FOURTH SECTION

Application no. 76392/12 Jovica KOLAKOVIC against Malta lodged on 14 November 2012

STATEMENT OF FACTS

The applicant, Mr Jovica Kolakovi c , is a British national (of ethnic Serbian origin), who was born in 1956 and lived in the United Kingdom, prior to his arrival in Malta . He is represented before the Court by his wife Ms K. Kolakovic , who is unemployed and lives in Kent , the United Kingdom .

A. The circumstances of the case

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

1. Background of the case

On 8 September 2009, the applicant was arrested. A search in a hotel room close to where the applicant was apprehended revealed a number of packets of cannabis. The following day the applicant was questioned and released a statement. On 10 September 2009, two days after his arrest, the applicant and some other Maltese and foreign suspects were charged with the possession of cannabis not for their own exclusive use, and with conspiracy for the purposes of drug trafficking. They were brought before a magistrate (sitting in the Court of Magistrates as a Court of Criminal Inquiry) and remanded in custody.

Following multiple bail requests lodged by the applicant which were rejected by the relevant courts, on 25 March 2010 the applicant lodged constitutional redress proceedings complaining, inter alia , that there had been a breach of his rights under Article 5 § 3 of the Convention and requesting his immediate release as per Article 5 § 4 of the Convention.

By a judgment of 12 August 2010 following a thorough assessment of the factual circumstances and the relevant Court ’ s case-law, the Civil Court (First Hall) in its constitutional competence dismissed the applicant ’ s claims and thus did not order release. It, however, noted that the decision was without prejudice to any remedies which the applicant would be entitled to request at the proper time and if the need arose.

The applicant appealed. Pending the constitutional appeal proceedings, on 18 January 2011 the applicant was granted bail under certain conditions (including a curfew and reporting to the police twice daily) against a number of guarantees, including a bail bond in the form of a dep osit of EUR 50,000 and a further personal guarantee of EUR 15,000.

Not having paid the said amount he remained in preventive custody.

By a judgment of 14 February 2011 the Constitutional Court found a breach of the applicant ’ s rights under Article 5 § 3 [and § 4] in view of the further passage of time following the first-instance judgment during which the applicant ’ s requests continued to be persistently rejected. Although the court was empowered to order release and alter the bail conditions imposed, noting that the applicant had by the time of judgment been formally granted bail, it did not deem it appropriate to order release as per Article 5 § 4 or take any other action.

2. Further bail decisions

On 18 February 2011 the applicant requested the investigating court (Court of Magistrates as a Court of Criminal Inquiry) to reduce the amount of the deposit.

By a decision of 22 February 2011 the Court of Magistrates, having heard submissions, reduced the deposit to EUR 40,000 and increased the personal guarantee to EUR 60,000.

On 29 March 2011, still unable to pay, the applicant requested the court to further reduce the deposit. He referred to his wife ’ s testimony to the effect that the applicant and his family did not possess such sums.

By a decision of 4 May 2011 the Court of Magistrates, having heard submissions, reduced the deposit to EUR 15,000 and reduced the personal guarantee to EUR 30,000 (accepting the possibility of a third party surety in that amount). Nevertheless, it required that before such surety could undertake the obligation, proof of the surety ’ s financial means to the amount requested had to be submitted.

Another request to reduce the amounts was filed by the applicant on 19 July 2011. He reiterated that he did not have the financial means to deposit the said amount. He noted that he had four dependant children and a wife back in the United Kingdom who struggled to make ends meet, including paying for the children ’ s education and the mortgage. He further submitted that since he had been detained in Malta, the family business had had to be wound up and, to make matters worse, his wife ’ s medical condition, which prevented her from being gainfully employed, had worsened. The family had been living on their meagre savings of which very little was left at that stage. The amount specified in the deposit was, in his view, not reasonable considering his means and financial status. Moreover, he had been in preventive custody for over twenty months and despite the Constitutional Court having found a violation of the his rights under Article 5 § 3, regarding his bail refusals, he had to date not been able to effectively enjoy that right.

By a decision of the Court of Magistrates of 22 July 2011, after hearing the parties ’ submissions and the applicant ’ s wife ’ s testimony, the court rejected the request. It noted that according to the documents presented, the matrimonial home (a substantial property showing they were not a standard family), although burdened with a substantial mortgage, was still owned by the applicant and his wife. Moreover, the applicant ’ s wife had just sold off the family shoe business “implying the intake of a substantial amount of money within the family.” In light of previous decisions, and the fact that the accused had no ties with Malta, the court considered that the deposit of EUR 15,000 was commensurate with the charges preferred against him.

The applicant filed a further request on 26 July 2011 noting that the family business had not been sold but closed down, since the applicant was detained and the applicant ’ s wife was too ill to run the business. Moreover, although the house seemed to be of a certain wealth, this had to be seen against the British property market and the fact that the sale of the house was not being envisaged.

On 12 August 2011 the applicant instituted constitutional redress proceedings (see below).

Following the first-instance judgment of the constitutional jurisdiction (see below) and a further request by the applicant, by a decision of 14 March 2012 the Court of Magistrates after hearing further submissions reduced the bail deposit to EUR 7,000 and increased the personal guarantee to EUR 60,000.

Following a further request of 23 April 2012, on the same day, the Court of Magistrates allowed his request for a modification of the bail conditions and reduced the deposit to EUR 5,000 an d the personal guarantee to EUR 70,000. There were other changes to some of the original conditions (like having to report only once a day to the police station). The applicant deposited the said sum of EUR 5,000 and was released on the same day.

3. The second set of constitutional redress proceedings

In the meantime, on 12 August 2011 the applicant instituted a new set of constitutional redress proceedings, complaining, inter alia , of a breach of Article 5 § 3 in view of the high guarantees set by the Court of Magistrates as a result of which he had not been able to effectively be released on bail.

By a judgment of 16 January 2012 the Civil Court (First Hall) in its constitutional competence rejected the applicant ’ s complaint under the said provision. It noted that the Court of Magistrates had based its decision on the information supplied by the applicant and up to the date of its last decree there had been insufficient financial and personal details available to the court with which to evaluate the reasonableness of the conditions imposed. More information had been made available only at a later stage, emphasizing that the applicant was to blame “when he himself brought no clear evidence of his financial and presence [ recte : present] situation till late 2011.” In that light the court held that the applicant ’ s claim was not justified. However, since at this stage the applicant ’ s personal and financial situation was clearer, though not exhaustive, the court invited the Court of Magistrates to re-evaluate the conditions imposed following the relevant application by the applicant.

The applicant appealed arguing that various documentation including bank statements had been presented to the court; nevertheless, factual mistakes had been made, such as the fact that his business had been sold and not closed down.

By a judgment of 12 November 2012 the applicant ’ s appeal was rejected by the Constitutional Court. It noted that evidence before the Court of Magistrates had been scanty, other than for documents showing that the couple owned a house worth GBP 700,000 (approx. EUR 807,000) with a mortgage of GBP 381,000, as well as a shoe business. However, on presentation of further evidence the financial guarantees had been lowered, the relevant court having realized that, despite the passage of time, the applicant remained unable to pay and the grounds for pre-trial detention were becoming less relevant.

4. Further requests

Following his effective release on bail the applicant made various requests to alter the conditions imposed in particular to return to the United Kingdom for specific event s or short intervals between court hearings to re-unite with his family. One such request was acceded to upon condition of showing the air ticket and depositing a EUR 20,000 guarantee. It would appear that this condition could not be fulfilled. Subsequent requests were denied in view of the applicant ’ s inability to give any financial guarantees and noting that the applicant ’ s family could join him in Malta.

B. Relevant domestic law

Article 576 of the Criminal Code, Chapter 9 of the Laws of Malta, regarding security for the purposes of bail, reads 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.”

COMPLAINTS

Under Article 5 § 3 the applicant complains about his sixteen month detention following his granting of bail as a result of the impossibility of meeting the bail guarantees imposed on him by the domestic court. He noted that during the lengthy detention no measure had been undertaken by the authorities to ensure due diligence.

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 by reference to the detainee ’ s assets (see Toshev v. Bulgaria , no. 56308/00, 10 August 2006; Neumeister v. Austria , 27 June 1968, Series A no. 8; and Staykov v. Bulgaria , no. 49438/99, 12 October 2006)? H ave the competent national authorities displayed “special diligence” in the conduct of the proceedings ?

2. The Government should submit details about the criminal proceedings during the relevant time- frame, in particular highlighting the relevant time- lines, the number of sittings and what transpired at each sitting , accompanied by the relevant documentation.