CEDH · CASELAW;REPORTS;ENG — 4 mars 1998

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W.       against       Malta       REPORT OF THE COMMISSION     (adopted on 4 March 1998)     TABLE OF CONTENTS     Page   I.   INTRODUCTION     (paras. 1-15)   1     A.   The application     (paras. 2-4)   1     B.   The proceedings     (paras. 5-10)   1     C.   The present Report     (paras. 11-15)   2     II.   ESTABLISHMENT OF THE FACTS   (paras. 16-24)   3     A.   The particular circumstances of the case     (paras. 16-18)   3     B.   Relevant domestic law     (paras. 19-24)   3     III.   OPINION OF THE COMMISSION   (paras. 25-47)   5     A.   Complaints declared admissible     (para. 25)   5     B.   Points at issue     (para. 26)   5     C.   As regards Article 5 para. 3 of the Convention     (paras. 27-35)   5       CONCLUSION     (para. 36)   7     D.   As regards Article 5 para. 4 of the Convention     (paras. 37-44)   7       CONCLUSION     (para. 45)   8     E.   Recapitulation     (paras. 46-47)   8     APPENDIX:   DECISION OF THE COMMISSION AS TO     THE ADMISSIBILITY OF THE APPLICATION   9     I.   INTRODUCTION     1.   The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.   The application   2.   The applicant is a British citizen, born in 1943 and resident in Luqa, Malta. He was represented before the Commission by Mr Joseph Brincat, a lawyer practising in Marsa, Malta.   3.   The application is directed against Malta. The respondent Government were represented by their Agent, Mr Anthony E. Borg Barthet, the Attorney General.   4.   The case concerns the applicant's right to be brought promptly before a judge or other officer authorised by law to exercise judicial power and his right to institute habeas corpus proceedings. The applicant invokes Article 5 paras. 3 and 4 of the Convention.   B.   The proceedings   5.   The application was introduced on 2 November 1994 and registered on 14 November 1994.   6.   On 29 November 1995 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.     7.   The Government's observations were submitted on 6 February 1996. The applicant replied on 11 March 1996.   8.   On 17 January 1997 the Commission declared admissible the applicant's complaints under Article 5 paras. 3 and 4 of the Convention.   It declared inadmissible the remainder of the application.   9.   The text of the Commission's decision on admissibility was sent to the parties on 28 January 1997 and they were invited to submit further observations. The Government submitted observations on 28 February 1997, to which the applicant replied on 19 April 1997. The Government sent further comments on 24 April 1997 to which the applicant replied on 5 May 1997.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.   The present Report   11.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:         MM   M.P. PELLONPÄÄ, President       N. BRATZA       E. BUSUTTIL       A. WEITZEL       C.L. ROZAKIS     Mrs   J. LIDDY     MM   L. LOUCAIDES       B. CONFORTI       I. BÉKÉS       G. RESS       A. PERENI?       C. BÎRSAN       K. HERNDL       M. VILA AMIGÓ     Mrs   M. HION     Mr   R. NICOLINI     12.   The text of this Report was adopted on 4 March 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:     (i)   to establish the facts, and     (ii)   to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.   The particular circumstances of the case   16.   On the evening of Thursday 6 October 1994 at approximately 8:30, the applicant was arrested by the police. On Friday 7 October 1994, the applicant appeared before a magistrate of the Magistrates Court and was charged with defilement of his minor daughter (an offence involving sexual acts) and having committed acts of violent assault on her in violation of Article 203 (1) a, b and c of chapter 9 of the Laws of Malta. The applicant pleaded not guilty.   17.   After the hearing, the applicant contacted a lawyer who arranged to meet with him the next day, 8 October, which was a Saturday. On the morning of Monday 10 October 1994 the applicant's lawyer filed a written application for release. The application was sent to the   Attorney General immediately as prescribed by law, since the applicant was facing charges attracting a maximum sentence of three or more years. The Attorney General   was given 24 hours to reply. On the same day, i.e. on 10 October 1994, the Attorney General, by a declaration in writing, stated his opposition to the applicant's release. Still on 10 October 1994, a magistrate of the Magistrates Court took the decision to reject the applicant's bail application. The recollection of the magistrate is that this decision was taken either late in the morning or early in the afternoon of 10 October 1994. The magistrate in question was different from the magistrate before whom the applicant had appeared on 7 October 1994. On 11 October 1994 the registrar of the Magistrates Court entered the second magistrate's decision in the court's books.   18.   On 20 October 1994, the second magistrate began hearing evidence and on 25 October 1994 he ordered the applicant's release on bail. On 8 May 1995, the Court of Magistrates convicted the applicant and gave him a suspended prison sentence of two years. On 8 January 1996 the Court of Criminal Appeal upheld in essence the applicant's conviction.   B.   Relevant domestic law   19.   The Maltese Criminal Code provides as follows:     Section 575     "2.   The demand for bail shall be made by an application, a copy whereof shall be communicated to the Attorney General on the same day, whenever it is made by     ...       (c)   persons accused of any crime punishable with more than   three years imprisonment ...     3.   The Attorney General may, within the next working day, by a note, oppose the application, stating the reasons for his opposition."     Section 582 para. 1     "The Court may not ex officio grant bail, unless it is applied for by the person charged or accused."   20.   In its judgment of 8 January 1991 in the Ellul case, the Constitutional Court of Malta upheld a decision taken on 31 December 1990 by the Civil Court in the exercise of its constitutional jurisdiction to the effect that Article 5 para. 3 of the Convention did not impose any obligation on the magistrate before whom an arrested person appeared to examine whether that person's arrest had been made on a reasonable suspicion or not. Moreover, according to the judgment of the Civil Court, as upheld by the Constitutional Court, Article 5 para. 3 of the Convention did not impose on the prosecution any duty, on presenting the arrested person,   to bring any evidence that the police had a reasonable suspicion at the time of the arrest.   21.   In its judgment of 13 June 1994 in the Aquilina case, the Constitutional Court reversed a decision taken on 25 November 1993 by the Civil Court in the exercise of its constitutional jurisdiction to the effect that the provisions of Article 575 of the Criminal Code, which required written notification of the Attorney General, were inconsistent with the provisions of Article 5 para. 3 of the Convention in failing to provide for the prompt consideration of the bail application. The Constitutional Court considered that Article 5 para. 3 of the Convention required the arrested person to be brought before a magistrate within a short period from the arrest. It did not require the magistrate to have the power to order release at that moment.   22.   Section 137 of the Maltese Criminal Code provides:     "Any Magistrate who, in a matter within his powers, fails or refuses to attend to a lawful complaint touching an unlawful detention, and any officer of the Executive Police, who on a similar complaint made to him, fails to prove that he reported the same to his superior authorities within twenty-four hours shall on conviction, be liable to imprisonment for a term from one to six months."   23.   The Court of Magistrates has examined a number of applications for release in which the lawfulness of a person's arrest was challenged under this provision. Examples of such applications are that submitted by J. Leopold on 3 July 1995 and examined on 4 July 1995 and that submitted by C. Cremona and examined on 13 June 1990 which led to the detainee's release.     24.   By virtue of the European Convention Act of 19 August 1987 the Convention became part of the Law of Malta.   III.   OPINION OF THE COMMISSION   A.   Complaints declared admissible   25.   The Commission has declared admissible the applicant's complaint that he was not brought promptly before a judge who had the power to order his release and that there was no remedy whereby the lawfulness of his arrest or detention could be challenged "speedily".   B.   Points at issue   26.   What is at issue, therefore, is     -   whether there has been a violation of Article 5 para. 3     (Art. 5-3) of the Convention and     -   whether there has been a violation of Article 5 para. 4     (Art. 5-4) of the Convention.   C.   As regards Article 5 para. 3 (Art. 5-3) of the Convention   27.   Article 5 para. 3 (Art. 5-3) of the Convention provides as follows:     "Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial".   28.   The applicant submits that his appearance before a first magistrate on 7 October 1994 was a mere formality, as the magistrate had no power to order his release. According to the law, his bail application had first to be submitted to the Attorney General. However, when an arrested person is brought before the magistrate, the prosecution is represented by the Officer of the Executive Police and not the Attorney General. The applicant further argues that he had not been allowed to contact a lawyer before his appearance before the magistrate and that a bail application had to be signed by a lawyer. Moreover, his lawyer had no right to ask for the opening of the court registry during the weekend. The magistrate who decided on the applicant's detention after the views of the Attorney General had been transmitted was different from the magistrate before whom the applicant had appeared. The applicant also submits that his lawyer was never notified of the decision of the magistrate, that the magistrate's office was closed for a number of days and that, as a result, he was not informed of the fate of his application before 15 October 1994.   29.   The Government argue that, although the Attorney General who was responsible for the prosecution of serious cases had to be consulted, the magistrate before whom the applicant appeared on 7 October 1994 was vested in principle with the power to order his release. The applicant had the right to lodge the bail application himself. Moreover, as it is expressly mentioned in the minutes of the hearing of 7 October 1994, the applicant was informed of his right to be represented by counsel before the Magistrates Court. (i)   The Government further submit that the applicant was able to consult a lawyer after the hearing on Friday afternoon. This lawyer need not have waited until Monday morning to lodge the bail application, since he could have asked for the urgent opening of the court's registry. When the application was lodged on 10 October 1994, it was immediately sent to the Attorney-General who replied on the same day. The magistrate issued his decision on the applicant's bail application either late in the morning or early in the afternoon of 10 October 1994. According to standard practice, the applicant's lawyer should have made the necessary inquiries and consulted the relevant records. The decision was given "promptly" in accordance with Article 5 para. 3 (Art. 5-3) of the Convention which, moreover, does not exclude written proceedings, provided that these are speedy and efficient.   30.   The Commission recalls that, according to the case-law of the Court, "Article 5 para. 3 (Art. 5-3) ... is aimed at ensuring prompt and automatic judicial control of police ... detention ordered in accordance with the provisions of paragraph 1 (c)" (Eur. Court HR, De Jong, Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 24, para. 51). Moreover, "the 'judge' ... must actually hear the detained person and take the appropriate decision" (ibid.).   31.   The Commission notes that, although persons who have been arrested in circumstances which fall under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention are brought before a magistrate promptly,   Maltese law does not appear to provide for automatic judicial review. According to section 582 para. 1 of the Criminal Code, persons who have been arrested can obtain a ruling on their detention only if they lodge a bail application. If no bail application is lodged, it appears that the magistrate, during the first appearance of the accused before him, simply reads out the charges to him and informs him of his rights.   32.   The Commission also notes that the applicant was arrested on 6 October 1994 and was brought before a magistrate on 7 October 1994. He lodged   a bail application on 10 October 1994 and the Government argue that, as a result, the Court of Magistrates became in principle vested with the power to order the applicant's release. However, the Commission notes that, in accordance with Article 575 para. 2 of the Criminal Code, since the applicant was accused of a crime punishable with more than three years imprisonment, this power could be exercised only after the Attorney General had been consulted.   33.   The Commission further notes that the Attorney General stated his views on 10 October 1994 and that the parties agree that a magistrate issued a decision on the same day ordering the applicant's continued detention. One of the issues on which the parties disagree is when the applicant was or could have been informed of the magistrate's decision. However, the Commission does not consider it necessary to pronounce itself on this question or on whether the judicial control of the applicant's detention was "prompt". The Commission notes in this connection that the decision on the applicant's detention was taken by a magistrate who was not the same as the one before whom the applicant had appeared on 7 October 1994. Moreover, it is not disputed by the parties that this second magistrate had not heard the applicant in person after his arrest.       34.   The Commission considers, therefore, that the judicial control of the applicant's detention was not automatic. Nor was it exercised by a magistrate who had himself heard the applicant. As a result, the requirements of Article 5 para. 3 (Art. 5-3) of the Convention were not met in the applicant's case.     CONCLUSION   35.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 3 (Art. 5-3) of the Convention.   D.   As regards Article 5 para. 4 (Art. 5-4) of the Convention   36.   Article 5 para. 4 (Art. 5-4) of the Convention provides as follows:     "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."     37.   The applicant submits that there is no remedy whereby the lawfulness of his arrest or detention can be challenged "speedily". Article 137 of the Criminal Code creates an offence, the sanction for which is the punishment of the culprit. It does not envisage the release of the person who is unlawfully detained. The cases invoked by the Government arose out of exceptional circumstances and do not establish that Article 137 of the Criminal Code affords protection similar to that of habeas corpus.   38.   The Government submit that Article 137 of the Criminal Code does not simply create a criminal offence. It provides the legal basis for a procedure whereby a person may, by application, request the court to examine the lawfulness of his arrest. This procedure is akin to habeas corpus proceedings in common-law countries. A number of cases have already been decided by the courts on this basis.   39.   The Commission recalls that, in accordance with the Court's case-law on Article 5 (Art. 5), "the procedure followed for bringing a person before the competent legal authority in accordance with paragraph 3 taken in conjunction with paragraph 1 (c) may ... have a certain incidence on compliance with paragraph 4. For example, where that procedure culminates in a decision by a court ordering or confirming deprivation of the person's liberty, the judicial control of lawfulness required by paragraph 4 is incorporated in this initial decision. ... However, the guarantee assured by paragraph 4 is of a different order from, and additional to, that provided by paragraph 3" (Eur. Court HR, De Jong, Baljet and Van der Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 26, para. 57).   40.   The Commission notes that the second magistrate carried out a first review of the lawfulness of the detention on 10 October 1994 which was not, however, consonant with a procedure embodying the guarantees inherent in Article 5 para. 3 (Art. 5-3) of the Convention. Since the applicant was finally released on bail on 25 October 1994, it remains to be determined whether a separate issue could arise under Article 5 para. 4 (Art. 5-4) of the Convention if the applicant was indeed unable to take judicial proceedings in the interim whereby the lawfulness of his continued detention could be speedily decided.   41.   The Commission recalls that, while the two guarantees under Article 5 para. 3 and para. 4 (Art. 5-3, 5-4) both call for remedies that may lead to the applicant's release, the questions that may arise when considering the "lawfulness" of the accused's detention under Article 5 para. 4 (Art. 5-4) are "often of a more complex nature than those which have to be decided when a person detained in accordance with Article 5 para. 1 (c) (Art. 5-1-c) is brought before a judge or other judicial officer as required by para. 3 of the Article. Indeed, the notion of 'promptly' (aussitôt) in the latter provision indicates greater urgency than that of 'speedily' (à bref délai) in Article 5 para. 4 (Art. 5-4)" (Eur. Court HR, E. v. Norway judgment of 29 August 1990, Series A no. 181-A, p. 27, para. 64). What is more, the scope of the obligation under Article 5 para. 4 (Art. 5-4) is not identical in all circumstances (Eur. Court HR, Bouamar v. Belgium judgment of 29 February 1988, Series A no. 129, p. 24, para. 60).   42.   In the instant case, following the rejection of the application for bail on the 10 October 1994, the proceedings for the determination of the lawfulness of the continued detention were already in train. The second magistrate who had rejected the bail application in camera began hearing evidence on the 20 October 1994, ten days later, and the applicant was released on bail on the 25 October 1994. An interval of fifteen days between the date of rejection of the bail application on the 10 October and the date of the applicant's release on bail on the 25 October after hearing the evidence does not appear difficult to reconcile with the requirement of "speedily" in Article 5 para. 4 (Art. 5-4) of the Convention.   43.   The Commission further notes that a remedy was also at the disposal of the applicant during this intervening period of fifteen days, since the Convention, including Article 5 para. 4 (Art. 5-4) thereof, is enforceable as part of the law of Malta and takes precedence over ordinary law.     CONCLUSION   44.   The Commission concludes, unanimously, that in the present case there has been no violation of Article 5 para. 4 (Art. 5-4) of the Convention.   E.   Recapitulation   45.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 3 (Art. 5-3) of the Convention (para. 36).   46.   The Commission concludes, unanimously, that in the present case there has been no violation of Article 5 para. 4 (Art. 5-4) of the Convention (para. 45).     M.F. BUQUICCHIO              M.P. PELLONPÄÄ      Secretary             President    to the First Chamber         of the First Chamber