Published on 22 May 2023

SECOND SECTION

Application no. 37055/22 Patrick SPITERI against Malta lodged on 28 July 2022 communicated on 5 May 2023

SUBJECT MATTER OF THE CASE

The application mainly concerns the applicant’s pre-trial detention. While proceedings for money laundering where ongoing against the applicant, in Malta, he moved to the United Kingdom. As a result, a European Arrest Warrant (EAW) was issued on 20 October 2014, and he was returned to Malta and detained as of 31 May 2017 until 22 December 2017, date when he was given bail under certain conditions. In December 2022 the applicant was still at liberty on bail but was not allowed to leave the country.

The applicant instituted constitutional redress proceedings complaining about the lawfulness of his detention and subsequent restrictions. On 13 October 2021 the Civil Court (First Hall), in its constitutional competence, found a violation of Article 5 of the Convention in so far as no national arrest warrant had been issued prior to the issuance of the EAW contrary to the requirements of European Union law, as interpreted by the Court of Justice of the European Union. In consequence the restrictions on his liberty of movement were also in violation of Article 2 of Protocol No. 4 to the Convention. It however considered that it was not for it to lift any of the measures in place.

The applicant and the State Attorney both appealed. In reply to the State Attorney’s appeal, the applicant reiterated the relevant European Union law and case-law and requested a preliminary reference should the disputed matter be in doubt.

On 30 March 2022 the Constitutional Court reversed the above-mentioned findings rejecting all the applicant’s claims. It considered that the document no. 1124 submitted in the proceedings (entitled a warrant for the purposes of Article 62 of S.L. 276.05) was indeed a national arrest warrant, thus his detention and subsequent bail restrictions, including on his movement, were lawful and proportionate.

The applicant complains under Article 5 of the Convention that no national arrest warrant (as required by Maltese law) had been issued prior to the EAW and thus his detention was unlawful. For the same reasons he considers that the restrictions on his liberty of movement (inability to travel abroad) were also unlawful and thus contrary to Article 2 of Protocol No. 4 to the Convention. The applicant also complains under Article 6 § 1 of the Convention that the Constitutional Court failed to examine and give reasons in connection with his request to refer the matter to the Court of Justice of the European Union.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was the applicant’s detention ordered “in accordance with a procedure prescribed by law”?

2. The Government are requested to submit examples of national arrest warrants issued for the purposes of requesting a European Arrest Warrant (EAW), together with the subsequent EAW.

3. Has there been a violation of the applicant’s freedom to leave the territory of the respondent State, contrary to Article 2 of Protocol No. 4? In particular, were the measures applied to him “in accordance with the law” (see De Tommaso v. Italy [GC], no. 43395/09, § 106, 23 February 2017)?

4. Has there been a breach of Article 6 § 1 in so far as the Constitutional Court did not examine, and in consequence did not give reasons, in reply to the applicant’s request for a preliminary reference to the Court of Justice of the European Union (see Som orjai v. Hungary , no. 60934/13, § 57, 28 August 2018, and the case law-cited therein)?