CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 juillet 2013

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margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF3B96856 { width:11.87pt; display:inline-block } .sA737AF18 { width:210.77pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }       FOURTH SECTION           CASE OF MIKALAUSKAS v. MALTA   (Application no. 4458/10)             JUDGMENT     STRASBOURG   23 July 2013     FINAL   23/10/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Mikalauskas v. Malta, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Ineta Ziemele, President,   David Thór Björgvinsson,   Päivi Hirvelä,   George Nicolaou,   Ledi Bianku,   Zdravka Kalaydjieva, judges,   Lawrence Quintano, ad hoc judge, and Fatoş Aracı, Section Registrar, Having deliberated in private on 23 July 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 4458/10) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Tomas Mikalauskas (“the applicant”), on 13 January 2010. 2.     The applicant was represented by Dr J. Brincat, a lawyer practising in Malta. The Maltese Government (“the Government”) were represented by their Agent, Dr. P. Grech. 3.     The applicant alleged that he had suffered a violation of Article 5 §§ 3 and 4 of the Convention. 4.     On 15 May 2012 the Chamber decided to communicate the complaints to the respondent Government under Article 3 and Article 5   §§   3 and 4. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 5.     The Government of the Republic of Lithuania, who had been notified by the Registrar of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44), did not indicate that they intended to do so. 6.     Mr Vincent De Gaetano, the judge elected in respect of Malta, was unable to sit in the case (Rule 28). Accordingly, the President of the Chamber decided to appoint Mr Lawrence Quintano to sit as an ad hoc judge (Rule 29 § 1(b)). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The applicant was born in 1981 and was detained in the Corradino Correctional Facility, Paola, Malta, at the time his application was lodged. He now lives in Qawra, Malta. A.     Background of the case 8.     The facts of the case, as submitted by the parties, may be summarised as follows. 9.     Following, the applicant’s arrival in Malta on holiday, on 8 September 2009, he was arrested and questioned without the presence of a lawyer or an interpreter. 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 and remanded in custody. 10.     The applicant alleged that the conditions of detention in prison amounted to inhuman and degrading treatment. There was no access to hot water and there were no heaters. The prison had very dim lighting, which made it impossible to read. No drinking water was provided and had to be purchased by detainees themselves, and there were no facilities for washing clothes. 11.     The applicant, who suffers from health problems in relation to a dilated cerebral blood vessel which he claimed can be potentially fatal, complained that while in detention he had not received the relevant treatment he had previously been prescribed. According to a Lithuanian medical certificate of 2008 that he submitted, his condition caused headaches and required annual screening. In the event of increased dilation, surgical treatment might be needed. The certificate recommended that a computerised tomography (CT) scan be carried out between November and December 2009 and that the applicant avoid emotional strain and physical activity. 12.     According to the first medical report submitted by the Government, namely a prison doctor’s summary dated 9 August 2011, the applicant’s condition was as follows. On admission, the applicant was not on any regular treatment save for analgesics (paracetamol and later a different type), which he took regularly. He had a history of recurring headaches and mental illness, for which he had received regular psychotherapy in the United Kingdom. Subsequent (blood and chest X-ray) tests did not reveal anything unusual. He was seen once by a forensic psychologist who expressed concern about the level of anxiety he was exhibiting on account of his incarceration, but the applicant refused to attend any further sessions. On 13 January 2010 the applicant asked to see a doctor because of headaches connected to his medical condition. He was referred to hospital with the relevant Lithuanian medical certificate from 2008. On 14 July 2010 the applicant visited the prison clinic, complaining that he had not yet been sent to hospital. The hospital was contacted the following day and an appointment was obtained for 8 March 2011. The applicant refused to attend. 13.     In his reply, the applicant contested the veracity of the medical summary. He claimed that he had only had a blood test on admission, and had never been taken to hospital for an X-ray. He had persistently requested to be seen by a prison psychologist after his first visit, but had repeatedly been told that he had to wait his turn as the prison was overcrowded. He had even attempted to go to see the psychologist in person, but the latter had given him the same reply. He claimed that he had been left suffering from headaches for days and that the prison authorities had refused to give him even simple paracetamol. At times he had been given just one tablet, which had not been enough. Any other stronger medication had to be provided by the inmates themselves. Only after a whole year of detention had he been allowed to purchase his own medication. He conceded, however, that he had refused to go to his hospital appointment on 8 March 2011. Having lost trust in the medical staff at the prison and the prison authorities over time, and expecting to be released on bail, he had thought that he would be able to seek appropriate medical assistance once released. 14.     The Government later submitted further documents, through which it transpired that following admission to the Corradino Correctional Facility (on 10 September 2009) the applicant was examined by a prison doctor. The relevant medical report was completed on 1 October 2009. Another examination was held in the months that followed, and the applicant was found to be fit enough to use the gym. Blood and virology tests were also carried out. The applicant was assessed by a psychologist and a report was compiled, stating, inter alia , the following: [He] “appeared to be paranoid and suspicious of everyone and everything. The inmate was offered psychological treatment should he need it in the future. The inmate resisted and stated that he does not need it at the moment. It would therefore be up to the inmate to seek help if ever he needed it”. From the applicant’s file, it did not appear that the applicant ever sought further treatment. On 13   January 2010 he was referred to the Neurology Department of St Luke’s Hospital (with the Lithuanian medical certificate attached) following complaints that he was suffering from headaches. On 1 February 2010 an appointment was fixed for him for 8 March 2011, but he refused to attend. In the meantime, on 7 February 2010 a chest X-ray was performed at Mater Dei Hospital, but no abnormalities were detected. The Government further alleged that on 1 November 2010 the applicant had had a dental appointment at the same hospital. B.     The bail applications 15.     The applicant’s first application to be granted bail, dated 3   November 2009, was refused by the Court of Magistrates as a Court of Criminal Inquiry (“Court of Magistrates”) on 17 December 2009. Having considered the applicant’s personal circumstances (from documents showing that financial support was available from his relatives), his academic background (he was a graduate in accountancy), his character reference as supported by evidence given by the Republic of Lithuania’s counsel (who was heard by the court in person), evidence that a third party was willing to rent an apartment to him if he were to be granted bail, pleadings relating to the fact that the applicant was a European Union citizen to whom the provisions of a European arrest warrant could apply, and the fact that the other co-accused had already been granted bail, the court nevertheless concluded that the applicant had no other ties with Malta capable of satisfying it that he would remain on the island. 16.     A second application for bail, dated 24 December 2009 (accompanied by documentation showing that financial support was available from the applicant’s relatives), was refused by the Criminal Court on 28 December 2009, on the grounds that there was a serious risk that the proceedings could be thwarted, either because the applicant would not appear for trial or would abscond or interfere with witnesses and that the case concerned a crime with international ramifications. The Criminal Court considered that he had no ties with Malta. Neither the intervention of the Lithuanian Consulate, which had offered to accommodate the applicant and employ him, nor the fact that he was an EU citizen could outweigh the other factors. However, the court acknowledged that the matter could be reviewed at a later date and specifically ordered that the proceedings be continued with speed and diligence in view of the applicant’s detention. 17.     A third application for bail, dated 19 January 2010, was refused by the Court of Magistrates on 26 January 2010 on the ground that the courts’ position had already been made clear. The prosecution was ordered to produce further evidence by the next hearing. 18.     A fourth application to be granted bail was made on 9 February 2010 when proceedings were still pending, making particular reference to the applicant’s medical condition, but it was refused by a decision of the Court of Magistrates on 12 February 2010. Having heard submissions and having read the previous decisions refusing bail, the court said it had nothing further to add to the position previously adopted by the courts. 19.     A fifth bail application was made on 14 April 2010. The applicant highlighted the fact that the witnesses in the case had been heard, that he had cooperated with the police, that he was an EU national with no criminal record, that he was suffering from a medical condition (as evidenced by the relevant medical documents already submitted to the court) in relation to which he should have undergone certain medical tests, and that he had financial support and a job offer and accommodation in Malta from the Lithuanian Consulate. He also argued that the passage of time should weigh heavily on the decision whether to grant him bail, particularly given the lack of special diligence on the part of the prosecution. On 19 April 2010, the Criminal Court refused the application, considering that the grounds for refusing bail made in the previous decisions were still valid. 20.     A sixth bail application was lodged on 1 July 2010, but was refused by the Court of Magistrates on 6 July 2010 on the basis of the previous decisions. The court requested the prosecution to determine the case expeditiously. 21.     The Attorney General objected to all the above-mentioned bail applications on account of the applicant’s lack of ties with Malta and the seriousness of the offences. The applicant claimed to have been the only suspect not to have been released on bail. 22.     The applicant lodged a further application for bail on 16 July 2010. On 22 July 2010 the Criminal Court, having considered that the Attorney General’s objection related to the risk of the applicant absconding and that the applicant had a job and accommodation waiting for him on his release, granted the applicant bail subject to conditions which included: (i) a declaration by the Lithuanian Consulate regarding the details of his future residence and job in Malta; (ii) an undertaking that he appear in person at every stage of the proceedings; (iii) a prohibition on him leaving the island, committing a crime while on bail, or speaking to any witnesses; (iv) a requirement that he report to the police station twice daily; (v) a curfew confining him to his residence between 6 p.m. and 7.45 a.m.; and (vi) financial guarantees by way of a deposit of 50,000 euros (EUR) and a personal guarantee of EUR 15,000 (a total of EUR 75,000 [ sic ]), which would be forfeited on breach of any of the above conditions. 23.     On 6 September 2010 the applicant, who was still in detention, requested to have the financial guarantees lowered to reflect his family’s income (as evidenced by supporting documents). The decision, if any, on that request has not been submitted to the Court. 24.     On 15 October 2010 the applicant, who remained in detention, reiterated his request to have the financial guarantees lowered. On 23   December 2010 the Court of Magistrates, following an objection by the Attorney General, denied the request on the basis that it should not alter the decision of the Criminal Court. 25.     The applicant lodged a third request while still in detention, in which he included evidence of his parents’ earnings and stated that he could reside with his girlfriend, as she was moving to Malta. On 22 February 2011 the Court of Magistrates reduced the deposit to EUR 40,000, but increased the personal guarantee to EUR 60,000. 26.     On 28 April 2011 a fourth request was lodged, in which the applicant insisted on his inability to pay the required sums and stated that his girlfriend, who had now moved to Malta, was willing to stand surety for him. On 4 May 2011 the Court of Magistrates amended the financial guarantees as follows: a deposit of EUR 30,000, or a third party surety of the same amount (upon disclosure of the financial resources of the person standing surety), and EUR 15,000 as a personal guarantee. 27.     The applicant was released on bail on 7 July 2011 having satisfied the said conditions. Over the months that followed, various decisions were delivered agreeing to change the police station to which he was required to report. On 5 June 2012 the applicant requested to have his bail conditions changed by withdrawing part of the deposit made in court. On 6 June 2012 the Court of Magistrates denied his request, considering that there were no legal grounds to revise the deposit imposed. C.     The criminal proceedings against the applicant 28.     The relevant time-lines of the criminal proceedings against the applicant (and other co-accused), together with what happened at the hearings (excluding matters related to bail which have been mentioned above) are as follows: The applicant was arraigned on 10 September 2009 and pleaded not guilty to the charges. On 14 September 2009 the prosecuting officer and eight other police officers gave evidence, and documents were exhibited. On 22 September 2009 further documents were exhibited, a pharmacist, another police officer and a third person gave evidence. An expert in communications technology and a translator were appointed. On 3 November 2009 a copy of the inquiry was exhibited and one person gave evidence and exhibited documents. On 13 November 2009 another two police officers and a lawyer gave evidence and exhibited documents. A fingerprints expert was appointed. Another hearing was held on 11 December 2009 (no record). On 16 December 2009 the communications technology expert and two other individuals gave evidence. On 21 January 2010 the fingerprints expert gave evidence. On 2 February 2010, three witnesses, who had already been heard, gave further evidence, together with another two individuals. On 11 February 2010 another witness gave evidence. On 23 March 2010 the case was adjourned as the magistrate was indisposed. On 25 March 2010 a doctor and the prosecuting officer gave evidence; the latter declared that only three witnesses remained to be heard. On 4 May 2010 the case was adjourned as the magistrate was indisposed. On 5 May 2010 a police inspector and another person gave evidence and were cross-examined. The co–accused’s lawyer objected to the proceedings being protracted. On 11 May 2010 the case was adjourned due to technical problems. On 22 June 2010 two witnesses who had already given evidence were further heard and cross-examined. The applicant’s lawyer reserved the right to further cross-examination, and requested that a witness be re-heard. On 2 July 2010 the communications technology expert was cross ‑ examined and the applicant’s lawyer requested that another witness be re-heard. On 4 August 2010 the case was adjourned. On 6 September 2010 one of the witnesses called by the applicant was re-heard and cross-examined. The prosecution was to summon four further witnesses. On 15 September 2010 a lawyer from the prosecutor’s office was heard. On 27 September 2010 the case was adjourned following a request for letters rogatory by the co-accused. On 30 September following a request for a change in the letters rogatory the case was adjourned. On 12 October 2010 the court suspended the inquiry and the case was adjourned. On 29 October 2010 the witness requested by the defence gave evidence, and another person whose evidence had already been tendered in writing was cross-examined. A third person refused to tender evidence. A translator was appointed. On 10 November 2010, following a request to destroy the substances, the case was adjourned. On 17 November 2010 another two police officers gave evidence. The prosecutor declared that he had no further evidence to produce. On 26 November 2010 the case was adjourned as the prosecutor was indisposed. From 3 December 2010 until 6 July 2011 the case was adjourned more than fifteen times for either unknown reasons, or because the magistrate was indisposed or because the letters rogatory were still pending. In the meantime, on 22 February 2011 two other persons gave evidence. On 3 March 2011 defence counsel requested the summoning of witnesses. On 16 March 2011 the prosecuting officer gave evidence again. On 7 April 2011 another individual gave evidence. On 13 May 2011 a doctor who had already given evidence was re-heard. On 3 June 2011 another person gave evidence. The applicant was effectively released from detention on 7 July 2011. On 8 April 2013, date of the last communication with the Government, the committal proceedings were still on-going and no bill of indictment had yet been filed. D.     Other relevant information 29.     The applicant acknowledged that he did not institute constitutional redress proceedings, but argued that he did not, in any event, have sufficient funds for doing so. II.     RELEVANT DOMESTIC LAW A.     The Civil Code 30.     The relevant provisions of the Civil Code, Chapter 16 of the Laws of Malta, regarding actions in tort, read as follows: Article 1031 “Every person, however, shall be liable for the damage which occurs through his fault.” Article 1032 “(1) A person shall be deemed to be in fault if, in his own acts, he does not use the prudence, diligence, and attention of a bonus pater familias .   (2) No person shall, in the absence of an express provision of the law, be liable for any damage caused by want of prudence, diligence, or attention in a higher degree.” Article 1033   “Any person who, with or without intent to injure, voluntarily or through negligence, imprudence, or want of attention, is guilty of any act or omission constituting a breach of the duty imposed by law, shall be liable for any damage resulting therefrom.” Article 1045   “(1) The damage which is to be made good by the person responsible in accordance with the foregoing provisions shall consist in the actual loss which the act shall have directly caused to the injured party, in the expenses which the latter may have been compelled to incur in consequence of the damage, in the loss of actual wages or other earnings, and in the loss of future earnings arising from any permanent incapacity, total or partial, which the act may have caused. (2) The sum to be awarded in respect of such incapacity shall be assessed by the court, having regard to the circumstances of the case, and, particularly, to the nature and degree of incapacity caused, and to the condition of the injured party.” B.     The Criminal Code 31.     Article 401 of the Criminal Code, Chapter 9 of the Laws of Malta, regarding the terms for the conclusion of an inquiry, reads as follows:   “(1) The inquiry shall be concluded within the term of one month which may, upon good cause being shown, be extended by the President of Malta for further periods each of one month, each such extension being made upon a demand in writing by the court: Provided that the said term shall not in the aggregate be so extended to more than three months: Provided further that unless bail has been granted, the accused shall be brought before the court at least once every fifteen days in order that the court may decide whether he should again be remanded in custody. (2) On the conclusion of the inquiry, the court shall decide whether there are or not sufficient grounds for committing the accused for trial on indictment. In the first case, the court shall commit the accused for trial by the Criminal Court, and, in the second case, it shall order his discharge. (3) In either case, the court shall order the record of the inquiry, together with all the exhibits in the case, to be, within three working days, transmitted to the Attorney General. (3A) Where the court has committed the accused for trial by the Criminal Court the court shall, besides giving the order mentioned in subarticle (3), adjourn the case to another date, being a date not earlier than one month but not later than six weeks from the date of the adjournment. The court shall also adjourn the case as aforesaid after having received back from the Attorney General the record of the inquiry and before returning the record to the Attorney General in terms of any provision of this Code.” 32.     Article 409A of the Criminal Code, concerning applications by persons in custody regarding unlawful detention, reads as follows: “(1) Any person who alleges he is being unlawfully detained under the authority of the Police or of any other public authority not in connection with any offence with which he is charged or accused before a court may at any time apply to the Court of Magistrates, which shall have the same powers which that court has as a court of criminal inquiry, demanding his release from custody. Any such application shall be appointed for hearing with urgency and the application together with the date of the hearing shall be served on the same day of the application on the applicant and on the Commissioner of Police or on the public authority under whose authority the applicant is allegedly being unlawfully detained. The Commissioner of Police or public authority, as the case may be, may file a reply by not later than the day of the hearing. (2) On the day appointed for the hearing of the application the court shall summarily hear the applicant and the respondents and any relevant evidence produced by them in support of their submissions and on the reasons and circumstances militating in favour or against the lawfulness of the continued detention of the applicant. (3) If, having heard the evidence produced and the submissions made by the applicant and respondents, the court finds that the continued detention of the applicant is not founded on any provision of this Code or of any other law which authorises the arrest and detention of the applicant it shall allow the application. Otherwise the court shall refuse the application. (4) Where the court decides to allow the application the record of the proceedings including a copy of the court’s decision shall be transmitted to the Attorney General by not later than the next working day and the Attorney General may, within two working days from the receipt of the record and if he is of the opinion that the arrest and continued detention of the person released from custody was founded on any provision of this Code or of any other law, apply to the Criminal Court to obtain the re-arrest and continued detention of the person so released from custody. The record of the proceedings and the court’s decision transmitted to the Attorney General under the provisions of this subarticle shall be filed together with the application by the Attorney General to the Criminal Court.” 33.     Article 412B, concerning applications by persons in custody regarding unlawful detention pending criminal proceedings reads as follows: “(1) Any person in custody for an offence for which he is charged or accused before the Court of Magistrates and who, at any stage other than that to which article 574A applies, alleges that his continued detention is not in accordance with the law may at any time apply to the court demanding his release from custody. Any such application shall be appointed for hearing with urgency and together with the date of the hearing shall be served on the same day of the application on the Commissioner of Police or, as the case may be, on the Commissioner of Police and the Attorney General, who may file a reply thereto by not later than the day of the hearing. (2) The provisions of article 574A(2) and (3) shall mutatis mutandis apply to an application under this article. (3) Where the application is filed in connection with proceedings pending before the Court of Magistrates as a court of criminal inquiry before a bill of indictment has been filed and the record of the inquiry is with the Attorney General in connection with any act of the proceedings the application shall be filed in the Criminal Court and the foregoing provisions of this article shall mutatis mutandis apply thereto. (4) The provisions of article 409A(4) shall apply to a decision of the Court of Magistrates under this article.” 34.     Article 525(2A) reads as follows: “The provisions of article 412B(1) and (2) shall also apply mutatis mutandis to the Criminal Court with respect to a person in custody for an offence for which a bill of indictment has been filed as well as to the Court of Criminal Appeal with respect to a person in custody who is a party to appeal proceedings before that court: Provided that with respect to the Criminal Court the relevant decision shall in all cases be taken by the Court sitting without a jury.” 35.     Under domestic law, bail is regulated by the provisions of Article 574A, which in so far as relevant read as follows: “(1) When the person charged or accused who is in custody is first brought before the Court of Magistrates, whether as a court of criminal judicature or as a court of criminal inquiry, the Court shall have the charges read out to the person charged or accused and, after examining the person charged as provided in article 392 as the proceedings may require, shall summarily hear the prosecuting or arraigning officer and any evidence produced by that officer on the reasons supporting the charges and on the reasons and circumstances, if any, militating against the release of the person charged or accused. (2) After hearing the prosecuting or arraigning police officer and any evidence produced as provided in subarticle (1) the court shall inform the person charged or accused that he may be temporarily released from custody on bail by the court under conditions to be determined by it and shall ask him what he has to say with respect to his arrest and his continued detention and with respect to the reasons and the circumstances militating in favour of his release. (3) Where any of the offences charged consists in any of the offences mentioned in article 575(2) the court shall, after hearing the person charged or accused as provided in subarticle (2) of this article, ask the prosecuting or arraigning officer whether he has any submissions to make on the question of temporary release from custody on bail of the person charged or accused and the latter shall be allowed to respond. (4) Where none of the offences charged consists in any of the offences mentioned in article 575(2) the court shall, after hearing the person charged or accused as provided in subarticle (2) of this article, ask the prosecuting or arraigning officer whether he and the Attorney General have any submissions, in writing or otherwise, to make on the question of the temporary release from custody of the person charged or accused and the latter shall be allowed to respond. (5) At the end of submissions as provided in the preceding subarticles of this article the court shall review the circumstances militating for or against detention. (6) If the court finds that the continued detention of the person charged or accused is not founded on any provision of this Code or of any other law which authorises the arrest and detention of the person in custody it shall unconditionally release that person from custody. (7) If the court does not find cause to release unconditionally the person charged or accused under the provisions of subarticle (6) it may nevertheless, saving the provisions of article 575(1) and unless release is prohibited by any provision of law, release that person from custody on bail subject to such conditions as it may deem appropriate. (8) If the court does not find cause to release unconditionally the person charged or accused and refuses to grant that person bail the court shall remand that person into custody and the provisions of article 575(11) shall apply. (9) Where the court orders the release from custody of the person charged or accused, whether unconditionally or on bail subject to conditions, under any of the provisions of this article the decision of the court to that effect shall be served on the Attorney General by not later than the next working day and the Attorney General may apply to the Criminal Court to obtain the re-arrest and continued detention of the person so released or to amend the conditions, including the amount of bail, that may have been determined by the Court of Magistrates.” 36.     Article 575, regarding crimes in respect of which bail is granted only in certain circumstances, in so far as relevant reads as follows:   “(1) Saving the provisions of article 574(2), in the case of – ...   (ii) a person accused of any crime liable to the punishment of imprisonment for life, the court may grant bail, only if, after taking into consideration all the circumstances of the case, the nature and seriousness of the offence, the character, antecedents, associations and community ties of the accused, as well as any other matter which appears to be relevant, it is satisfied that there is no danger that the accused if released on bail - ( a ) will not appear when ordered by the authority specified in the bail bond; or ( b ) will abscond or leave Malta; or ( c ) will not observe any of the conditions which the court would consider proper to impose in its decree granting bail; or ( d ) will interfere or attempt to interfere with witnesses or otherwise obstruct or attempt to obstruct the course of justice in relation to himself or to any other person; or ( e ) will commit any other offence.” 37.     Article 576, 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.” C.     European Convention Act 38.     Article 4(3) of the European Convention Act, Chapter 319 of the laws of Malta, reads as follows: “If any proceedings in any court other than the Civil Court, First Hall, or the Constitutional Court any question arises as to the contravention of any of the Human Rights and Fundamental Freedoms, that court shall refer the question to the Civil Court, First Hall, unless in its opinion the raising of the question is merely frivolous or vexatious; and that court shall give its decision on any question referred to it under this subarticle and, subject to the provisions of subarticle (4), the court in which the question arose shall dispose of the question in accordance with that decision.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 39.     The applicant complained that while in detention he had not received prompt or adequate medical care, and that the conditions in the prison, given his medical condition, constituted inhuman and degrading treatment contrary to Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 40.     The applicant also cited Article 2 of the Convention; however, in the circumstances of the case, the Court considers that the complaint is to be examined solely under Article 3. A.     Admissibility 1.     The Government’s objection of non-exhaustion of domestic remedies (a)     The parties’ submissions 41.     The Government submitted that the applicant had not instituted any proceedings before the domestic courts relating to his Article 3 complaint, and consequently he had not exhausted domestic remedies. 42.     They noted that the applicant could have instituted a civil action for damages (in tort), which could have made good any damage or loss sustained as a result of his detention conditions, if he could have shown on the basis of probabilities that he had suffered damage attributable to the Government’s acts or omissions (Articles 1031 and 1033 of the Civil Code, see paragraph 30 above). The Government cited the case of Sammut and Visa Investments Ltd v. Malta ((dec.), no. 27023/03, 28 June 2005) and various domestic judgments where the State had been held responsible. Nevertheless, they acknowledged that the circumstances of those cases were different to those of the present case. Moreover, citing Zavoloka v. Latvia (no. 58447/00, § 40, 7 July 2009) the Government submitted that the Convention did not give a general right for the award of compensation for non-pecuniary damage, known as “moral damage” in the domestic context. In any event, although it was true that such damage was not expressly provided for under Maltese law (except in limited circumstances), a civil action could cover loss of opportunity, which in their view was a type of “moral damage” i.e. non-pecuniary damage as understood by the Convention case-law. 43.     Furthermore, the Government submitted that the applicant had failed to institute constitutional redress proceedings, where the relevant courts have wide ranging powers to ensure redress, including being able to award compensation for non-pecuniary damage. The applicant could have requested the proceedings to be heard with urgency (such requests were upheld where urgency was merited) in order to reduce the time span drastically. The Government cited the following cases as examples of where such requests were accepted: (i) in the context of the enforcement of a return order of a child following wrongful removal, where the case was decided by two levels of jurisdiction over approximately a month and a half (from 6 July 2012 to 24 August 2012); (ii) in a case in the same context, brought on 2 August and decided on 14 August 2012 (where no appeal was lodged); and (iii) Kenneth Gafa v. The Attorney General (no 22. of 2012) concerning repeated bail refusals under Article 5 § 3, which was brought on 10 April 2012 and decided on appeal on 23 November 2012. The Government submitted that such remedies could have directly remedied the state of affairs of which the applicant complained. 44.     The applicant submitted that a civil action for damages could not improve material conditions of detention, which included the adequacy of medical assistance. Moreover, Article 1045 of the Civil Code limited what damages could be claimed and excluded non-pecuniary damage, and in addition, usually applied only to cases concerning private individuals. 45.     Furthermore, as already held by the Court (see for example, Kadem v. Malta (no. 55263/00, 9 January 2003), constitutional redress proceedings were cumbersome and could not be considered expeditious. The applicant submitted that the Government’s examples had referred to very specific sets of circumstances and cited another case, Kolakovic v. The Attorney General no. 50/11, regarding, inter alia , medical conditions, instituted before the constitutional jurisdictions on 12 August 2011 and concluded on appeal on 12 November 2012. (b)     The Court’s assessment 46.     In the context of complaints about inhuman or degrading conditions of detention, the Court has already observed that two types of relief are possible: an improvement in the material conditions of detention, and compensation for the damage or loss sustained on account of such conditions (see Roman Karasev v.   Russia , no.   30251/03, §   79, 25   November   2010, and Benediktov v. Russia , no. 106/02, § 29, 10   May   2007). If an applicant has been held in conditions in breach of Article   3, a domestic remedy capable of putting an end to the on-going violation of his or her right not to be subjected to inhuman or degrading treatment is of the greatest value. However, once the applicant has left the facility in which he or she has endured the inadequate conditions, what remains relevant is that he or she should have an enforceable right to compensation for the violation that has already occurred. Where the fundamental right to protection against torture, inhuman and degrading treatment is concerned, the preventive and compensatory remedies have to be complementary in order to be considered effective. The existence of a preventive remedy is indispensable for the effective protection of individuals against the kind of treatment prohibited by Article 3. Indeed, the special importance attached by the Convention to this provision requires, in the Court’s view, the States parties to establish, over and above a compensatory remedy, an effective mechanism in order to put an end to such treatment rapidly (see Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, §§ 98-99, 10 January 2012 and Torreggiani and Others v.   Italy , nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10, § 50, 8 January 2013). The need, however, to have both of these remedies does not imply that they should be available in the same judicial proceedings. Further, in the context of complaints that there was a lack of adequate care for prisoners suffering from serious illnesses the Court has held that a preventive remedy ought to have the potential to bring direct and timely relief (see Goginashvili v.   Georgia , no.47729/08, § 49, 4   October 2011, Makharadze and Sikharulidze v. Georgia , no.35254/07, §   52, 22 November 2011 and Čuprakovs v. Latvia , no. 8543/04, § 50, 18   December 2012). 47.     It is incumbent on the Government claiming non-exhaustion of domestic remedies to satisfy the Court that a remedy was effective and available, both in theory and in practice at the relevant time (see Menteş and Others v. Turkey , 28 November 1997, Reports of Judgments and Decisions 1997-VIII, §   57). 48.     The Court notes that the case of Zavoloka (cited above) has been misinterpreted by the Government, as it is not comparable to the present case where the applicant, as a detainee, was under the responsibility of the authorities. Contrary to what was submitted by the Government, according to the Court’s case-law, in the event of a breach of Articles 2 and 3, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of possible remedies (see Z and Others v.   the United Kingdom [GC], no. 29392/95, § 109, ECHR 2001-V; Keenan v. the United Kingdom , no. 27229/95, § 130, ECHR 2001-III; and Paul and Audrey Edwards v. the United Kingdom , no. 46477/99, §§ 97-98, ECHR 2002-II). In Keenan , for example, the Court found that there had been significant defects in the medical care provided to a mentally-ill person known to be at risk of suicide, which amounted to a violation of Article 3. The Court concluded that the applicant should have been able to apply under Article 13 for compensation for her non-pecuniary damage and the damage suffered by her son before his death. 49.     The Court notes that, as partly acknowledged by the Government, the law of tort did not provide for compensation for non-pecuniary damage, which it notes, is different to a loss of opportunity which is considered as pecuniary damage in Convention case-law. It follows that an action in tort may not give rise to compensation for the non-pecuniary damage suffered (see, conversely, Nocha v Poland , (dec.) no. 21116/09, 27 September 2011). Neither is it a preventive remedy which could put an end to such treatment rapidly (see Čuprakovs, cited above, § 55). In consequence it cannot be considered an effective remedy under Article 3 for the purposes of a complaint of cond