Communicated on 8 December 2015

FOURTH SECTION

Application no. 22411/14 Nelson ARIAS MENA against Malta lodged on 29 April 2014

STATEMENT OF FACTS

The applicant, Mr Nelson Arias Mena, is a Dutch national, who was born in 1975. At the time of the introduction of the application, the applicant was detained in Corradino Correctional Facility, Paola, 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

The applicant was arraigned before the Court of Magistrates, as a Court of Criminal Inquiry, on 4 November 2008. He was charged with conspiracy to sell and deal in dangerous drugs. Upon arraignment, the applicant pleaded not guilty to the charges against him.

On the same day, the applicant requested bail, to which the prosecution objected. The Court of Magistrates denied the bail request on the following grounds: the nature of the offence, the danger of tampering with the evidence and the fact that the applicant had no fixed address, nor any ties with Malta, consequently there was a fear that he would abscond. He was thus remanded in custody.

On 18 November 2008 the Court of Magistrates as a Court of Criminal Inquiry found that there were sufficient grounds to commit the applicant for trial. It referred the procès-verbal to the Attorney General according to Maltese national law.

The Attorney General referred the inquiry back to the Court of Magistrates, requesting it to hear witnesses that he had indicated. The hearing of these witnesses, together with other witnesses, came to an end on 10 October 2009, after a number of referrals by the Attorney General. On the same day, the police prosecuting officer declared that the prosecution rested its case. Nevertheless, on 16 December 2009, the Attorney General referred the inquiry to the Court of Magistrates, with a new list of witnesses and queries. The last witness on the list gave testimony on 19 January 2011. From 19 January 2011 until 14 October 2011, the prosecution did not bring forward any evidence and on the last mentioned date the prosecution declared to rest its case.

During this period more than twenty-five sittings were held before the Court of Magistrates, some of which had to be adjourned because the applicant was not assisted by an interpreter or no evidence or little evidence was brought by the prosecution.

On 14 October 2011 the applicant raised two constitutional complaints, namely his continued detention for twenty consecutive months, as his bail request had been refused, and the unjustified delay in the tendering of evidence by the prosecution.

On 18 October 2011, the Court of Magistrates referred the constitutional complaints to the constitutional jurisdiction and granted the applicant bail subject to certain condition(s), namely a third-party surety to the amount of €25,000.

The applicant was unable to find such a third-party and, thus, remained in custody.

2. Constitutional redress proceedings

(a) Proceedings before the Civil Court (First Hall) in its constitutional competence

By a judgment of 29 February 2012 the Civil Court (First Hall) in its constitutional competence, held that the applicant had suffered a violation of his right under Article 5 § 3 since his continued detention was unreasonable and excessive and in violation of domestic law (Articles 575(5) and 575(6) of the Criminal Code, see relevant domestic law below).

The court found that although the constitutional reference was unclear and had not specified any provision, it would consider the relevant provisions namely Article 5 § 3 in conjunction with Article 6 § 1 of the Convention, only under the former provision since the alleged violations could be summed up as follows: the unjustified length of time taken by the prosecution to conclude their evidence and the prolonged custody of the applicant without the benefit of bail.

The court rejected the defendant ’ s objection that the applicant had failed to make any further bail requests. It noted that twenty-three months elapsed from the date of the applicant ’ s arraignment till his bail request was acceded to, time during which he remained in custody. This duration rendered his arrest illegal and therefore unjustified taking into account the maximum period of time during which an arrested person could be kept in custody under domestic law (depending on the nature of the punishment tied to the offence with which the arrested person is charged). It did not take into account the fact that the applicant was still in custody at the date of judgment since, in the court ’ s view, his continued detention following the Court of Magistrates ’ decree of 18 October 2011 was a consequence of other matters not relevant to the constitutional reference at issue, and over which the parties were at liberty to take available remedial action.

Noting the reasons for the refusal of the Court of Magistrates to grant bail on 4 November 2008 it considered that even though these reasons might have had a certain weight at the time of arraignment they lost importance with the passage of time, and the evidence tendered did not sustain the necessity of the applicant ’ s detention for such a long period. This was even more so taking into account the manner in which the evidence was brought forward by the prosecution. It noted that the nature of the charges and the lack of any connection with Malta could not be considered as a justification for the prolonged detention of an arrested person especially where, as in this case, there was no evidence to show that the arrested person was in any way a threat to justice. The persistence of reasonable suspicion that the person arrested had committed an offence was a sine qua non for the validity of the continued detention, but, after a certain lapse of time, it no longer sufficed.

It further noted, under Article 6 § 1, in conjunction with Article 5 § 3, that the length of time taken by the prosecution to conclude its case at inquiry stage was unjustified. Indeed few witnesses were brought during the twenty-three months it took the prosecution to conclude its case and there were significant gaps of time wherein the prosecution brought little or no evidence and no diligent effort had been shown by the prosecution to conclude its case within a reasonable time. It awarded the applicant €1,500 euros (“EUR”) in non-pecuniary damage.

(b) Appeal proceedings before the Constitutional Court

On 12 March 2012, the Attorney General and the Commissioner of Police appealed against the first-instance judgment of the constitutional jurisdiction.

By a judgment of 28 September 2012 the Constitutional Court varied the first-instance judgment in so far as it confirmed the violation of Article 5 § 3 (in part) but annulled the award of compensation.

The Constitutional Court rejected the Government ’ s first plea, that the applicant had an ordinary remedy namely, lodging a bail request. It noted that when a constitutional issue came before it by way of a reference by a referring court (as opposed to a constitutional issue that came before it directly by means of an application by a complaining party), it had no discretion to decline giving a reply to the questions referred to it.

The Constitutional Court also rejected the Government ’ s second plea, which concerned the merits of the case. It disagreed with the first-instance court as to the latter ’ s finding that the applicant ’ s detention without bail in excess of twenty months rendered his arrest illegal ( sic. ). In the Constitutional Court ’ s view, that continued detention would have become illegal only had a request for bail been made and denied. However, it had not been the case. Nevertheless, the Constitutional Court held that it remained up to the public authorities to ensure that a person ’ s continued detention was at all times in conformity with Article 5. Thus, it considered that the applicant ’ s failure to request bail as required by the Criminal Code was an irrelevant consideration for the purpose of a determination on whether his current detention was in conformity with the said Article 5. It noted however that such a consideration could have a bearing on the nature of the remedy to be awarded in the event of a violation.

The Constitutional Court also rejected the appellants ’ third plea that the allegation of a violation of Article 6 was premature, as well as a fourth plea on the merits. It however upheld the appellants ’ fifth plea, given that as a rule, whenever a constitutional reference was made to the Civil Court (First Hall) under Article 46(3) of the Constitution of Malta, its function was circumscribed by the terms of the reference made to it. The terms of reference made in the present case had not extended to the liquidation and order to pay compensation, thus when the first-court awarded the sum of €1,500 by way of compensation, it went beyond the limits of its competence as delineated by the terms of reference.

3. Continuation of the criminal proceedings

Pending the above constitutional proceedings, on an unspecified date before March 2012 the Attorney General issued a bill of indictment for the applicant to be tried before the Criminal Court.

On 7 March 2012, pending proceedings before the Criminal Court, the applicant requested the court to alter the bail conditions, which he was unable to fulfil and which caused him to remain in detention notwithstanding the Court of Magistrates ’ decree of 18 October 2011.

The applicant did not submit to the Court the decision of the Criminal Court, however, from the documentation he provided it appears that until April 2014 the applicant was still in detention and proceedings were still pending.

B. Relevant domestic law

1. The Criminal Code

Article 401 of the Criminal Code, regarding the terms for the conclusion of an inquiry, reads:

“ (1) The inquiry shall be concluded within the term of one month which may, upon good cause being shown, be extended by the President of Malta for further periods each of one month, each such extension being made upon a demand in writing by the court:

Provided that the said term shall not in the aggregate be so extended to more than three months:

Provided further that unless bail has been granted, the accused shall be brought before the court at least once every fifteen days in order that the court may decide whether he should again be remanded in custody.

(2) On the conclusion of the inquiry, the court shall decide whether there are or not sufficient grounds for committing the accused for trial on indictment. In the first case, the court shall commit the accused for trial by the Criminal Court, and, in the second case, it shall order his discharge.

(3) In either case, the court shall order the record of the inquiry, together with all the exhibits in the case, to be, within three working days, transmitted to the Attorney General.

(3A) Where the court has committed the accused for trial by the Criminal Court the court shall, besides giving the order mentioned in subarticle (3), adjourn the case to another date, being a date not earlier than one month but not later than six weeks from the date of the adjournment. The court shall also adjourn the case as aforesaid after having received back from the Attorney General the record of the inquiry and before returning the record to the Attorney General in terms of any provision of this Code.”

In so far as relevant Article 405 of the Criminal Code reads as follows:

“(1) After the committal of the accused for trial, and before the filing of the indictment, the court shall, upon the demand in writing of the Attorney General, further examine any witness previously heard or examine any new witness.

...

(5) The provisions of the preceding subarticles of this article shall apply in the case of witnesses whom the accused may wish to examine or re-examine. ...”

Article 432 of the Criminal Code, concerning the terms for the filing of the indictment, provides:

“(1) The Attorney General shall be allowed the term of one month for the filing of the indictment, to run from the day of the receipt of the record referred to in the last preceding article. The said term shall, on the demand of the Attorney General, be extended by the court to an additional period of fifteen days, and, on the expiration of this other period, by the President of Malta to a further additional period of fifteen days, and, where the matter is such that the determination of the true nature of the offence necessarily depends upon the lapse of a longer period of time, to such longer period:

Provided, however, that where such longer period extends beyond forty days, the accused shall have the right to be released on bail.

(2) If the record of inquiry is found to be defective through the non-observance of any of the provisions of this Code or of any other law relating to such inquiry, the Attorney General may send back the record to the court from which it was received, together with a demand in writing that the court proceed afresh with the inquiry or that the record be rectified, according to circumstances, pointing out the defect and the relative provisions of this Code or of such other law.

(3) The court shall, within the term of five working days to run from the day on which the record was sent back as aforesaid, (which term may, upon a demand in writing by the court and on a just cause being shown, be extended by the President of Malta to a further period of five working days), conclude the fresh inquiry or rectify the record, and shall send the same to the Attorney General; and in such case the term for filing the indictment shall commence to run from the day on which the Attorney General shall have received the record of the fresh inquiry or the record as rectified.”

In so far as relevant, Article 435 of the Criminal Code reads as follows:

“(1) It shall be lawful for the Attorney General to collect and produce further evidence besides that resulting from the inquiry:

Provided that he may not include in the indictment any charge for any offence, not founded on the said inquiry.”

Article 574 (1) and 574A of the Criminal Code (Chapter 9 of the Laws of Malta), in so far as relevant, read as follows:

Article 574

“ (1) Any person charged or accused who is in custody for any crime or contravention may, on application or as provided in article 574A, be granted temporary release from custody, upon giving sufficient security to appear at the proceedings at the appointed time and place under such conditions as the court may consider proper to impose in the decree granting bail which decree shall in each case be served on the person charged or accused.”

Article 574A

“(1) ... in the case of -

(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 appear 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.

...

(4) Bail shall always be granted in the case referred to in the proviso to article 432(1).

(4A) Where the Court of Magistrates, whether as a court of criminal judicature or as a court of criminal inquiry, grants bail to the person in custody or subsequently amends the bail conditions, the decision of the court to that effect shall be served on the Attorney General by not later than the next working day and the Attorney General may apply to the Criminal Court to obtain the rearrest and continued detention of the person so released or to amend the conditions, including the amount of bail, that may have been determined by the Court of Magistrates.

(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 ... 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.

( b ) The terms mentioned in paragraph ( a ) shall be held in abeyance for the corresponding period during which the terms referred to in articles 401, 407 and in article 432(3) are held in abeyance for any of the reasons mentioned in article 402(1) and (2), as well as for such period during which the court is unable to proceed with the inquiry except after the determination of any issue before any other court.

( c ) The terms mentioned in paragraph ( a ) shall also be held in abeyance for the corresponding period during which the record of the inquiry is with the Court of Magistrates for the examination of witnesses as provided in article 405(5).

...

(11) In refusing to grant bail the court shall state the reasons for such refusal in its decree refusing bail which decree shall be served on the person accused.”

Articles 576-578 of the Criminal Code, regarding security for the purposes of bail, read:

Article 576

“ 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.”

Article 577

“(1) Security for bail is given by the production of a sufficient surety who shall enter into a written recognizance in the sum fixed.

(2) It may also be given, whenever the court shall deem it proper, by the mere deposit of the sum or of an equivalent pledge, or by the mere recognizance of the person accused.

(3) Nevertheless, in cases of contraventions or of crimes within the jurisdiction of the Court of Magistrates as court of criminal judicature in terms of article 370(1) and article 371(2), it shall be lawful for the court, if it deems it expedient so to do, to exempt the accused, while the case is pending, from any of the modes of security mentioned in this article.

(4) Persons accused of any crime outside the jurisdiction of the Court of Magistrates as court of criminal judicature may, in the absence of opposition on the part of the Attorney General, be exempted from any of the modes of security mentioned in this article, where it appears from a certificate under the hand of the Commissioner of Police that they are poor and of good moral character.”

Article 578

“The effect of the security for bail shall be the temporary release from custody of the person charged or accused:

Provided that it shall be lawful for the court, at any subsequent stage of the proceedings, on the demand of the Police or the Attorney General, as the case may be, on good cause being shown, and after hearing the person charged or accused, to deprive him of the benefit of such temporary release, and to order his re-arrest.”

2. The Constitution and the European Convention Act

Article 46 of the Constitution of Malta, in so far as relevant, reads as follows:

“ (1) Subject to the provisions of sub-articles (6) and (7) of this article, any person who alleges that any of the provisions of articles 33 to 45 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him, or such other person as the Civil Court, First Hall, in Malta may appoint at the instance of any person who so alleges, may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress.

(2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of sub-article (1) of this article, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purposes of enforcing or securing the enforcement of, any of the provisions of the said articles 33 to 45 (inclusive) to the protection of which the person concerned is entitled:

Provided that the Court may, if it considers it desirable so to do, decline to exercise its powers under this sub-article in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.

(3) If in any proceedings in any court other than the Civil Court, First Hall, or the Constitutional Court any question arises as to the contravention of any of the provisions of the said articles 33 to 45 (inclusive), that court shall refer the question to the Civil Court, First Hall, unless in its opinion the raising of the question is merely frivolous or vexatious; and that court shall give its decision on any question referred to it under this sub-article and, subject to the provisions of sub-article (4) of this article, the court in which the question arose shall dispose of the question in accordance with that decision.

(4) Any party to proceedings brought in the Civil Court, First Hall, in pursuance of this article shall have a right of appeal to the Constitutional Court.

Similarly, Article 4 of the European Convention Act, Chapter 319 of the laws of Malta, provides:

“(1) Any person who alleges that any of the Human Rights and Fundamental Freedoms, has been, is being or is likely to be contravened in relation to him, or such other person as the Civil Court, First Hall, in Malta may appoint at the instance of any person who so alleges, may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress.

(2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of subarticle (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement, of the Human Rights and Fundamental Freedoms to the enjoyment of which the person concerned is entitled:

Provided that the court may, if it considers it desirable so to do, decline to exercise its powers under this subarticle in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other ordinary law.

(4) Any party to proceedings brought in the Civil Court, First Hall, in pursuance of this article shall have a right of appeal to the Constitutional Court.”

COMPLAINTS

The applicant complains of violations of Article 5 §§ 1, 3 and 5 and Article 6 § 1 of the Convention, in connection with the duration and lawfulness of his pre-trial detention.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the duration of his detention, exceed the limits imposed by national law?

2. Was the length of the applicant ’ s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

3. 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?

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

5. Did the applicant have an effective and enforceable right to compensation for his contravention of Article 5 § 3, as required by Article 5 § 5 of the Convention? In particular, was the Constitutional Court ’ s approach, of not awarding compensation, excessively formalistic and did that court interpret and apply the domestic law in the spirit of Article 5 of the Convention?

6. The Government should submit details about all the bail requests lodged by the applicant and the relevant decisions (if any), as well as details about the criminal proceedings in particular highlighting the relevant time-lines, the number of hearings and what transpired at each hearing.