CEDH · CASELAW;COMMUNICATEDCASES;ENG — 15 mai 2012

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .s58ABC179 { margin-top:30pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s786E59B9 { margin-top:36pt; margin-bottom:24pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sCDABDDB1 { margin-top:24pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } FOURTH SECTION Application no. 4458/10 Tomas MIKALAUSKAS against Malta lodged on 13 January 2010 STATEMENT OF FACTS The applicant, Mr Tomas Mikalauskas, is a Lithuanian national, who was born in 1981 and detained in the Corredino Correctional Facility, Paola, Malta, at the time of the introduction of the application. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The background of the case 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 together with other Maltese and foreign suspects, were charged with possession, not for their exclusive use, of the plant cannabis and with association for the purposes of drug trafficking. They were brought before a magistrate and detained on remand. The applicant alleged that the conditions of detention in the prison amounted to inhuman and degrading treatment. There was no access to hot water and there were no heaters. The prison had very dim lights which did not allow an individual to read. No drinking water was provided and it had to be purchased privately and there were no facilities for washing clothes. The applicant who suffers from health problems, namely in relation to a dilated cerebral blood vessel which he claims can cause death, submitted that while in detention he had not received the relevant treatment which had been prescribed to him earlier. According to the medical certificate submitted (2008 Lithuania), this condition caused headaches and required yearly checks. In the event of increased dilation surgical treatment might be needed. The certificate recommended computed tomography (for the purposes of imaging by scan or x-ray) to be carried out in November-December 2009 and the avoidance of emotional strain or physical activity. On 30 June 2011 under Rule 49 § 2 of the Rules of Court the Judge Rapporteur requested the Government to submit information regarding the applicant’s bail (which is included below) and his medical situation. According to the only medical report submitted by the Government, which consisted of a summary of the applicant’s situation by the prison doctor dated 9 August 2011, the applicant’s condition was as follows: On admission the applicant was not on any regular treatment save for analgesics (such as paracetamol), which were continued, albeit with a change of medication. The applicant had given a history of recurring headaches and mental problems for which he had received regular psychotherapy in the United Kingdom. Subsequent tests (blood and chest x-ray) were unremarkable. He was seen by a forensic psychologist who was concerned about the anxiety due to incarceration but the applicant refused further sessions with the psychologist. On 13 January 2010 the applicant had asked to see a doctor because of his headaches. He was referred to hospital with the relevant Lithuanian medical report of 2008. On 14 July 2010 the applicant visited the prison clinic complaining that he had not been sent to hospital yet. The hospital was contacted the following day and an appointment was obtained for 8 March 2011. The applicant refused to attend hospital on that day. 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 was never taken to hospital for an x-ray. He persistently requested to be seen by a prison psychologist after the first visit and was repeatedly told he had to wait in line as the prison was overcrowded. He had even attempted to go to the psychologist in person. The latter gave him the same reply. The applicant claimed he was left suffering from headaches for days and the prison authorities refused to give him even simple paracetamol. At times he was given just one tablet which was not enough. Any other stronger medication had to be provided by the inmates themselves. Only after a whole year of detention was the applicant allowed to purchase his own medication. Lastly, the applicant conceded that he had refused to go to the medical appointment on 8 March 2011. Having lost trust in the medical staff at the prison and the prison authorities over time and feeling that he would soon be released on bail, he considered that he could seek appropriate medical assistance once released. 2.     The bail applications The applicant’s application to be granted bail dated 3 November 2009 was rejected by the Court of Magistrates as a Court of Criminal Inquiry (“CMCCI”) on 17 December 2009. After having considered the applicant’s personal (financial support from relatives) and academic situation (graduate in accounts), his character reference as supported by the testimony of the Counsel to the Municipality of Lithuania and the evidence that a third party was willing to lease an apartment to the applicant if he were granted bail, together with 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 other co-accused had already been granted bail, the CMCCI, nevertheless, considered that the applicant did not have other ties within the island capable of satisfying the court that he would remain in Malta. Another application for bail dated 24 December 2009 was rejected by the Criminal Court (“CC”) on 28 December 2009, on the basis that there was a serious danger that the proceedings could be thwarted, either because the applicant would not appear at trial, abscond or tamper with witnesses. Bearing in mind the international ramifications of the crime, the CC considered that he had no ties with Malta and the intervention of the Lithuanian Consulate, and its offer to accommodate the applicant and employ him, together with the fact that he was a EU citizen could not weigh in the balance. However, the CC acknowledged that the matter might be reviewed at a later date and specifically indicated that the proceedings be continued with speed and diligence in view of the applicant’s detention. A fresh application for bail dated 19 January 2010 was rejected on 26   January 2010 by the CMCCI, on the grounds that the position of the courts had already been made clear. A further request to be granted bail of 9 February 2010, making particular reference to the applicant’s medical condition, was rejected on 12   February 2010 by a decree of the Court of Magistrates, pending the proceedings. Having heard submissions and read the previous decrees rejecting bail the Court of Magistrates said it had nothing further to add to the position already taken by the courts previously. A further bail request was made on 14 April 2009 whereby the applicant highlighted that the witnesses in the case had been heard, that he had collaborated with the police, that he was an EU national with a clean record and was suffering from a health condition (as proved by the relevant medical documents already submitted to the court) in relation to which he should have undergone certain medical tests, that he had financial support and a job offer together with accommodation in Malta from the Lithuanian Consulate, and that the passage of time should weigh heavily in the decision for bail, particularly given the lack of special diligence by the prosecution. On 19 April 2010, the CC rejected the request considering that the considerations made in previous decrees were still valid. Yet another bail request was lodged on 1 July 2010 and rejected by the CMCCI on 6 July 2010 on the basis of the previous decrees. It requested the prosecution to determine the case expeditiously. The Attorney General had opposed all the above mentioned requests for bail. The applicant claimed to have been the only one of the suspects not to have been released on bail. Following another request for bail dated 16 July 2010, the CC, on 22   July   2010, having considered that the AG’s opposition was related to the fear 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 a number of conditions. The conditions included: a declaration by the Consul of Lithuania regarding the details of the applicant’s future residence and job in Malta; the applicant’s undertaking to appear in person for every act of the proceedings; that the applicant did not leave the islands, commit a crime while on bail, or speak to any witnesses; that he reported to the police station twice a day every day; and that the applicant be confined to his residence from 6.00 p.m. to 7.45 a.m., and that he deposit by way of bail bond EUR 50,000 and sign a further 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. By an application of 6 September 2010, while still in detention, the applicant requested that the financial guarantees be lowered to reflect his family’s income (as evidenced by supporting documents). The decision, if any, on this request has not been submitted to the Court. By another application of 15 October 2010 the applicant, who remained in detention, reiterated his request to lower the financial guarantees. Following the Attorney General’s objection, by a decision of 23 December 2010, the CMCCI, denied the request considering it should not alter the decision of the CC. Following another request, while still in detention, on 22 February 2011 the CMCCI reduced the bail deposit to EUR 40,000 but increased the personal guarantee to EUR 60,000. On 28 April 2011 another request was lodged whereby the applicant insisted on his inability to pay the said sums and noted that his girlfriend had moved to Malta and was ready to stand as surety for him. On 4   May   2011 the CMCCI, altered the conditions as follows: a deposit of EUR 30,000, or a third party surety of the same amount (upon proof of the financial situation of the surety) and EUR 15,000 as a personal guarantee. The applicant was released on bail on 7 July 2011. 3.     Other relevant information Criminal proceedings in respect of the applicant were still ongoing at the time of the parties’ replies to the rapporteur’s questions, October 2011. The applicant acknowledges that he did not take up constitutional redress proceedings claiming that he does not have sufficient funds. COMPLAINTS The applicant complains under Articles 2 and 3, in relation to his conditions of detention and in particular in so far as he had not been given the requisite medical treatment for his condition, under Articles 5 §§ 1-4 particularly in relation to the lawfulness of his detention and the lack of a remedy, that he had not been informed promptly of the reasons of his arrest and in so far as he had been regularly denied bail. He further complains under Articles 6 §§ 1-3, 7, 8, 10, 13, 14, and 17. QUESTIONS TO THE PARTIES 1.     Has the applicant exhausted domestic remedies in respect of his Article 3   complaint? In particular would constitutional redress proceedings, or an other alternative remedy, if any, provide for a possibility of an improvement in the material conditions of detention (including medical assistance) and compensation for the damage or loss sustained on account of such conditions (see Roman Karasev v. Russia , no. 30251/03, 25 November 2010) ?   2.     Has the applicant been denied access to the necessary medical treatment while in prison, in breach of Article 3 of the Convention?   3.     Did the conditions of the detention facility, notably the lack of access to hot water and heating, amount (alone or in combination with other conditions) to inhuman and degrading treatment? In particular, did they affect the applicant’s health condition?   4.     The Government are invited to submit the relevant details in respect of the conditions of the applicant’s detention, his medical condition and the relevant treatment. All the pertinent medical records and prescriptions in respect of the applicant should likewise be submitted (see Aleksanyan v.   Russia , no. 46468/06, § 147, 22 December 2008).   5.     Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention? Did the grounds given by the judicial authorities continue to justify the deprivation of liberty? Were such grounds “relevant” and “sufficient”, have the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Ilijkov v.   Bulgaria , no. 33977/96, § 77, 26 July 2001; I.A. v. France , 23 September 1998, Reports 1998-VII, § 102; and Contrada v. Italy , 24 August 1998, Reports 1998-V, § 54)?   6.     Were the conditions imposed on the applicant to ensure his appearance at the trial in conformity with the requirements of Article 5 § 3 of the Convention? In particular, were the financial guarantees requested of the applicant disproportionate by reference to the detainee’s assets (see Toshev v. Bulgaria , no. 56308/00, 10 August 2006; Neumeister v. Austria , 27 June 1968, Series A no. 8; Iwańczuk v. Poland , no. 25196/94, 15 November 2001, and Staykov v. Bulgaria , no. 49438/99, 12 October 2006)?   7.     In consequence, did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his continued detention, as required by Article 5 § 4 of the Convention?