THIRD SECTION
DECISION
Application no. 22246/18
Joseph FEILAZOO
against Malta
The European Court of Human Rights (Third Section), sitting on 10 December 2019 as a Committee composed of:
Georgios A. Serghides, President,
Erik Wennerström,
Lorraine Schembri Orland, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 7 May 2018,
Having regard to the declaration submitted by the respondent Government on 27 September 2019 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Joseph Feilazoo, is a Nigerian national, who was born in 1975 and lives in Safi.
The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General.
The applicant complained under Article 6 § 1 and 3 (c) about the lack of assistance of a lawyer at pre-trial stage, when he had given his consent to undergo an x-ray, which found drugs in his intestines. He further complains under Article 7 about the discretion of the Attorney General in deciding in which court to try an accused.
The application had been communicated to the Government.
THE LAW
The applicant complained about the lack of assistance of a lawyer at pre‑trial stage, when he had given his consent to undergo an x-ray, which found drugs in his intestines and about the discretion of the Attorney General in deciding in which court to try an accused.
He relied on Articles 6 § 1 and 3 (c) and 7 of the Convention, respectively.
After the failure of attempts to reach a friendly settlement, by a letter of 27 September 2019 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“In the circumstances, Government hereby wishes to express - by way of unilateral declaration - its acknowledgement of the violation of Articles 6 § 1 read with Article 6 § 3 and 7 the Convention.
Consequently, the Government is prepared to pay the applicant the sum of EUR 2,500 as just satisfaction which it considers to be reasonable in the light of the Court’s case-law, as in Seychell v. Malta [GC] (application number 43328/14).
The Government would suggest that the above information might be accepted by the Court as ‘any other reason’ justifying the striking out of the case from the Court’s list of cases, as referred to in Article 37 (1) (c) of the Convention.
The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 (1) of the Convention. In the event of failure to pay this sum within the said three month period, the Government undertakes to pay simple interest on it from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
This payment will constitute the final resolution of the case.”
By a letter of 18 October 2019, the applicant indicated that he was not satisfied with the terms of the unilateral declaration on the ground that the award was too low and did not even cover lawyer’s fees for bringing an application before the Court.
The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court has examined the declaration in the light of the principles emerging from its case‑law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
The Court has established in a number of cases, including those brought against Malta, its practice concerning complaints about the violation of Article 7 in the circumstances complained of (see Camilleri v. Malta, no. 42931/10, 22 January 2013, and Seychell v. Malta, no. 43328/14, 28 August 2018). It has also established the general principles concerning complaints about the right to legal assistance arising from a ban in the law, under Article 6 § 1 and 3 (c) (see Beuze v. Belgium [GC], no. 71409/10, 9 November 2018).
The Court further notes that it transpires from the case‑file that the applicant, who was no longer represented by the lawyer who had lodged his application, had paid no fees in that regard. The applicant has since then been unrepresented.
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed ‑ which is consistent with the amounts awarded in similar cases ‑ the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case‑law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
The Court considers that this amount should be paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Articles 6 § 1 and 3 (c) and 7 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 23 January 2020.
Stephen PhillipsGeorgios A. Serghides
RegistrarPresident
Full & Egal Universal Law Academy