consideration all the circumstances of the case, the nature and seriousness of the offence, the character, antecedents, associations and community ties of the accused, as well as any other matter which appears to be relevant, it is satisfied that there is no danger that the accused if released on bail -

( a ) will not appear when ordered by the authority specified in the bail bond; or

( b ) will abscond or leave Malta; or

( c ) will not observe any of the conditions which the court would consider proper to impose in its decree granting bail; or

( d ) will interfere or attempt to interfere with witnesses or otherwise obstruct or attempt to obstruct the course of justice in relation to himself or to any other person; or

( e ) will commit any other offence.

...

(5) Where in the case of a person accused of a crime in respect of which the Court of Magistrates has proceeded to the necessary inquiry, the Attorney General has not either -

( a ) filed the indictment, or

( b ) sent the accused to be tried by the Court of Magistrates as provided in paragraph of article 370(3 )( a ) or in article 433(5) or in similar provisions in any other law within the terms specified in subarticle (6), to run from the day on which the person accused is brought before the said court, or from the day on which he is arrested as provided in article 397(5), that person shall be granted bail.

(6) ( a ) The terms referred to in the preceding subarticle are:

(iii) twenty months in the case of a crime liable to the punishment of imprisonment of nine years or more. ”

Article 576, dealing with the amount of security, provides as follows:

“ The amount of the security shall be fixed within the limits established by law, regard being had to the condition of the accused person, the nature and quality of the offence, and the term of the punishment to which it is liable.”

COMPLAINT

The applicant complains under Article 5 § 3 of the Convention that he was detained in remand for an unreasonable amount of time due to the excessive amount of deposit that he was ordered to pay, as one of the conditions to be released on bail.

QUESTIONS TO THE PARTIES

1. Were the conditions imposed on the applicant to ensure his appearance at the trial in conformity with the requirements of Article 5 § 3 of the Convention? In particular, were the financial guarantees requested of the applicant disproportionate?

2. Have the competent national authorities displayed “special diligence” in the conduct of the proceedings?

3. The Government should submit all the bail requests submitted by the applicant following the decision of 22 August 2012 until his release and the relevant decisions, as well as details about the entirety of the criminal proceedings in particular highlighting the relevant timelines, the number of hearings and what transpired at each hearing. The minutes of each hearing should also be submitted.