CASE OF GAFÀ v. MALTA

FOURTH SECTION

CASE OF GAFÀ v. MALTA

(Application no. 54335/14)

JUDGMENT

STRASBOURG

22 May 2018

FINAL

08/10/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Gafà v. Malta,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Ganna Yudkivska, President,
Vincent A. De Gaetano,
Faris Vehabović,
Iulia Motoc,
Carlo Ranzoni,
Georges Ravarani,
Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 10 April 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 54335/14) 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 Maltese national, Mr Kenneth Gafà (“the applicant”), on 25 July 2014.

2. The applicant was represented by Dr J. Brincat, a lawyer practising in Marsa. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General.

3. The applicant alleged in particular that he suffered a breach of Article 5 § 3 of the Convention on account of the excessive conditions imposed in granting him bail.

4. On 27 January 2016 the complaint under Article 5 § 3 of the Convention concerning the applicant’s detention following the granting of bail was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1972 and is currently detained at the Corradino Correctional Facility, Paola.

A. Background to the case

6. On 11 December 2010 the applicant was arrested by the police on suspicion of having murdered his former partner.

7. On 13 December 2010 he was charged before the Court of Magistrates, as a Court of Criminal Inquiry, with inter alia, wilful homicide. He was remanded in custody thereafter.

8. It appears from the acts of the proceedings that from the applicant’s arraignment until August 2012, the applicant filed ten requests for bail which were all rejected after the relevant submissions were made, including oral hearings. Apart from the hearings related to the bail applications and other specific requests, fourteen hearings were held where scores of witnesses gave evidence and another six hearings were held where nothing happened and the case was adjourned.

B. First round of constitutional redress proceedings

9. In the meantime on 10 April 2012 the applicant instituted constitutional redress proceedings before the Civil Court (First Hall) in its constitutional competence. He complained of a violation of Article 5 § 3 of the Convention in so far as he had been detained for more than fifteen months since his arrest.

10. By a judgment of 27 June 2012 the Civil Court (First Hall) rejected the applicant’s claims. By a judgment of 23 November 2012 the Constitutional Court rejected the applicant’s appeal and confirmed the appealed judgment.

C. The granting of bail subject to conditions and the subsequent release

11. After the applicant had been held in custody for the maximum period of detention allowed by law, he became entitled to bail in accordance with Article 575(6)(a)(iii) of the Criminal Code (see relevant domestic law).

12. Consequently, following his request of 17 August 2012, by a decree of 22 August 2012, the Court of Magistrates granted the applicant bail subject to the following conditions: that he appears for all the scheduled hearings in the criminal proceedings; that he does not go abroad or abscond; that he does not contact or approach, directly nor indirectly, witnesses for the prosecution; that he does not commit a crime of a voluntary nature while released on bail; that he present himself at the District Police Station every day between eight a.m. and eight p.m.; that he be home not later than ten p.m. and that he does not leave home before six a.m. of the following day; that he inform the Police of any change of address by not later than twelve hours of such a change; that he deposit by way of security the amount of 15,000 euros (EUR) in the court registry; and that he undertake a personal guarantee of EUR 25,000. In the event of any bail condition being breached, the entire amount of EUR 40,000 would be forfeited in favour of the State.

13. On 3 September 2012 the Attorney General appealed against the decision of 22 August 2012, as he considered the conditions too lenient and that they would not serve as a sufficient deterrent against absconding or interfering with the proper administration of justice. He requested the court to set a higher deposit reflecting the nature of the crimes with which the applicant was accused and to amend the conditions by disallowing the applicant to be in locality R. where the victim and her family resided.

14. On 6 September 2012 the applicant objected to the Attorney General’s appeal, noting that he had remained in detention precisely because he could not fulfil the conditions imposed. At the same time he filed an application requesting the court to reduce the amount to be deposited by him. He explained that since he had been detained for more than twenty months he was unemployed, and thus he could not pay the relevant amount. He submitted two documents showing that he received unemployment benefits in the sums of EUR 1,262.22 and EUR 1,573.34 in 2009 and 2010 respectively and offered to explain his financial situation ( if necessary with further documentary evidence) during an oral hearing. It appears from the acts of the proceedings that he then submitted tax assessment forms of the previous twelve years.

15. By a decision of 7 September 2012 the Criminal Court, having examined the documents submitted by the applicant, rejected the Attorney General’s request to increase the deposit but added the condition that the applicant could not be in the vicinity of locality R. It also rejected the applicant’s request considering that the Court of Magistrates had correctly applied its discretion.

16. On 9 October 2012 the applicant filed another application requesting the court to reduce the amount of the deposit. He complained that although he had been in detention for twenty-two months, and was entitled to bail, he had nevertheless remained in detention since he (and his family) could not afford to pay such an excessive amount by way of deposit. He further noted that the main witnesses had already been heard in the committal proceedings.

17. On 10 October 2012 the Attorney General objected to the applicant’s new request, noting that the applicant was not reliable, and that his inability to pay the deposit showed that he would be unable to pay the personal guarantee if he were to breach his conditions. Moreover, the family of the victim, particularly her daughter, lived in fear of the applicant.

18. By a decree of 18 October 2012, having seen the request and the reply submitted by the Attorney General, the court rejected the applicant’s request.

19. On 4 December 2012 the applicant filed another application requesting the court to reduce the amount that he had to deposit. He noted that he had remained in detention for three and half months since the decree granting him bail due to his inability to pay. The Attorney General objected in view of the seriousness of the crime.

20. On 7 December 2012 the court again rejected the applicant’s request; it noted that its previous decisions had determined the deposit in order to strike the requisite balance between, on the one hand, the seriousness of the crime and the potential punishment, and, on the other hand, the obligation of the accused to fulfil the imposed conditions.

21. On 29 January 2013 the applicant filed yet another application requesting that the amount of deposit be reduced. He noted that he had been in detention for another five months since the decree granting him bail, and yet he was still not in a position to benefit from such bail - to which he was entitled by law - since he could not pay the deposit imposed. The Attorney General objected considering that the amount imposed was adequate in view of the severity of the crime and the circumstances of the case. On 5 February 2013 the applicant filed a note reiterating his request.

22. By a decree of 5 February 2013 the court, having considered the parties submissions, as well as its decree of 7 December 2012, was of the view that it should not alter the considerations made in the latter decision. It, thus, rejected the applicant’s request.

23. On 22 July 2013 the applicant requested the court to accept his mother Ms J.G. (and other relatives) as surety in lieu of the deposit. He referred to a property the relatives had inherited which they were willing to put forward as a guarantee instead of the deposit. The Attorney General requested that the applicant submit relevant evidence of the inheritance and the value of the property and that the court hear relevant witnesses in this connection, before making his final submissions. He further highlighted that a public deed would be required for the purposes of the relevant hypothec.

24. On 30 July 2013 the applicant submitted all the relevant documents concerning the property at issue which was valued at EUR 95,000.

25. On 2 August 2013 the court accepted that the applicant’s mother stand as surety by means of a hypothec on the above-mentioned property which she owned together with other relatives. Such property was to serve as a guarantee for the applicant observing the conditions imposed; in the event of a breach of any of those conditions, the property would be forfeited in favour of the Government of Malta.

26. Subsequently on 6 August 2013 the applicant having signed a personal guarantee of EUR 25,000 and his mother having effected the relevant hypothec as guarantee, the applicant was released from custody after thirty-two months of pre-trial detention.

27. In the meantime the committal proceedings and hearing of witnesses continued throughout this time; further witnesses were heard during three hearings and another four hearings were adjourned. On 31 July 2013 the prosecuting authority had declared that it did not have further evidence to produce.

D. Second round of constitutional redress proceedings

28. In the meantime on 6 February 2013 the applicant instituted a new set of constitutional redress proceedings, complaining of a violation of Article 5 § 3 of the Convention in connection with the “exorbitant sum” requested (in particular reference to the sum set as deposit) which did not allow him to effectively enjoy bail.

29. By a judgment of 3 July 2013 the Civil Court (First Hall) in its constitutional competence rejected the applicant’s claims.

It held that when a court accepted that an applicant had to be granted bail, that court had to establish the proper conditions which the applicant had to satisfy to be released and yet appear for court proceedings. If the guarantees included the deposit of a sum of money, such pecuniary condition had to be considered by reference to the person of the accused and his means as well as his relation with the person who would act as his surety. The court referred to the Court’s judgment of Iwanczuk v. Poland (no. 25196/94, § 66, 15 November 2011) where it had been held that the accused whom the judicial authorities declared themselves prepared to release on bail must faithfully furnish sufficient information, that can be checked if need be, about the amount of bail to be fixed. The court noted that the applicant did not satisfy this obligation. It was his duty to provide the courts with information on his income, savings and list his assets. Nevertheless, the applicant had only provided copies of self-assessment forms for purposes of income tax for the years between 1998 and 2011. According to the court, if an applicant argued that the deposit was too high, he had to show the court what he could afford by providing a list of his assets and property, even if this meant that he had to conduct researches in the Public Registry, and provide the relevant documentation. In its view an applicant had to show not only that he did not have the necessary means to deposit the sum requested but also that he was in an objective impossibility of finding the necessary means. He further had to show that he was unable to find persons who offered to act as surety. It was only when all this was shown that an applicant would have satisfied his duty to furnish sufficient information, thus enabling the court to make an objective assessment.

30. In the court’s view, in the present case, bearing in mind the seriousness of the crime and the potential punishment, the applicant had not brought enough evidence before the courts of criminal justice to substantiate his claim that those courts had imposed excessive conditions (including that referring to the amount of deposit). It further noted that the Constitutional Court [in the first round of proceedings] had not been convinced that there would be no tampering with evidence. Indeed even though the collection of evidence had come to an end, one had to guarantee that the evidence remained intact and thus relevant guarantees were necessary.

31. The applicant appealed.

32. By a judgment of 31 January 2014, the Constitutional Court rejected the applicant’s appeal and confirmed the judgment of the first court.

33. The Constitutional Court referred to its judgment in the case The Police v. Austine Eze and Osita Anagboso Obi, of 25 October 2013, where it had held that there must be proportionality between the amount to be deposited by the applicant for his release on bail and his financial circumstances. The level of bail set out should not be too high and it should ensure the presence of the accused at the various stages of the criminal proceedings. It also made reference to the Court’s judgment in Mangouras v. Spain ([GC], no. 12050/04, § 79, ECHR 2010) as well as the Constitutional Court’s judgment Salvatore Gauci v. Attorney General, of 31 July 1998, where it had been held that in establishing the amount to be deposited as security, the court must also consider other circumstances such as the seriousness of the offence and the danger to society.

34. The Constitutional Court held that the onus of proving that the amount of deposit was too high for the applicant when considering his financial means lay with the applicant himself. An applicant must provide information to the court on his financial situation and on the real possibility of finding a surety able to guarantee the observance of the conditions imposed. In the present case, the Constitutional Court held that the latter option had not been contemplated by the applicant and it was only after various requests to have the amount reduced that he eventually proposed his mother to act as a surety. It noted that although the applicant’s mother did not own the tenement she had used for the purposes of the guarantee, it was already in her possession for a period of time before the last application for the reduction of the amount was filed. Thus, the applicant could not argue that he could not have taken this course of action before. Although the applicant relied on the Court’s judgment of Iwanczuk (cited above), where a violation had been found on the basis that it took four months for the Polish authorities to adjust the conditions for bail, the Constitutional Court held that (even if this were the case), the applicant – who was legally represented ‑ had not explored all avenues to satisfy the courts with an adequate guarantee for the observance of the conditions of bail. No explanation as to why he only obtained a guarantee in the form of a surety at a subsequent stage was provided by the applicant.

35. Noting that the applicant had stated that at times he worked as a bus driver and as a horse trainer, apart from other activities, the Constitutional Court distinguished the applicant’s case from that of a person who was living on relief payments. The fact that the applicant had at times worked and had a salary or wage made the need to provide information to the court on his means more relevant.

36. On the fixing of the amount of the deposit, the Constitutional Court referred to Article 576 of the Criminal Code (see relevant domestic law below) which provided the factors to be considered for this purpose. Under Maltese law these included the seriousness of the offence and the applicable punishment. The Constitutional Court considered that although the law also referred to the financial situation of the person accused, this factor was not to be taken in isolation – it was for the court fixing the amount of deposit to consider all the factors taken together and not separately. In the present case bearing in mind those factors, the amount of deposit of EUR 15,000 was justified especially since the law provided for the opportunity to provide a surety – a course of action subsequently undertaken by the applicant.

37. In the Constitutional Court’s view the criminal courts’ concern that the applicant did not give the necessary guarantees that there would not be any tampering with evidence, subsisted throughout the whole criminal proceedings.

E. Other information

38. By a decision of 7 April 2014 the applicant was found guilty of breaching his bail conditions and his bail was revoked. Further bail requests were lodged and rejected until 26 January 2015 when a bill of indictment was issued against the applicant. From August 2013 until his indictment some ten hearings were held where nothing happened and the case was adjourned.

39. On 16 June 2015 the Criminal Court was informed that a plea bargain had been concluded between the applicant and the prosecution.

40. On 20 July 2015, following the applicant’s admission to all the charges against him, the Criminal Court pronounced a guilty verdict and sentenced the applicant to thirty-five years imprisonment and to the payment of court experts’ fees.

II. RELEVANT DOMESTIC LAW

41. Article 575 of the Criminal Code reads as follows:

“(1) Saving the provisions of article 574(2), in the case of -

(i) a person accused of any crime against the safety of the Government, or

(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.

...

(5) Where in the case of a person accused of a crime in respect of which the Court of Magistrates has proceeded to the necessary inquiry, the Attorney General has not either -

(a) filed the indictment, or

(b) sent the accused to be tried by the Court of Magistrates as provided in paragraph of article 370(3)(a) or in article 433(5) or in similar provisions in any other law within the terms specified in subarticle (6), to run from the day on which the person accused is brought before the said court, or from the day on which he is arrested as provided in article 397(5), that person shall be granted bail.

(6) (a) The terms referred to in the preceding subarticle are:

(iii) twenty months in the case of a crime liable to the punishment of imprisonment of nine years or more.”

42. Article 576, dealing with the amount of security, provides 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.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

43. The applicant complained that he had been detained on remand for an unreasonable period of time due to the excessive amount of deposit that he was ordered to pay as one of the conditions to be released on bail. He relied on Article 5 § 3 of the Convention, which reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A. Scope of the complaint

44. The Court notes that the applicant was arrested on 11 December 2010 and charged before the Court of Magistrates as a Court of Criminal Inquiry on 13 December 2010. He was remanded in custody. After having remained in custody for a period that exceeded the limit established under Maltese law (of twenty months in circumstances such as those of the present case) the Court of Magistrates granted bail to the applicant on 22 August 2012, subject to the condition, inter alia, of depositing EUR 15,000 in the registry of the court. Since the applicant was not in a position to deposit such an amount, he remained in custody. He was subsequently released on 6 August 2013 when his mother stood as surety.

45. The present complaint concerns solely the period during which the applicant was held in custody following his granting of bail, namely from 22 August 2012 (the day on which he was granted bail subject to conditions which he could not satisfy) to 6 August 2013 (the day on which the applicant was released on bail), that is, one year less sixteen days.

B. Article 37

46. Article 37 of the Convention reads as follows:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”

1. The parties’ submissions

47. The Government submitted (in their first round of observations) that the applicant was no longer interested in pursuing his application given that he did not inform the Court that on 7 April 2014 he had breached his bail conditions and that later, in 2015, he had admitted to charges and was then sentenced accordingly, meaning that his detention on remand would be deducted from his sentence. They relied on Abdi Ahmed and Others v. Malta ((dec.), no. 43985/13, 16 September 2014, and Cherif and Others v. Italy, no. 1860/07, 7 April 2009) and considered that the application should be struck out on the basis of Article 37 § 1 (a) or (c).

48. In their second round of observations the Government insisted that the Court should strike out the application under Article 37 § 1 (c). They noted that the Court had a wide discretion in identifying grounds capable of being relied on to strike out an application. They relied on K.F. v. Cyprus (no. 41858/10, 21 July 2015) and the case-law cited therein. In the Government’s view the fact that the applicant admitted to the charges of wilful homicide, which exposed him to a long term of imprisonment, meant that he could no longer complain about his pre-trial detention. This was so given that, following his admission, his pre-trial detention would be deducted from his final punishment. Thus, in their view, the applicant’s only reason to continue proceedings before the Court was clearly to obtain compensation ‘on the basis of gratuitous pretences’. Indeed he had not put forward any other valid reason to continue with the examination of the application. The Government thus considered that the Court should strike out the application.

49. The applicant submitted that the subsequent facts mentioned by the Government were irrelevant to his complaint under Article 5 concerning pre-trial stage. Moreover, he noted that the revocation of his bail had been due to breaching a curfew condition, as opposed to failing to appear in court.

2. The Court’s assessment

50. The Court observes that the cases cited by the Government in connection with Article 37 § 1 (a) concern situations where applicants had lost contact with their lawyers and were thus considered to have lost interest in pursuing their cases before the Court. In the present case the circumstances are entirely different. There is no doubt that the applicant is still in contact with his legal representative and that he still wishes to pursue his application, as is evidenced by his submissions in the case (see, mutatis mutandis, Peňaranda Soto v. Malta, no. 16680/14, § 32, 19 December 2017; and, a contrario, V.M. and Others v. Belgium (striking out) [GC], no. 60125/11, § 40, 17 November 2016).

51. Accordingly, the Court rejects the Government’s request to strike the application out of its list of cases under Article 37 § 1 (a) of the Convention.

52. In order to decide whether the application should be struck out of the list in application of Article 37 § 1 (c), the Court must consider whether the circumstances lead it to conclude that “for any other reason ... it is no longer justified to continue the examination of [it]”. It is clear from this provision that the Court enjoys a wide discretion in identifying grounds capable of being relied upon in striking out an application on this basis, it being understood, however, that such grounds must reside in the particular circumstances of each case (see Association SOS Attentats and de Boery v. France [GC], (dec.), no. 76642/01, §§ 36-37, ECHR 2006‑XIV).

53. Case-law illustrates this point. The Court has, for example, ruled that in certain circumstances it may be appropriate to strike an application out of its list of cases under this provision on the basis of a unilateral declaration by the respondent Government even though the applicant wishes the examination of the merits of his case to be continued (see Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, § 75-77, ECHR 2003‑VI; Meriakri v. Moldova (striking out), no. 53487/99, 1 March 2005; and Van Houten v. the Netherlands (striking out), no. 25149/03, ECHR 2005‑IX). It has also proceeded in that manner in cases where the applicants had reached an agreement or settlement with the domestic authorities which largely satisfied the demands that they had made under the Convention, and had thus lost their victim status (see, for example, Calì and Others v. Italy (striking out), no. 52332/99, 19 May 2005; and La Rosa and Alba v. Italy (striking out), no. 58274/00, 28 June 2005); as well as in the case that an out of court agreement had been signed, taken together with other circumstances (see, for details, Association SOS Attentats and de Boery, cited above, §§ 38-39) or because the matter complained of was no longer a live issue (see Oya Ataman v. Turkey (striking out), no. 47738/99, §§ 25‑26, 22 May 2007).

54. It has also struck applications out of its list on the basis of this provision on the ground that the applicant in question had died in the course of the proceedings and that no heir or close member of their family had expressed the wish to pursue the proceedings (see, for example, Gładkowski v. Poland (striking out), no. 29697/96, 14 March 2000; and Sevgi Erdoğan v. Turkey (striking out), no. 28492/95, 29 April 2003) or that the heir who expressed such an intention had no legitimate interest in that regard (see Léger v. France (striking out) [GC], no. 19324/02, § 50, 30 March 2009; and S.G. v. France (striking out), no. 40669/98, 18 September 2001), or, in the light of a lack of diligence on the part of the applicant (see, for example, Hun v. Turkey (striking out), no. 5142/04, 10 November 2005; and Mürrüvet Küçük v. Turkey (striking out), no. 21784/04, 10 November 2005) or his or her lawyer (see, for example, Falkovych v. Ukraine (striking out), no. 64200/00, 4 October 2005; and Fleury v. France (dec.), no. 2361/03, 6 July 2006), or on the ground that the applicant had failed to appoint a lawyer to represent him pursuant to Rule 36 §§ 2 and 4 (a) of its Rules of Court (see Grimaylo v. Ukraine (dec.), no. 69364/01, 7 February 2006).

55. The Court has also considered that it was no longer justified to examine the case and struck out the relevant applications from its list under Article 37 § 1 (c) in cases where the applicant was no longer at risk of expulsion (see, for example amongst many others, Khan v. Germany [GC], no. 38030/12, §§ 38-39, 21 September 2016); or where proceedings concerning the same subject matter where simultaneously pending before the court of a contracting state (see Kovačić and Others v. Slovenia [GC], nos. 44574/98 and 2 others, § 267, 3 October 2008); or following a pilot judgment procedure where it was held that victims of a systemic situation are more appropriately protected in the execution process (see Burmych and Others v. Ukraine (striking out) [GC], nos. 46852/13 et al, § 202, ECHR 2017 (extracts)).

56. The present case cannot be compared to any of the above. In the instant case the Government argued that the application should be struck out under Article 37 § 1 (c) because the applicant’s pre-trial detention would be deducted from his final punishment, and he was therefore only seeking monetary compensation before this Court. In the first place, the Court observes that the deduction of the period of pre-trial detention from the relevant sentence of imprisonment would be the case for any individual who is eventually found guilty and sentenced to jail time, irrespective of whether his pre-trial detention was Convention compatible or not. Secondly, the Court reiterates that, the protection granted through Article 5 § 3 applies to “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c)” without any exclusion, and thus does not provide protection only to persons who are later acquitted. The rights derived from Article 5 § 3 are separate from, and their examination independent of, any detention upon conviction by a competent court. More importantly, to accept that the outcome of a trial could have an impact on any complaints concerning pre-trial detention would mean that any such complaint would be premature in the absence of a final judgment in the criminal proceedings, which is evidently not the case under the Court’s current case-law (see, by implication, amongst many others, Kudła v. Poland [GC], no. 30210/96, ECHR 2000‑XI; McKay v. The United Kingdom [GC], no. 543/03, ECHR 2006‑X; and Podeschi v. San Marino, no. 66357/14, 13 April 2017).

57. Furthermore, the Court considers that the applicant’s wish to seek an acknowledgement of his rights and relative compensation is in line with Articles 34 and 41 of the Convention, and the Government’s remarks in that connection are manifestly without reasonable foundation.

58. In view of the above considerations, the Court finds no reason justifying a discontinuation of the examination of the case.

59. The Court therefore rejects the Government’s request for the application to be struck out under Article 37 § 1 (c) of the Convention and continues the examination of the case.

60. In so far as the Government’s reliance on the applicant’s failure to inform the Court that he had breached his bail conditions and had later been found guilty and sentenced, could be considered as an objection on the grounds of abuse of petition, the Court will consider the matter below.

C. Admissibility

1. Abuse of Petition

61. The Court reiterates that any conduct of an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and impedes the proper functioning of the Court or the proper conduct of the proceedings before it constitutes an abuse of the right of application (see Miroļubovs and Others v. Latvia, no. 798/05, §§ 62 and 65, 15 September 2009). However, the rejection of an application on grounds of abuse of the right of application is an exceptional measure (see Miroļubovs and Others, cited above, § 62) and has so far been applied only in a limited number of cases. In particular, the Court has rejected applications as abusive under Article 35 § 3 of the Convention if they were knowingly based on untrue facts or misleading information (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014; and the cases cited therein) or if they contained offensive language (see, for example, Řehák v. Czech Republic (dec.), no. 67208/01, 18 May 2004) or if the principle of confidentiality of friendly-settlement proceedings had been breached (see, for example, Tsonev v. Bulgaria, (dec.) no. 44885/10, 8 December 2015; and Ausad Valimised Mtü v. Estonia (dec.), no. 40631/14, 27 September 2016).

62. The Court notes that none of the above-mentioned situations apply to the present case. In particular it is noted that the applicant’s complaint concerns his detention, which he claimed was contrary to Article 5 § 3, in the period of 22 August 2012 to 6 August 2013. It follows that the subsequent events leading to further detention periods in 2014 and 2015 cannot be considered as relevant for that assessment, and thus as an omission in bad faith by the applicant so as to question his behaviour. It follows that any objection to that effect must be dismissed.

2. Conclusion

63. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

D. Merits

1. The parties’ submissions

(a) The applicant

64. The applicant complained that the imposition of the bail bond was excessive in his case as he was not earning any money at the time. He had eventually been released only thanks to his mother who in turn had to involve other family members who with her co-owned the property they used as a guarantee. The applicant submitted that he had been in custody for more than the maximum allowed by law. In his view after twenty months he had to be released on bail as of right. Nevertheless, he had remained in custody for thirty-two months.

65. In respect of the obligation of special diligence on the authorities the applicant noted that the procedural law was the same for all accused persons, irrespective of whether a person was detained or not. The applicant, like everyone else, appeared in court every six weeks.

(b) The Government

66. The Government submitted that the applicant was granted bail on 22 August 2012 in adherence with the twenty month time-limit imposed by domestic law. In their view the conditions imposed on the applicant (see paragraph 12 above) were specifically designed to ensure appearance at trial and to eliminate any form of tampering with evidence since this was still being adduced by the prosecution even after the applicant was granted bail.

67. As to the monetary guarantee, they noted that the amount had to be assessed by reference to the accused and his assets, and in light of its deterrent effect. The Government submitted that the amount fixed with the granting of bail was in line with Article 576 of the Criminal Code (see paragraph 42 above), which in turn was in line with the Convention.

68. The Government submitted that the applicant only started to produce evidence of his assets and access to funds when he filed a note on 30 July 2013. From the documentation it transpired that the applicant had been in gainful employment prior to the commission of the offence; moreover the domestic courts took into consideration the gravity and nature of the offence, as well as the risk of tampering with evidence. In the Government’s view in such cases monetary guarantees should not be very low “to avoid the evasion of the deterrent effect of such guarantees on the basis of mere claims that an accused does not have access to funds”. In the applicant’s case on 2 August 2013 he was allowed to provide a guarantee and thus he only had to sign a personal guarantee of EUR 25,000 (which was only to be forfeited in the event of a breach, and was thus not deposited in court) and ‑ instead of depositing EUR 15,000 ‑ he was allowed to provide an alternative guarantee by hypothecating his mother’s property.

69. As to the special diligence requirement the Government noted that the applicant was arraigned in December 2010 and his case was finally concluded four and a half years later.

2. The Court’s assessment

(a) General principles

70. According to the Court’s case‑law, the guarantee provided for by Article 5 § 3 of the Convention is designed to ensure the presence of the accused at the hearing (see Mangouras v. Spain [GC], no. 12050/04, § 78, ECHR 2010). Therefore, the amount of bail must be set by reference to the detainee, his assets and his relationship with the persons who are to provide the security, in other words to the degree of confidence that is possible that the prospect of loss of the security or of action against the guarantors in case of his non-appearance at the trial will act as a sufficient deterrent to dispel any wish on his part to abscond (see Neumeister v. Austria, 27 June 1968, § 14, Series A no. 8). Since the issue at stake is the fundamental right to liberty guaranteed by Article 5, the authorities must take as much care in fixing appropriate bail as in deciding whether or not continued detention is indispensable. Furthermore, the amount set for bail must be duly justified in the decision fixing bail and must take into account the accused’s means (see Mangouras, cited above, §§ 79-80). The domestic courts’ failure to assess the applicant’s capacity to pay the sum required may lead the Court to find a violation. However, the accused whom the judicial authorities declare themselves prepared to release on bail must faithfully submit sufficient information, that can be checked if need be, about the amount of bail to be fixed (see Toshev v. Bulgaria, no. 56308/00, § 68, 10 August 2006; and Iwanczuk v. Poland, no. 25196/94, § 66, 15 November 2011).

71. Even where the domestic courts’ decisions refusing bail are based on “relevant” and “sufficient” reasons, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings. The Court has considered that this criterion must be of some relevance even in respect of decisions concerning the fixing of bail conditions after bail is formally granted if the individual remains in detention as a result of his inability to pay (see Kolakovic v. Malta, no. 76392/12, § 74, 19 March 2015).

(b) Application to the present case

72. The Court notes that in the present case the applicant was granted bail subject to, inter alia, financial conditions on 22 August 2012. He filed four applications requesting the reduction of the amount to be deposited which were all rejected, until his fifth application ‑ nearly a year later ‑ where through a decision of 2 August 2013 the domestic court accepted his request that his mother stand as surety.

73. The Court observes that the duration of the detention in question, following the granting of bail, may raise an issue under the Convention (compare, Mikalauskas v. Malta, no. 4458/10, § 122, 23 July 2013 ‑ post bail detention of twelve months; and Kolakovic, cited above, § 53, ‑ seven‑month detention following clarification of the applicant’s financial situation post bail). Indeed the fact that the applicant remained in custody for nearly another twelve months after being granted bail suggests that the domestic courts had not taken the necessary care in fixing appropriate bail (see, mutatis mutandis, Kolakovic, cited above, § 72).

74. The Court notes that despite the Government’s submissions, it is clear, from the acts of the proceedings and the decision of the domestic court of 7 September 2012 (see paragraphs 14 and 15 above), as well as those of the constitutional jurisdictions (see for example paragraph 29 above) that the applicant had already submitted relevant documentation concerning his financial situation before the decision of 7 September 2012, that is a few days after he was granted bail subject to conditions. In fact, the Court observes that none of the domestic courts’ decisions, that is the decisions of the courts of criminal justice, refer to an inability to make a balanced decision on account of a lack of documentation (see, mutatis mutandis, Mikalauskas, cited above, § 122). The Court notes that the Government’s reference to the documentary evidence submitted on 30 July 2013 concerned documentation which became relevant only after the applicant’s request of a week earlier and is totally unrelated to his multiple previous requests to lower the amount of deposit due to his inability to pay.

75. All those requests were rejected on the basis of the seriousness of the crime and the fear of tampering with evidence, despite the fact that bail had already been granted. Further, none of those decisions explained how the amount of bail had been set by reference to the applicant’s assets and his means. Nor did any of those decisions assess the applicant’s capacity to pay the sum required. Neither did the court delivering those decisions consider that the applicant had failed to prove his financial situation, an argument assumed by the Constitutional Court (see paragraph 34 above) ex post facto and without finding substantiation in the refusal decisions. The Court observes that, despite the continued detention following the granting of bail subject to the contested financial conditions as a result of his inability to pay, at no stage ‑ throughout a period of slightly under a year during which the applicant filed several requests - did the courts consider it adequate to decrease the amount of deposit allowing him a real possibility to benefit from bail. No relevant or sufficient reasons connected to the applicant’s financial situation have been put forward for such a course of action by the domestic courts.

76. In conclusion, the Court considers that in the present case there has been a violation of Article 5 § 3 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

77. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

78. The applicant claimed 6,000 euros (EUR) in respect of non‑pecuniary damage.

79. The Government submitted that the amount of non-pecuniary damage should not exceed EUR 1,500.

80. The Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage that may have been sustained by the applicant.

B. Costs and expenses

81. The applicant also claimed EUR 6,960.30 in costs and expenses, covering EUR 3,460.30 (as per attached bill of costs) for his own costs and expenses incurred for two sets of constitutional redress proceedings; EUR 1,000 for costs and expenses (including legal fees) incurred before the domestic courts in connection with his bail requests and EUR 2,500 for those incurred before the Court.

82. The Government considered that the sum of EUR 2,015.81 in relation to the first set of constitutional proceedings as well as that of EUR 1,000 concerning bail requests were not incurred in connection with the subject of the application before the Court. They further submitted that the sum of EUR 1,273.26 due to the Government in court costs in relation to the second set of constitutional proceedings had not yet been paid. Lastly, they considered that costs and expenses for proceedings before this Court should not exceed EUR 1,500.

83. In the present case, the Court rejects the claim for costs and expenses in the domestic proceedings relating to the first set of constitutional proceedings since they were not related to the violation found by the Court. The same holds for costs related to the bail requests. In so far as some of the latter costs could have been related to the requests to vary the deposit, and thus were related to the violation in the present case, they have not been substantiated. The Court further notes that the sum of EUR 1,273.26 contested by the Government has not been claimed by the applicant and thus no finding is necessary on the matter. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 for the proceedings before the Court and for costs and expenses in relation to the second set of constitutional redress proceedings.

C. Default interest

84. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT,

1. Declares, unanimously, the application admissible;

2. Holds, unanimously, that there has been a violation of Article 5 § 3 of the Convention;

3. Holds, by five votes to two, that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage that may have been sustained by the applicant;

4. Holds, unanimously,

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 22 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena TsirliGanna Yudkivska
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge De Gaetano is annexed to this judgment.

G.Y.
M.T.

PARTLY DISSENTING OPINION OF JUDGE DE GAETANO

1. I regret that I cannot agree with paragraph 80 of the judgment and, consequently, with point 3 of the operative provisions holding that the finding of a violation in this case is sufficient just satisfaction for any non‑pecuniary damage sustained.

2. In the instant case the applicant became entitled to bail on the grounds that the committal proceedings in his case had dragged on for more than one year and nine months. However, the amount of the security, in so far as it related to the actual deposit of money, was way above what he could afford. He therefore remained in pre-trial detention for an additional eleven months and fifteen days (from 22 August 2012 to 6 August 3013) until his mother, presumably after convincing other members of her family who, together with her, owned some immoveable property, hypothecated this property so as to enable her to stand as a surety for the amount fixed by the courts of criminal justice. Throughout this additional period, committal proceedings ‑ which in principle, and according to Article 401 of the Criminal Code should be completed within a period of one month, extendible for a maximum of three months – continued, and were only finally terminated sometime towards the end of 2014. The Bill of Indictment was filed in the Criminal Court only on 26 January 2015, and the applicant was finally sentenced on 20 July 2015. The proceedings at one level of jurisdiction, therefore, lasted from 13 December 2010 (when the applicant was first arraigned in court) to 20 July 2015 – a period of over four years and six months. During this period a number of sittings were scheduled before the court of committal, where nothing happened and the case was simply adjourned (see paragraphs 8, 27 and 38).

3. Now, it is true that before this Court the applicant did not complain under Article 6 § 1 of the Convention that he was not tried within a reasonable time, even though a period of four years and six months for one level of jurisdiction is prima facie problematic (see, for example, Temeşan v. Romania, no. 36293/02, §§ 53-58, 10 June 2008; for civil proceedings, Kédiszentkereszti Bíró v. Hungary, no. 236/12, §§ 11 to 13, 18 October 2016). Nor did he focus his complaint, under Article 5 § 3, on the fact that the courts of criminal justice did not act with the “special diligence” required when people are denied bail (his comments on the “special diligence” requirement were quite vague – see paragraph 65). His main thrust was, in essence, that the domestic courts had failed to make a proper assessment of his ability (or rather, inability) to pay the sum required. Nevertheless, the time factor is important, as alluded to in paragraph 71, because the violation of his fundamental right under Article 5 § 3 is compounded with the passage of time.

4. This Court has found the decisions of the courts of criminal justice not to have been Convention-compliant (paragraph 74). It has also found that the constitutional jurisdictions failed to grasp the nettle of the problem (paragraph 75). Nevertheless in this case it has found that the finding of a violation is sufficient just satisfaction. Why? No reason whatsoever is given. Was it, perhaps, because the applicant was a bad guy, who eventually admitted to the murder charge and was sentenced to thirty-five years imprisonment? If that were a good reason for not granting non-pecuniary damage, then the Court should not grant a penny in the hundreds of conditions-of-detention cases before it under Article 3 – none of those detained are confined to their cells by virtue of some monastic vow! In Del Río Prada v. Spain [GC] (no. 42750/09, ECHR 2013), the applicant, with a history of multiple convictions for innumerable crimes, including terrorist activities, attempted murders and murder, was awarded EUR 30,000 by way of compensation for the illegality of her detention (the violation of Article 7 leading to a violation of Article 5 § 1 of the Convention). Sergey Denisov’s detention in breach of Article 5 § 3 attracted non-pecuniary damage to the tune of EUR 7,000 – admittedly his pre-trial detention lasted some seven years, but he was eventually convicted of multiple counts of organising a criminal group, murder and assault, preparing explosive devices and unlawfully storing and carrying firearms, and sentenced to life imprisonment (see Sergey Denisov and Others v. Russia, nos. 1985/05 and 4 others, 19 April 2016). In a more recent case, Lisovskij v. Lithuania (no. 36249/14, 2 May 2017), the applicant was convicted of leading an armed criminal organisation and of possession of a very large amount of narcotic and psychotropic substances with the intention to distribute them, and was sentenced to thirteen years’ imprisonment. Notwithstanding that his case was still pending on appeal when the Court delivered its judgment, the Article 5 § 3 violation attracted EUR 4,700 in respect of non-pecuniary damage. These are just a few examples.

5. In the instant case it cannot be argued that the period of detention was somehow of merely a few days’ duration, as seems to have been the Grand Chamber’s implicit argument in Aquilina v. Malta [GC] (no. 25642/94, ECHR 1999‑III), where the detention lasted for just under nine days and where the core issue was the lack of automatic power on the part of the judicial authority to order release in the light of the domestic law as it then stood (§§ 49-50 and 53 of that judgment). Nor can it be said, as the Grand Chamber attempted to argue in respect of the fourth applicant in Ibrahim and Others v. the United Kingdom [GC] (nos. 50541/08 and 3 others, § 315, ECHR 2016), that the applicant Gafà still has some form of remedy open to him domestically. He does not – well, at least not in respect of the Article 5 § 3 violation. He applied to this Court precisely because the domestic constitutional jurisdictions had got it wrong. By holding that the finding of a violation constitutes sufficient just satisfaction for any non‑pecuniary damage sustained by the applicant, the Court is indirectly giving credence to the Government’s argument that the only reason why the applicant continued proceedings before the Court was “to obtain compensation” (see paragraph 48), an argument which it ostensibly rejected in paragraph 57. But then, not only the Court but even the Government was inconsistent – in their submissions in respect of Article 41 of the Convention, the Government did not argue that a finding of a violation would be sufficient; their argument was that the amount of non-pecuniary damage should not exceed EUR 1,500. By virtue of a triple somersault, the Court ignored all this – hence paragraph 80.

6. Article 5 § 5 of the Convention provides that everyone who has been the victim of arrest or detention in contravention of the provisions of Article 5 shall have an enforceable right to compensation. We therefore expect, at domestic level, a right to compensation, which we then however go on to deny on the basis of the wording of Article 41. In their dissenting opinion in Nikolova v Bulgaria [GC] (no. 31195/96, ECHR 1999‑II) – a case which involved a violation of Article 5 § 3 and § 4 – Judges Bonello and Maruste noted that the Convention:

“...confers on the Court two separate functions: firstly, to determine whether a violation of a fundamental right has taken place, and, secondly, to give ‘just satisfaction’ should the breach be ascertained. The Court has rolled these two distinct functions into one. Having addressed the first, it feels absolved from discharging the second.”

They then proceeded to examine the proper construction to be given to Article 41:

“‘If necessary’ is applicable only where there is a concurrence of both the conditions posited by Article 41, i.e. the finding of a violation of the Convention and the ability of the domestic system to provide for some partial reparation. When these two conditions combine (and only then) may the Court find it unnecessary to award additional just satisfaction. This is what Article 41 clearly states. In cases like the present one, in which the internal law provides for no satisfaction at all, the ‘if necessary’ condition becomes irrelevant and the Convention leaves the Court no discretion at all as to whether to award compensation or not.”

To my mind, the same applies in cases where, although in theory there was a possibility of obtaining compensation, the domestic courts, as happened in the instant case, got it wrong. And dulcis in fundo they add:

“Finding a violation of a fundamental right is no comfort for the Government. Stopping there is no comfort for the victim. A moral thirst for justice is hardly different from a physical thirst for water. Hoping to satisfy a victim of injustice with cunning forms of words is like trying to quench the thirst of a parched child with fine mantras.”

I could not agree more.

 

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