Information Note on the Court’s case-law 19

June 2000

Sabeur Ben Ali v. Malta - 35892/97

Judgment 29.6.2000 [Section II]

Article 5

Article 5-3

Brought promptly before judge or other officer

Detainee brought before judge without power to order release: violation

Article 5-4

Take proceedings

Absence of proceedings for effective review of lawfulness of detention: violation

Facts : The applicant was arrested on 17 Mar ch 1995 on suspicion of a drug-related offence. He was brought before a single judge of the Court of Magistrates on 19 March and remanded in custody. He was committed for trial following the conclusion of the investigation on 4 April. On 29 July he applied to the Court of Magistrates for provisional release. The request was communicated to the Attorney General, who was given 24 hours to reply. The parties were heard on 31 July and the request was rejected the following day. The applicant was acquitted on 5 February 1997.

Law : Article 5 § 3 - The applicant’s appearance before the Court of Magistrates on 19 March 1995 was not capable of ensuring respect for Article 5 § 3 because, as established in the Aquilina v. Malta judgment (29 April 1999), that court had no power to review automatically the merits of the detention. Moreover, since the provision guarantees an automatic right to be brought before a judge, the fact that the national law gave the applicant the possibility, which he did not use, of lodging an a pplication challenging the lawfulness of his detention and a bail application (the latter after the conclusion of the inquiry) was not sufficient to satisfy its requirements.

Conclusion : violation (unanimously).

Article 5 § 4 - Section 137 of the Criminal Code is aimed primarily at the punishment of officials who fail to deal with complaints about the lawfulness of detention, and while in some instances courts have relied on it as a basis for ordering release, the Government did not refer to any instances in which it had been successfully invoked to challenge the lawfulness of arrest or detention on suspicion of a criminal offence. They have therefore not shown that the applicant could have obtained a review of the lawfulness of his detention by relying on that provision. As for a constitutional application, this involves a referral to the Civil Court and the possibility of an appeal to the Constitutional Court, a cumbersome procedure in which the proceedings are invariably lon ger than what would qualify as “speedy” for the purposes of Article 5 § 4. Finally, the applicant could not have obtained a review of the lawfulness of his detention by lodging a bail application, the question of bail coming into play only when the detenti on is lawful. Consequently, it has not been shown that the applicant had at his disposal under domestic law a remedy for challenging the lawfulness of his detention.

Conclusion : violation (unanimously).

Article 41 - The Court considered that there was no c ausal link between the violation and the pecuniary damage claimed by the applicant. It awarded him 1,000 Maltese liras (MTL) in respect of non-pecuniary damage and also made an award in respect of costs.

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

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