CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 29 avril 1999

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text-align:center; page-break-after:avoid; font-size:14pt } .s82B4DA5F { page-break-before:right; clear:both; mso-break-type:section-break } .s63B44408 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; font-size:12pt } .sF6A12959 { width:33%; height:1px; text-align:left } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s3133A7C8 { font-family:Arial; color:#0069d6 }         CASE OF T.W. v. MALTA   (application no.   25644/94)                       JUDGMENT   STRASBOURG     29 April 1999       In the case of T.W. v. Malta , The European Court of Human Rights, sitting, in accordance with Article   27 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), as amended by Protocol   No.   11 [1] , and the relevant provisions of the Rules   of Court 2 , as a Grand Chamber composed of the following judges:   Mr   L. Wildhaber , President ,   Mrs   E. Palm ,   Mr   A. Pastor Ridruejo ,   Mr   A. Ferrari Bravo   Mr   G. Bonello ,   Mr   J. Makarczyk ,   Mr   P.   Kūris ,   Mr   R. Türmen ,   Mr   J.-P.   Costa ,   Mrs   F. Tulkens ,   Mrs   V. Strážnická ,   Mr   M.   Fischbach ,   Mr   V. Butkevych ,   Mr   J. Casadevall ,   Mrs   H.S. Greve ,   Mr   A. Baka ,   Mrs   S. Botoucharova , and also of Mr   M.   de Salvia , Registrar , Having deliberated in private on 13 January and 31 March 1999, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case was referred to the Court, as established under former Article   19 of the Convention [3] , by the Maltese Government (“the Government”) on 31 July 1998, within the three-month period laid down by former Articles   32 §   1 and 47 of the Convention. It originated in an application (no.   25644/94) against the Republic of Malta lodged with the European Commission of Human Rights (“the Commission”) under former Article   25 by a United Kingdom national on 2   November 1994. In the proceedings before the Commission the applicant was identified only as T.W. At the wish of the applicant’s representative this practice was maintained in the proceedings before the Court. The Government’s application referred to former Article   48. The object of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article   5 §   3 of the Convention. 2.     In response to the enquiry made in accordance with Rule 33 §   3   (d) of former Rules   of Court A [2] , the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (former Rule 30). The Government of the United Kingdom, having been informed by the Registrar of their right to intervene (former Article 48 (b) of the Convention and former Rule 33 § 3 (b)), indicated that they did not intend to do so. 3.     As President of the Chamber which had originally been constituted (former Article   43 of the Convention and former Rule   21) in order to deal in particular with procedural matters that might arise before the entry into force of Protocol No.   11, Mr   R. Bernhardt, the President of the Court at the time, acting through the Registrar, consulted the Agent of the Government, the applicant’s lawyer and the Delegate of the Commission on the organisation of the written procedure. Pursuant to the order made in consequence, the Registrar received the memorials of the applicant and the Government on 18 and 20   November 1998 respectively. The applicant filed further details of his claims for costs and expenses under Article   41 of the Convention on 23   November 1998. On 1   December 1998 the Commission produced the file on the proceedings before it, as requested by the Registrar on the President’s instructions. On 9 December 1998 the Government submitted comments on the applicant’s claims under Article 41 of the Convention. 4.     After the entry into force of Protocol No.   11 on 1   November 1998 and in accordance with Article   5 §   5 thereof, the case was referred to the Grand Chamber of the Court. The Grand Chamber included ex officio Mr   G.   Bonello, the judge elected in respect of Malta (Article   27 §   2 of the Convention and Rule   24   §   4 of the Rules of Court), Mr L. Wildhaber, the President of the Court, Mrs E. Palm, Vice-President of the Court, and Mr J.-P. Costa and Mr M. Fischbach, Vice-Presidents of Sections (Article   27 §   3 of the Convention and Rule   24 §§   3 and 5   (a)). The other members appointed to complete the Grand Chamber were Mr   A. Pastor Ridruejo, Mr   J. Makarczyk, Mr   P.   Kūris, Mr   R. Türmen, Mrs   F. Tulkens, Mrs   V. Strážnická, Mr   P.   Lorenzen, Mr   V. Butkevych, Mr   J. Casadevall, Mrs   H.S. Greve, Mr   A. Baka and Mrs   S. Botoucharova (Rule   24 §   3 and Rule 100 §   4). Subsequently Mr Lorenzen was prevented from taking part in the further consideration of the case and was replaced by Mr   L.   Ferrari Bravo (Rule 24 § 5 (b)). 5.     The President decided that it was not necessary to invite the Commission to delegate one of its members to take part in the proceedings before the Grand Chamber (Rule   99). By letter dated 11   December 1998 the President of the Grand Chamber notified the Agent of the Government of a provisional question which he proposed should be put to the Government. On 4 January 1999 the Government filed with the Registry their answer to the question. On 19   January 1999 the Government sought to file additional observations following the hearing. The President refused the Government leave to do so. 6.     In accordance with the President’s decision, the hearing, together with that in the case of Aquilina v.   Malta [3] , took place in public in the Human Rights Building, Strasbourg, on 13 January 1999.   There appeared before the Court: (a)   for the Government Mr   A. Borg Barthet , Attorney-General of Malta,   Agent , Mr   S. Camilleri , Deputy Attorney-General, Mr   L. Quintano , Senior Counsel,   Counsel ;   (b)   for the applicant Mr   J. Brincat , Advocate, Mr   B. Berry , Advocate,   Counsel.   The Court heard addresses by Mr Borg Barthet and Mr Brincat as well as their reply to a question put by one judge. AS TO THE FACTS I.   the CIRCUMSTANCES OF THE CASE 7.     The applicant, T.W., is a United Kingdom national, born in 1943. At the relevant time, he resided in Luqa, Malta, and was a storekeeper. 8.     On the evening of Thursday 6 October 1994, at approximately 8.30   p.m., he was arrested by the police. 9.     On Friday 7 October 1994 the applicant was brought before a magistrate of the Court of Magistrates. The charge was read out by a police inspector and alleged that the applicant had defiled his minor daughter (an offence involving sexual acts) and committed acts of violent assault on her. The applicant pleaded not guilty. 10.     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 bail. It stated that the applicant lived in Malta, was employed there, and although he had problems with his Maltese wife he had nevertheless very good relations with his in-laws. There was no fear of him absconding. Even if he were to go to the United Kingdom, extradition provisions would make it impossible for him to avoid being brought to trial if the Attorney-General decided to indict him. The application further stated that the applicant strenuously denied the charges and was being detained on the basis of mere unfounded allegations. The magistrate before whom he had been brought had no power to order his release. He had not been assisted by a lawyer and his application was being filed with the registry of the Court at the first opportunity. He requested the court to release him as there were no reasons justifying his continued detention. The application was immediately sent to the Attorney-General who was given twenty-four hours in which to reply. 11.     On the same day, that is on 10 October 1994, the Attorney-General, by a declaration in writing, stated his opposition to the applicant’s release. 12.     Still on 10 October 1994, a magistrate of the Court of Magistrates 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 not the same magistrate before whom the applicant had appeared on 7   October 1994 and had not himself examined the applicant. On 11   October 1994 the registrar of the Court of Magistrates entered the second magistrate’s decision in the court’s records. 13.     On 20 October 1994 the second magistrate began hearing evidence and on 25 October 1994 he ordered the applicant’s release on bail. 14.     On 8   May 1995 the Court of Magistrates convicted the applicant and gave him a two-year suspended prison sentence. On 8 January 1996 the Court of Criminal Appeal upheld the applicant’s conviction. ii.   relevant domestic law AND PRACTICE A.   Section 137 of the Criminal Code 15.     Section   137 of the Criminal Code provides as follows: “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.” 16.     In its judgment of 7 January 1998 in Carmelo Sant v. Attorney-General the Constitutional Court rejected the appellant’s argument that section   137 of the Criminal Code only provided for a penalty and not for a remedy. According to the Constitutional Court, if the way in which this section   had been applied were to be examined, the conclusion would be the same as that reached by Chief Justice John J.   Cremona. The latter in his academic writings asserted that although habeas corpus is not essentially a part of the ordinary law of Malta, there are in the Maltese Criminal Code two provisions, namely sections 137 and 353 which, taken together, may be regarded as providing an equally effective safeguard of personal freedom. 17.     The parties before the European Court referred to the following examples of cases in which section 137 had been invoked. On 13 June 1990 the First Hall of the Civil Court ordered Christopher Cremona to be detained for twenty-four hours for contempt of court. The detainee appealed under section   1003 of the Code of Organisation and Civil Procedure. The Attorney-General, with reference to Cremona having invoked section   137 of the Criminal Code, requested the Court of Magistrates to order the acting registrar of the court and the Commissioner of Police to bring Cremona before the court and order either of them to set him free at once. Cremona’s appeal had suspensive effect on the execution of the judgment and, as a result, his continued detention was illegal. The Court of Magistrates acceded to the Attorney-General’s request. Ibrahim Hafes Ed Degwej, later christened Joseph Leopold, invoked section   137 of the Criminal Code to challenge his prolonged and indefinite detention further to a removal order. He claimed that his detention, which had started in November 1983, had been rendered illegal because of its length and indefinite duration. On 4   July   1995 the Court of Magistrates ordered that the Attorney-General be notified and, having heard his views, still on 4 July 1995, decided to reject the application. On 28 April 1997 Joachim sive Jack Spagnol relied on section   137 of the Criminal Code to challenge the lawfulness of his prolonged detention pending an investigation into his assets, which had been sequestrated by court order. He claimed that the detention had been unduly prolonged. Moreover, he asserted that he had very little property. On 28 April 1997 the Court of Magistrates transmitted the case file to the Attorney-General and abstained from further consideration of the application. On 5 October 1994 the Court of Magistrates rejected an application for release by Emanuela Brincat. It observed: “As results from the records several applications have been filed, before this Court and before the Criminal Court, so that the person charged may be released, which applications have always been dealt with expeditiously, which fact makes it manifest in the most glaring manner how superfluous and incomprehensible the first paragraph   of the present application is, where it refers to section   137 of the Criminal Code.” (unofficial translation from Maltese) 18.     Moreover, the Government claimed that if it appeared to the magistrate that the arrest was unlawful the magistrate was obliged to order the arrested person’s release. The magistrate had this obligation by virtue of the provisions of section 137 of the Criminal Code. Every person in Malta was assured that an arrest could not last beyond forty-eight hours and the appearance before the magistrate ensured that if the arrested person had any submissions to make, he or she could do so in the presence of a totally independent person and not before a representative of the prosecuting authority. In connection with habeas corpus decisions, under section   137 of the Criminal Code the magistrate did not need to hear the Attorney-General. However, since this was an adversarial procedure where the prosecution was led by the police, the magistrate was expected to hear the police as parties to the case in observance of the principle audi alteram partem and the principle of equality of arms. This was a power quite separate and distinct from the power to grant bail. If the arrest was found by the magistrate to be unlawful then the magistrate had to order the release of the person arrested and the question of bail did not therefore arise. Only if there was nothing to show that the arrest was unlawful did the question of bail arise. B.     Section 353 of the Criminal Code 19.     Section 353 of the Criminal Code, read together with section 137, is considered by the Government to provide an effective safeguard of personal freedom equivalent to habeas corpus (see paragraph 16 above). Section 353 addresses the powers and duties of the police in respect of criminal prosecutions and reads as follows:   “353.   (1)     Every officer of the Executive Police below the rank of inspector shall, on securing the person arrested, forthwith report the arrest to an officer not below the rank of inspector who, if he finds sufficient grounds for the arrest, shall order the person arrested to be brought before the Court of Judicial Police; otherwise he shall release him.     (2)     Where an order is given for the person arrested to be brought before the Court of Judicial Police, such order shall be carried into effect without any undue delay and shall in no case be deferred beyond forty-eight hours.” 20.     The powers of the Court of Magistrates in respect of arrested persons who are brought before it under section 353 of the Criminal Code were discussed in extenso in the Ellul case. On 23 December 1990 Nicholas Ellul, who had been arrested on suspicion of having committed a criminal offence punishable with more than three years’ imprisonment, was brought before the Court of Magistrates. He claimed that the prosecution at that stage was obliged to convince the magistrate that the arrest was lawful. This request was dealt with by the Court of Magistrates on the same day in the following manner: “The procedure which should be followed by the Court of Magistrates as a Court of Inquiry is set out in sections 389 to 409 of the Criminal Code. Subsection   (1) of section   390 provides how proceedings should start before this court: it ‘shall hear the report of the police officer on oath, shall examine, without oath, the party accused, and shall hear the evidence in support of the report’. The time-limit for the conclusion of this inquiry is one month as indicated in section   401. In no way is the Court bound to hear any evidence in support of the report. Moreover, the fact that the prosecuting officers confirm the report on oath is meant to satisfy the Court that there is a reasonable suspicion for the person charged to be presented under arrest in view of the charges brought against him. This Court does not find anything to censure in the fact that the report confirmed on oath consists of a confirmation on oath of the charges; after all, in this contest, the word ‘report’ means ‘charge’. This is the procedure followed in this case and it is the correct procedure. Consequently, the Court declares that the requests of the person charged are unfounded and therefore rejects them.” (unofficial translation from Maltese) Mr Ellul lodged a constitutional application arguing that there had been a breach of Article   5 §   3 of the Convention. On 31 December 1990 the First Hall of the Civil Court found that Article   5 §   3 did not impose any obligation on the magistrate before whom an arrested person appeared to examine whether or not that person’s arrest had been made on a reasonable suspicion. Moreover, the court considered that Article   5 §   3 did not impose on the prosecution any duty, on presenting the arrested person, to adduce evidence that the police had a reasonable suspicion at the time of the arrest. On 8 January 1991 the Constitutional Court upheld the decision of the First Hall of the Civil Court. 21.     On 5 January 1999 Francis Xavier Borg, who had been arrested forty hours earlier on suspicion of having committed a criminal offence punishable with more than three years’ imprisonment was brought before the Court of Magistrates. His counsel drew the court’s attention to Article   5 §   3 of the Convention which, according to him, obliged the court to examine of its own motion whether the circumstances of the case justified his continued detention. The Court of Magistrates ruled as follows: “According to the constant practice of this Court and according to the Criminal Code, this Court cannot consider any circumstances at this stage and has to regulate itself according to the charges brought forward by the prosecution. The Court, furthermore, cannot enter into any question to consider ex officio the release from arrest, but first an application has to be filed which has to be notified to the Attorney-General, and after his reply or failing such a reply after the time set by law, it may decide on release under guarantees. Therefore what the defence is requesting is outside the functions of this Court. Having regard to sections   574(1), 575(2) and 582(1) of the Criminal Code, the Court declares itself not competent to comply with the request and directs the person charged, that if his request for release is to be considered, he has to comply with what is provided in the sections   herementioned.” (unofficial translation from Maltese) C.   Provisions in the Criminal Code governing bail 22.     The Criminal Code contains the following sections concerning bail:   “574.   (1)     Any accused person who is in custody for any crime or contravention may, on application, be granted temporary release from custody, upon giving sufficient security to appear at the proceedings at the appointed time and place.     …   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.     …   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.   577.   (1)     Security for bail is given by the production of a sufficient surety who shall enter into a written recognisance 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 recognisance of the person accused.   …   582.   (1)     The Court may not ex officio grant bail, unless it is applied for by the person charged or accused.     …” D.   Status of the European Convention on Human Rights in Maltese law 23.     By virtue of the European Convention Act of 19 August 1987 the Convention became part of the law of Malta. 24.     In its Aquilina judgment of 13   June 1994, the Constitutional Court held that judges in Malta have to take into consideration the case-law of the European Court of Human Rights. PROCEEDINGS BEFORE THE COMMISSION 25.     T.W. applied to the Commission on 2 November 1994. He relied on Article 5 §§ 3 and 4 and Article 6 § 3 (c) of the Convention, complaining that he had not been brought promptly before a judge who had the power to order his release, that there was no remedy whereby the lawfulness of his arrest or detention could be challenged “speedily” and that he was not given the opportunity to instruct a lawyer prior to his appearance in court or have one appointed for him. 26.     The Commission (First Chamber) declared the application (no.   25644/94) admissible on 17   January 1997 in respect of the applicant’s complaints under Article   5 §§   3 and 4 of the Convention. In its report of 4   March 1998 (former Article 31 of the Convention), it expressed the unanimous opinion that there had been a violation of Article   5 §   3 but no violation of Article   5 §   4. The full text of the Commission’s opinion is reproduced as an annex to this judgment [4] . FINAL SUBMISSIONS TO THE COURT 27.     The applicant in his memorial requested the Court to find the respondent State in breach of Article   5 §   3 of the Convention and to award him compensation for non-pecuniary damage as well as costs and expenses under Article   41. The Government for their part requested the Court to hold that there had been no breach of Article   5 §§   3 or 4. AS TO THE LAW I.   the Government’s preliminary objection 28.     As before the Commission, the Government pleaded that the applicant had failed to exhaust domestic remedies in relation to his complaint under Article 5 § 3 of the Convention. At no stage in the proceedings, they pointed out, had the applicant sought to rely on section   137 of the Criminal Code. This section, in addition to providing for the punishment of any official who delayed the hearing of a complaint about unlawful detention, constituted along with section 353 the legal basis of Malta’s version of the writ of habeas corpus (see paragraphs 16 and 19 above). Although section   582(1) of the Criminal Code required the filing of applications for provisional release (see paragraph 22 above), it could not limit the competence of magistrates to hear habeas corpus applications. This would be against the Constitution and the Convention, which is part of Maltese law (see paragraphs 23-24 above). 29.     The Government submitted that the magistrate before whom the applicant appeared on 7 October 1994 could have dealt with any complaint by the applicant concerning the lawfulness of his arrest. In such a case, the magistrate would have had to hear submissions by the arrested person and the police – not the Attorney-General. If it had then appeared to the magistrate that the arrest had been unlawful, the magistrate would have been obliged to order release under section   137 of the Criminal Code read in conjunction with the Convention and the case-law of the European Court of Human Rights. Although the applicant had produced some decisions which seemed to indicate that the powers of the magistrate before whom the accused first appeared were more limited than the Government maintained, these decisions emanated from lower courts and, in any event, the accused in these cases had not contended that the law did not allow arrest in their case or that there was no reasonable suspicion to justify arrest. 30.     The applicant replied that the provisions of the Criminal Code referred to by the Government did not provide an effective remedy. Section   137 made provision for the punishment of any magistrate or other officer who did not attend to a lawful complaint concerning an unlawful detention. It did not address the issue of the release of the detainee. 31.     The applicant contended that the magistrate before whom he appeared on 7 October 1994 had had no power to review the lawfulness of his arrest. Although the law spelt out in great detail what happened when the accused first appeared before a magistrate, it made no provision concerning release in cases of unlawful arrest. Moreover, there was no instance of an arrested person being released on being brought before a magistrate on the ground that the magistrate had decided that the arrest was unlawful. Additional arguments could be drawn a contrario from sections   353 (see paragraphs   19-21 above) and 397(5) of the Criminal Code. The latter provision provided that the court could also order the arrest of an accused person who was not already in custody. In any event, even assuming that the applicant could have made an application under section   137 of the Criminal Code, this would not have ensured compliance with Article   5 §   3 of the Convention which required an automatic review. Finally, the applicant’s arrest and detention could not have been considered unlawful because in the Ellul case the Constitutional Court had found that the limitations imposed by the system in force on the magistrate’s power of release did not raise any issues under Article   5 §   3 of the Convention (see paragraph 20 above). 32.     In its decision on the admissibility of the application, the Commission considered that the question of non-exhaustion of domestic remedies had to be considered together with the merits. 33.     Article   35 §   1, formerly Article   26, of the Convention reads as follows: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules   of international law, and within a period of six months from the date on which the final decision was taken.” 34.     The Court recalls that the only remedies which an applicant is required to exhaust are those that relate to the breaches alleged and which are at the same time available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, among other authorities, the Navarra v. France judgment of 23   November 1993, Series   A no.   273-B, p.   27, §   24). Moreover, an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see, mutatis mutandis , the A. v.   France judgment of 23   November 1993, Series   A no.   277-B, p.   48, §   32). 35.     The Court notes that before the Commission the applicant had not only complained that he did not have available to him, in accordance with Article 5 §   4 of the Convention, a habeas corpus remedy to obtain a court decision on the lawfulness of his detention under Maltese law. He had also alleged the absence of a procedure ensuring the specific kind of judicial control required by Article 5 § 3. In so far as the Government’s argument is that, if the applicant had invoked section 137 of the Criminal Code in conjunction with section 353 he would have obtained a review of his detention by a judge as envisaged by Article 5 § 3, this is an argument going directly to the issue of compliance with that provision. Accordingly, the Government’s preliminary objection is to be joined to the merits. II.   alleged violation of Article 5 § 3 of the Convention 36.     The applicant complained that he had been the victim of a breach of Article   5 §   3 of the Convention, which provides: “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.” 37.     The applicant acknowledged that the magistrate before whom he was brought within forty-eight hours of his arrest was an independent and impartial officer exercising judicial power. However, domestic law did not require the police to substantiate the grounds militating in favour of his arrest and the magistrate could release him only if he submitted a bail application. Since the offence for which the applicant had been arrested carried a penalty exceeding three years’ imprisonment, the bail application had to be communicated to the Attorney-General, who had one working day in which to decide whether he would oppose it or not. During that period the magistrate was not competent to decide on the applicant’s release. According to standard practice, after the accused’s first appearance before a magistrate the case went to the registrar who chose by lot the magistrate who would hear the evidence. This system was introduced to eliminate the possibility of forum-shopping by the police. The magistrate who heard the evidence also examined the bail application after the Attorney-General had had the opportunity of expressing his view. As a result, the bail application was often examined by a different magistrate from the one before whom the accused had first appeared. 38.     The applicant alleged a breach of Article   5   §   3 on three grounds. Firstly, the powers of the magistrate before whom he had first appeared were limited. The magistrate could only order his release following a bail application which, moreover, had to be communicated to the Attorney-General. Secondly, the review of his detention, which in reality did not take place until 25 October 1994, that is nineteen days after his arrest, had not been prompt. Thirdly, the magistrate who reviewed the case had not heard him in person. 39.     The Commission considered that there had been a violation of Article   5   §   3 of the Convention because the judicial review of the applicant’s detention had not been automatic and had not been exercised by a magistrate who had himself heard the applicant. 40.     The Government submitted that, if the charges against the applicant had been such that the law did not allow his arrest, the magistrate before whom he had appeared on 7 October 1994 would have raised the matter himself and ordered the applicant’s immediate release. Moreover, the applicant could have invoked section 137 of the Criminal Code to raise any other complaints he might have had concerning the lawfulness of his arrest. Quite apart from this consideration, the Government submitted that, in cases where the court had found an arrest to be lawful, it was open to the arrested person to request provisional release on bail. In this connection, the Government argued that although Article   5 §   3 required that the accused be brought promptly before a judge it did not require that the decision on the bail application be taken immediately. The reason why certain bail applications were communicated to the Attorney-General was to ensure that the principles of audi alteram partem and equality of arms were respected. In any event, the Attorney-General replied expeditiously and, as a result, the review of the accused’s detention could be concluded within the time-frame of Article   5   §   3. If the Attorney-General did not reply within the time-limit set by the magistrate, the latter could give a ruling on the bail application without hearing the Attorney-General’s views, which were not in any event binding. In the circumstances of the case, the magistrate’s decision on the bail application was issued on 10 October 1994 and the applicant’s counsel could have had access to it immediately. Furthermore, the Government stressed that the applicant had had ample opportunity to present his case in writing and could have made oral submissions. The Convention did not require that the magistrate who decided on an arrested person’s bail application should be the same as the magistrate before whom the arrested person initially appeared. Although the second magistrate had not heard the applicant in person, he had had at his disposal all the information required and was totally independent of the executive. In any event, the applicant could have asked the second magistrate to hear him in person. 41.     As the Court has pointed out on many occasions, Article   5 §   3 of the Convention provides persons arrested or detained on suspicion of having committed a criminal offence with a guarantee against any arbitrary or unjustified deprivation of liberty (see, inter alia , the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3187, § 146). It is essentially the object of Article   5 §   3, which forms a whole with paragraph   1   (c), to require provisional release once detention ceases to be reasonable. The fact that an arrested person had access to a judicial authority is not sufficient to constitute compliance with the opening part of Article   5   §   3. This provision enjoins the judicial officer before whom the arrested person appears to review the circumstances militating for or against detention, to decide by reference to legal criteria whether there are reasons to justify detention, and to order release if there are no such reasons (see the De   Jong, Baljet and Van   den   Brink v. the Netherlands judgment of 22   May   1984, Series   A no.   77, pp. 21-24, §§ 44, 47 and 51). In other words, Article   5 §   3 requires the judicial officer to consider the merits of the detention. 42.     To be in accordance with Article 5 § 3, judicial control must be prompt. Promptness has to be assessed in each case according to its special features (see the De   Jong, Baljet and Van   den   Brink judgment cited above, pp.   24 and 25, §§   51 and 52). However, the scope of flexibility in interpreting and applying the notion of promptness is very limited (see the Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no.   145-B, pp.   33-34, §   62). 43.     In addition to being prompt, the judicial control of the detention must be automatic (see the De   Jong, Baljet and Van   den   Brink judgment cited above, p.   24, §   51). It cannot be made to depend on a previous application by the detained person. Such a requirement would not only change the nature of the safeguard provided for under Article   5 §   3, a safeguard distinct from that in Article   5 §   4, which guarantees the right to institute proceedings to have the lawfulness of detention reviewed by a court (see the De Jong, Baljet and Van   den Brink judgment cited above, pp.   25-26, §   57). It might even defeat the purpose of the safeguard under Article   5 § 3 which is to protect the individual from arbitrary detention by ensuring that the act of deprivation of liberty is subject to independent judicial scrutiny (see, mutatis mutandis , the Kurt v. Turkey judgment of 25   May 1998, Reports 1998-III, p. 1185, § 123). Prompt judicial review of detention is also an important safeguard against ill-treatment of the individual taken into custody (see the Aksoy v. Turkey judgment of 18   December 1996, Reports 1996-VI, p. 2282, § 76). Furthermore, arrested persons who have been subjected to such treatment might be incapable of lodging an application asking the judge to review their detention. The same could hold true for other vulnerable categories of arrested persons, such as the mentally weak or those who do not speak the language of the judicial officer. 44.     Finally, by virtue of Article 5 § 3 the judicial officer must himself or herself hear the detained person before taking the appropriate decision (see the De Jong, Baljet and Van   den Brink judgment cited above, p. 24, §   51). 45.     Given that the applicant was arrested on 6 October 1994 and was brought before the magistrate on 7 October 1994 (see paragraphs 8 and 9 above), the Court shares the parties’ view that the applicant’s appearance before a magistrate on the latter date could be regarded as “prompt” for the purposes of Article   5 §   3. 46.     However, the parties disagreed as to the extent of the power of the magistrate to order release of his or her own motion. While the applicant argued that the magistrate before whom he had first appeared could order his release only following a bail application, the Government contended that magistrates had the power to order release of their own motion if the person appearing before them faced charges that, according to the law, did not allow his or her detention. Even assuming the Government’s interpretation of national law to be correct, the Court considers that Article   5   §   3 would not be complied with. The matters which, by virtue of Article 5 § 3, the judicial officer must examine go beyond the one ground of lawfulness cited by the Government. The review required under Article 5 §   3, being intended to establish whether the deprivation of the individual’s liberty is justified, must be sufficiently wide to encompass the various circumstances militating for or against detention (see paragraph 41 above). However, the evidence before the Court does not disclose that the magistrate before whom the applicant appeared on 7   October 1994 or any other judicial officer had the power to conduct such a review of his or her own motion. 47.     The Government argued that the applicant could have obtained a wider review of the lawfulness of his detention, going beyond the issue of whether the charges allowed such detention, by lodging an application under section 137 of the Criminal Code read in conjunction with section   353 with the judge before whom he appeared on 7 October 1994. However, compliance with Article 5 § 3 cannot be ensured by making an Article 5 § 4 remedy available. The review must be automatic (see paragraph 43 above). Furthermore, even in the context of an application by an individual under section 137 and having regard to section 353, the scope of the review has not been established to be such as to allow a review of the merits of the detention. Apart from the cases where the forty-eight hour time-limit was exceeded, the Government have not referred to any instances in which section   137 of the Criminal Code has been successfully invoked to challenge either the lawfulness of or the justification for an arrest on suspicion of a criminal offence. Moreover, from what the Court can deduce from the domestic cases cited before it, the absence of a reasonable suspicion or of reasons militating in favour of the applicant’s continued detention would not necessarily have rendered the applicant’s arrest and detention unlawful under Maltese law (see paragraphs   17, 20 and 21 above). It follows that the Government have not substantiated their preliminary objection that the applicant has not exhausted domestic remedies because he did not seek to rely on section 137 of the Criminal Code read together with section 353. Accordingly, the Court dismisses the Government’s preliminary objection. 48.     In the light of the above, the Court considers that the applicant’s appearance before the magistrate on 7 October 1994 was not capable of ensuring compliance with Article   5 §   3 of the Convention since the magistrate had no power to order his release. It follows that there has been a breach of that provision. 49.     In reaching this conclusion, the Court would nevertheless agree with the Government that the question of bail is a distinct and separate issue, which only comes into play when the arrest and detention are lawful. In consequence, the Court does not have to address this issue for the purposes of its finding of a violation of Article 5 § 3. III.   ALLEGED VIOLATION OF A