FIFTH SECTION
DECISION
Application no. 69720/11
Gernot KNOESS
against Malta
The European Court of Human Rights (Fifth Section), sitting on 9 December 2014 as a Committee composed of:
Boštjan M. Zupančič, President,
Helena Jäderblom,
Aleš Pejchal, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 2 November 2011,
Having regard to the comments submitted by the parties,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Gernot Knoess, is a German national, who was born in 1959 and lives in Pontoglio. He was represented before the Court by Ms M. Kullmer, a lawyer practising in Karlsruhe.
2. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
4. In 2006 the German authorities were conducting an investigation into tax evasion in relation to activities carried out by C. and W. Following a request by the German authorities, on 20 September 2006 the Attorney General in Malta asked the Criminal Court to order an investigation in respect of C., W., MMI., the applicant and his company regarding possible money-laundering.
5. By a decision of 22 September 2006, having considered that there was reasonable suspicion that they were guilty of money-laundering (Article 3 of Chapter 373 of the Laws of Malta), the Criminal Court ordered (i) the relevant banks and entities to give Police Inspector V. access to all relevant assets – including monies, accounts, safety deposit boxes, gold and jewels belonging to the suspects – and to related correspondence; (ii) the attachment of those assets and documents. It also prohibited the suspects from transferring or disposing of any movable or immovable property. The corresponding notification was also ordered.
6. The applicant was notified about the investigation and attachment order on 29 September 2006. Notice was given in Maltese and a request for translation into English or German was refused. A translation was eventually handed over on an unspecified date in 2007. As a result, the applicant’s property and funds and those of his company were attached in third-party hands.
7. On 17 November 2006 the applicant was called in to make a statement. He was not provided with a lawyer but was assisted by an interpreter paid for by the applicant himself. An inquiry was commenced.
8. On 30 January 2007 the applicant, in his own name and on behalf of his company, filed a request for the release of the property. The Attorney General responded that the investigation was under way but that – given its complexity and the use of foreign documents – it was taking a long time.
9. By a decree of 6 February 2007 the Criminal Court rejected the request.
10. The applicant, in his own name and on behalf of his company, filed another request for the release of the property on 23 February 2007. He argued, inter alia, that his company had suffered irreparable damage owing to the delay in the investigation. The Attorney General responded that a number of bank accounts belonging to the applicant and his company had been released.
11. By a decree of 21 June 2007 the Criminal Court rejected the request.
12. On 14 December 2007 the applicant, in his own name and on behalf of his company, filed another request for the release of the property. The Attorney General objected.
13. By a decree of 19 December 2007 the Criminal Court held that the investigation and attachment order in relation to the two outstanding bank accounts were still necessary for the purpose of the investigation. It therefore rejected the request.
14. At the time of the introduction of the application with the Court, some of the property was still attached in third-party hands.
2. Constitutional redress proceedings
15. On 28 September 2010 the applicant instituted constitutional redress proceedings. He complained under Article 6 about the length of the investigation against him. He also invoked Article 6, alleging that there had been procedural irregularities at the investigation stage because he had not been provided with an interpreter and had not been notified of one of the hearings. Under Article 6 § 2 he complained that the attachment order had been arbitrary and disproportionate and had denied him the presumption of innocence. Moreover, there had been no reasonable suspicion against him. He also complained under Article 8 that the suspicions against him had been the result of unauthorised telephone tapping and that the freezing of his funds had unreasonably and severely affected his private and family life. Lastly, he invoked Article 1 of Protocol No.1 in relation to the attachment order.
16. The first hearing was held on 7 October 2010; the applicant did not appear and the Attorney General (on behalf of the Government) requested four days for the presentation of pleadings in reply. The case was adjourned.
17. A second hearing was held on 26 October 2010. According to the documents submitted by the Government, neither the applicant nor the registrar appeared. The latter – who was also a defendant in the case – had not filed his pleadings in reply. The case was thus adjourned sine die.
18. On 2 November 2010 the applicant filed an application for the reappointment of the case, apologising for his absence from the previous hearing.
19. On 4 November 2010 the Civil Court (First Hall) in its constitutional jurisdiction ordered the applicant to declare what evidence he wished to produce. In a note of 16 November 2010 the applicant submitted that he himself was the only witness he wished to call.
20. By a decision of 18 November 2010, delivered in the applicant’s absence, the Civil Court (First Hall) in its constitutional jurisdiction held that the applicant was to file his sworn evidence (affidavit), following which the case would be reappointed.
21. The applicant remained inactive and had not filed his sworn evidence at the time of the introduction of the application with this Court (2 November 2011). The judge hearing the case at the domestic level withdrew from it in December 2012. On 10 January 2013 the case was assigned to another judge.
22. Following communication by the Court of part of the application to the respondent Government and the latter’s submissions, on an unspecified date the applicant asked the domestic court to reappoint proceedings. On 28 January 2013 the applicant filed his sworn evidence.
23. By a decision of 30 January 2013 the Civil Court (First Hall) in its constitutional jurisdiction reappointed the case for hearing. In an application filed on 12 February 2013 the Government challenged that decision and asked the court to revoke it and find that the case had been deserted.
24. A hearing took place on 14 February 2013 and the applicant’s lawyer requested that the case be deferred to the month of March. The Government objected, referring to the case lodged by the applicant before the Court. The Civil Court (First Hall) in its constitutional jurisdiction deferred the case to 25 February 2013 to hear pleadings on the application.
25. The parties made oral pleadings and asked to be given time to file written submissions. The requests were accepted and the case was adjourned to 25 April 2013 for the court to decide the matter.
26. By a decision of 25 April 2013 the Civil Court (First Hall) in its constitutional jurisdiction held that the case had not been deserted by the applicant and proceedings could therefore be continued. It considered that it was known that a case does not become deserted once an application for reappointment is made within the six month time limit, even if the case is eventually set for hearing at a later date outside that time limit. It considered that in the present case, written proceedings had taken place in terms of law and therefore Article 964 (1) of the COCP applied. Furthermore, the applicant’s application to reappoint the case was lodged on 2 November 2010 and therefore definitely within the six months provided by Article 964. Thus, the fact that the case was not reappointed within those six months did not render the case deserted, despite the applicant’s failure to present his affidavit as he had been requested to do by the decision of 18 November 2010.
27. On 30 April 2013 the Government asked the court to reconsider its decision or alternatively to grant them leave to appeal.
28. Although the Government did not supply information on this matter when so requested by the Court, it appears from the Maltese Justice website that the case was reappointed for 22 May 2013 and was adjourned because the applicant had not received notification of the application lodged by the defendant (the Attorney General et) on 30 April 2013. The case was again adjourned for the same reason on 5 June 2013, when the applicant requested permission not to appear at the hearings.
29. By a decision of 27 June 2013 the Civil Court (First Hall) in its constitutional jurisdiction granted leave to appeal. Consequently, on 2 July 2013 the Government lodged an appeal with the Constitutional Court against the decision of 25 April 2013. Pending that appeal, on 3 October, 18 November, 12 December 2013 and 16 January 2014, proceedings before the first-instance court were adjourned pending the outcome of the appeal against the decision on the preliminary plea. According to the Maltese Justice website, the case was again adjourned on 13 March 2014.
30. Meanwhile, in the proceedings before the Constitutional Court concerning the appeal against the preliminary plea, on 21 November 2013 the applicant asked the President of the Constitutional Court to withdraw from the proceedings. The request was granted and the case was adjourned to 28 November 2013.
31. On 28 November 2013 the case was adjourned until 13 January 2014 for final submissions. According to the Maltese Justice website, the parties made their oral submissions on that date and the case was adjourned until 10 March 2014 for delivery of the judgment.
32. On 10 March 2014 the Constitutional Court upheld the Government’s appeal and revoked the decisions of 25 April 2013 and 30 January 2013. It held that:
“The filing of the application within the six-month period is sufficient to avoid desertion even if the case is not re-appointed for hearing within that time. However, this will not apply if the application is rejected because of some irregularity or other valid reason; in that case the applicant will have to file a new, correct, application within the original six-month period. If it were otherwise, the mere filing of an ill-founded application will suspend the desertion indefinitely, which is absurd and was certainly not the intention of the legislator. The same can be said when the application is allowed under a condition. To say that this would suspend the running of time for desertion indefinitely until it pleases the applicant to observe the condition would in effect mean that the applicant would be allowed to prolong indefinitely the time within which he is to comply with the conditions set out in the re-appointment decree. This will defeat the purposes of the institute of desertion, which is meant to avoid delays due to failure by plaintiff to pursue his case diligently. The correct interpretation is that, if an application for reappointment is allowed subject to applicant’s observing some condition (as in the present case), the applicant must satisfy that condition within the original the six-month limit unless the court for good reason – such as when the time between the delivery of the decree and the expiry of the time is unreasonably short – directs otherwise. Failing that, the case will be deemed deserted.
In the present case there can be no doubt that the plaintiffs did indeed fail to act diligently in the conduct of the proceedings. In fact, this lack of diligence is apparent throughout: they failed to appear for the hearing of the case; they allowed more than two years to lapse before filing their evidence by affidavit; they even failed to reply to appellants’ application of appeal.
The court reiterates that the conduct of the parties is relevant in assessing the state’s responsibility for unreasonably long judicial proceedings, it is also the duty of the court to ensure that, notwithstanding the casual attitude of the parties, proceedings are conducted expeditiously, and to use all means allowed by law for that end. Indulging parties who take a cavalier attitude towards the proceedings is not conducive to a proper conduct of those proceedings. The institute of desertion is a strong disincentive to carelessness and nonchalance should not be rendered ineffective through a too accommodating interpretation.
In the present case plaintiffs’ culpable inactivity amply exceeded the time allowed by law; the case is therefore to be deemed deserted in terms of Article 964 of the COCP.”
3. Criminal proceedings
33. On 20 May 2011 an order was made for the arraignment of the applicant before the courts of criminal jurisdiction. On 20 October 2011 the applicant was arraigned before the Court of Magistrates charged with having carried out acts of money-laundering.
34. At the first hearing on 23 November 2011, the Court of Magistrates ordered the proceedings to be conducted in English. The charges were read out and the applicant was heard. Evidence was submitted, a witness testified, and experts were confirmed. The Court of Magistrates considered that there was enough prima facie evidence for the accused to be indicted and forwarded the file to the Attorney General as per procedure.
35. On 28 December 2011 the case was adjourned.
36. The second hearing took place on 8 February 2012, during which four persons gave evidence. The Court of Magistrates granted the prosecution’s request and issued a seizure order. It also appointed an expert to prepare a report regarding the assets and authorised him to hear evidence under oath.
37. On 21 March 2012 four witnesses were heard and the case was adjourned.
38. On 2 May 2012 another hearing took place at which a few documents were exhibited but no evidence was heard. The prosecution declared that it had to prepare letters rogatory before submitting further evidence. The case was adjourned.
39. On 16 May 2012 the applicant’s lawyer declared that he had no objection to the case being heard in the absence of the accused. The court replied to an application filed by the accused and adjourned the case.
40. On 27 June 2012 the expert gave evidence under oath and exhibited his report.
41. The case was subsequently adjourned following hearings on 8 August, 19 September, 31 October and 12 December 2012, at which no significant procedural steps were taken. The case was adjourned again until 17 April, 26 April and subsequently until 5 June 2013. On the last-mentioned date the applicant – who was present together with his lawyer – complained that the letters rogatory had not yet been filed despite the repeated adjournments for this purpose. The Court of Magistrates thus ordered the letters rogatory to be produced before the next hearing on 17 July 2013.
42. On 17 July 2013 a police constable gave evidence and the prosecution declared that it was still waiting for a judgment delivered by a court in Germany. The case was adjourned until 28 August 2013, when the case was again adjourned as the magistrate was occupied with other matters.
43. The case was adjourned again on 18 September, 2 October and 13 November 2013, when the prosecution produced the decision of the German court in the original language. Following an order by the Court of Magistrates to have the text translated, the case was again adjourned until 26 December 2013.
B. Relevant domestic law
44. Article 964 of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, reads:
“(1) Any cause in any court of civil jurisdiction which, after having been set down for hearing, is subsequently by order of the court adjourned to an unspecified date or otherwise suspended, shall be deemed to be deserted unless it is re-appointed for hearing by the court within the peremptory time of six months of it having been so adjourned or suspended or an application for its re-appointment has, within such period, been filed in court:
Provided that where the cause has been suspended until judgment is pronounced in another cause, the said time shall commence to run from the date when such judgment is delivered.
(2) Re-appointment shall be made either by the court on its own motion or following the application of any of the parties.”
Article 963 (6) of the same code provides as follows:
“The desertion of any cause in first instance shall operate as an abandonment of the proceedings, but shall not bar the right of action. In second instance, the desertion shall operate as an abandonment of the appeal and the judgment appealed from becomes res judicata.”
COMPLAINTS
45. The applicant complained under Articles 6 § 1 and 13 of the Convention about the length of the criminal proceedings and the constitutional redress proceedings, the latter being ineffective. Invoking Article 6 § 3 (a) he complains that he was not informed in a language he understood and in detail of the accusations against him. Under Article 8 the applicant complains that the attachment of his property in the hands of a third party which was in place for more than five years had not been in accordance with the law and did not allow him enough money to live decently (notwithstanding that the law provides otherwise).
46. In a letter of 15 February 2012 the applicant further complained under Article 6 § 1 that he was being accused without any evidence. He further considered that despite the summons served on him on 8 February 2012 he was still not informed in detail of the charges against him as required by Article 6 § 3 (a).
47. In a letter of 28 May 2012 the applicant further complained that the repercussions this situation was creating for his business (due to publicity) amounted to treatment contrary to Article 3 and a violation of Articles 6 § 2, 8 and 12 of the Convention in so far as he could not live a quiet life with his wife and have children.
48. In a letter of 6 August 2012 the applicant invoked Articles 17 and 18 of the Convention.
THE LAW
A. Article 13
49. The applicant complained that he had not had an effective remedy in respect of all his complaints under the different Convention provisions as provided in Article 13 of the Convention, which reads:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
50. The Court notes that the applicant invoked Article 13 in relation to all his complaints. Given that the assessment of the effectiveness of a remedy may depend on the substantive provision at issue, the Court considers that this complaint must be examined under two separate heads as follows.
1. In relation to the complaint concerning the length of proceedings
(a) The parties’ observations
(i) The applicant
51. The applicant submitted that he had not had an effective remedy for the purpose of his complaints, given that the constitutional proceedings had not progressed in the two years since he had lodged them.
52. In his submissions the applicant also complained that constitutional redress proceedings could not be considered effective because the Constitutional Court had not been an independent and impartial tribunal, its President having been the Attorney General when the criminal investigation in respect of the applicant had started. Moreover, the first-instance court with constitutional jurisdiction would be reluctant to find a violation that would reflect badly on the President of the Constitutional Court.
53. In relation to the Government’s submissions about the way in which he had pursued constitutional redress proceedings, the applicant submitted that he had not been notified of the court’s request to submit his sworn evidence. His affidavit (submitted to the Court) had in fact been prepared and signed before a notary on 18 May 2011. Following communication of the application by the Court, the first-instance court had reappointed the case.
54. Following the judgment of the Constitutional Court the applicant, who was allowed to comment, submitted that the Maltese authorities did all in their power to deny him a remedy. In particular they applied Article 964 of the COCP (see relevant domestic law above) abusively. To substantiate that argument he submitted an extract of an advisory opinion by a leading lecturer of constitutional law in the University of Malta. According to that opinion which contained an in depth analysis of Article 964 of the COCP, the first-instance jurisdiction’s decision to proceed with hearing the case had been correct and according to law, on the contrary the decision of the Constitutional Court on appeal was a strange and surprising application of the law. Nevertheless, that was now a final judgment and thus, in so far as Maltese law was concerned, the final word on the matter.
(ii) The Government
55. The Government submitted that the applicant had instituted constitutional redress proceedings but had failed to pursue them diligently. Neither he himself nor his legal representative had attended the two hearings which had taken place before proceedings were adjourned sine die, and following his request for reappointment, over a period of two years he had failed to submit his sworn evidence, which was a condition required by the court for reappointment of the case. Such inaction demonstrated a total lack of interest by the applicant and, in the Government’s view, proceedings could be considered to have been abandoned and deserted by the applicant since they had not been reappointed within six months (Article 964 of the COCP). The Government noted that – in terms of domestic procedural law – a court order (such as that of 18 November 2010) was not served on a party. Rather it was for the party requesting the order to follow and pursue its outcome. Moreover, either the applicant or his lawyer was duty-bound to be present at the hearing. Any inactivity on the part of the applicant could therefore not be attributed to the court.
56. The Government submitted that constitutional redress proceedings could have provided the applicant with compensation for non-pecuniary damage and could have been decided expeditiously, particularly if a request for urgent treatment had been lodged. As to the applicant’s submissions regarding the President of the Constitutional Court, the Government submitted that the fact that a lawyer in the Office of the Attorney General had made a request for an attachment order to be issued in the applicant’s case could not call into question the impartiality of the President of the Constitutional Court, who had been the Attorney General at the time. Moreover, any such issue could be challenged before the courts in accordance with Article 733 of the Code of Organisation and Civil Procedure (COCP).
57. It therefore followed that the applicant had had a remedy which he had failed to pursue diligently.
58. Following the Constitutional Court judgment the Government, who were also allowed to submit comments, submitted that the Convention accepted the establishment of procedural restrictions and the fact that these were applied to the applicant did not render the remedy ineffective. They noted that they shared the interpretation given to Article 964 by the Constitutional Court, particularly given the applicant’s negligence in pursuing proceedings. As to the opinion submitted by the applicant, the Government noted that it was a subjective and non-independent opinion without any legal force.
(b) The Court’s assessment
(i) General principles
59. Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000‑XI).
60. An effective remedy for delay in criminal proceedings must, inter alia, operate without excessive delay and provide an adequate level of compensation (Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 195 and 204-207, ECHR 2006‑V). Article 13 also allows a State to choose between a remedy which can expedite pending proceedings or a remedy post factum in damages for delay that has already occurred. While the former is preferred as it is preventive of delay, a compensatory remedy may be regarded as effective when the proceedings have already been excessively long and a preventive remedy did not exist (Kudła v. Poland [GC], cited above, § 158; and Scordino v. Italy (no. 1), [GC], cited above, § 187).
61. A remedy that takes several years and goes through two levels of jurisdiction may not be reconcilable with the requirement that a remedy for delay (even before a constitutional court) should be sufficiently swift (see McFarlane v. Ireland [GC], no. 31333/06, § 123, 10 September 2010 and the case-law cited therein).
(ii) Application to the present case
62. The Court notes that for Convention purposes the criminal proceedings against the applicant began at the latest in September 2006, when the applicant was notified about the investigation and an attachment order. They are still pending at first instance. The Court accepts that the applicant had an “arguable complaint” under Article 6 § 1 in relation to the length of his criminal proceedings and, finds therefore, that Article 13 is applicable in connection with this complaint.
63. In so far as the applicant complained that the Constitutional Court did not constitute an effective remedy because its President had been the Attorney General when the criminal investigation in respect of the applicant had started, the Court notes that the applicant eventually challenged the judge in question, who withdrew from hearing the proceedings (see paragraph 30 above). In so far as he complained that the constitutional jurisdiction was not an effective remedy because it would be reluctant to find a violation that would reflect badly on the President of the Constitutional Court, the Court considers this argument to be unsubstantiated and thus manifestly ill-founded.
64. As to the rest of the applicant’s complaint the Court observes that in the Maltese context a constitutional remedy can in principle both expedite pending proceedings by order of the court and award damages for a delay that has already occurred. It remains to be determined whether it is an effective remedy in view of the duration of such proceedings.
65. In the circumstances of the present case, the Court observes that the applicant’s constitutional complaint regarding the length of his criminal investigation was, after two years, still pending in its preliminary stages at first instance at the time when he lodged his application with the Court. From the information provided, however, it appears that between 28 September 2010 – when the applicant instituted the domestic proceedings – and 18 November 2010 four hearings were held, of which only one was attended by the applicant. On the latter date the court accepted the applicant’s request for the reappointment of the case, subject to a certain condition, namely that he submit his sworn evidence, which he did only on 28 January 2013. Thus, the applicant did not take the relevant action to fulfil that condition until more than two years later. The applicant claimed that the reason for so doing was because he had not received notification of the order in question. However, the Government explained that notification was not provided for in such a case. The Court notes that the applicant has not pointed to any legitimate impediment justifying the delay on his part or his failure to follow the proceedings rigorously. The Court reiterates that it is incumbent on the interested party to display special diligence in the defence of his interests (see, in the context of Article 6 generally, Teuschler v. Germany (dec.), no. 47636/99, 4 October 2001; and Muscat v. Malta, no. 24197/10, § 44, 17 July 2012), and that a lack of alacrity by the parties in filing their submissions may contribute decisively to the slowing-down of the proceedings (see Vernillo v. France, 20 February 1991, § 34, Series A no. 198); the same holds for requests or omissions which have an impact on the conduct of the proceedings (Acquaviva v. France, 21 November 1995, § 61, Series A no. 333‑A). The Court observes that despite the fact that the applicant had failed to attend the last hearing and had heard nothing from the Civil Court (First Hall) in its constitutional jurisdiction in connection with his request, neither the applicant nor his legal representative took any action to check whether a decision on the matter had in fact been taken. It follows that the more than two years of inactivity, that is the essence of the delay in the present case, were totally attributable to the applicant.
66. The Court also notes that the proceedings were reappointed immediately, that is two days, after the applicant filed his affidavit. Once reappointed, the Government objected to that decision, and the court decided on that preliminary plea within three months, during which time the applicant had requested the case to be deferred by a month and later requested time to make written pleadings. Leave to appeal that preliminary plea was granted within three months of the request of the Attorney General and a decision on the appeal was delivered eight months later. As is apparent from the documents in the file whilst the proceedings could have been more speedy - particularly given that the applicant was complaining about an eight year delay before the criminal jurisdictions - it cannot be said that proceedings during that year were unduly delayed. Indeed, although the case merited speedy attention particularly because the Constitutional Court could have improved the situation pertaining to the criminal proceedings, the Court cannot lose sight of the fact that the remedy in question concerns constitutional proceedings and that the obligation of constitutional courts to hear cases within a reasonable time cannot be construed in the same way as for an ordinary court, given their role of guardians of the Constitution which sometimes makes it particularly necessary for them to take into account considerations other than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms (see Süßmann v. Germany, 16 September 1996, § 56, Reports 1996‑IV and Oršuš and Others v. Croatia [GC], no. 15766/03, § 109, ECHR 2010). Lastly, the Court notes that those proceedings were eventually dismissed by the Constitutional Court, which – repeatedly emphasising the applicant’s negligence – considered the case to have been deserted.
67. Taking the above into account, the Court considers that the applicant was to blame for the original delay which had been brought before the Court and his negligence resulted in another year of ultimately superfluous proceedings following the communication of the case to the Government. Neither has it been established before this Court that constitutional redress proceedings in connection with complaints of a length of criminal proceedings are invariably lengthy. It follows that, while not precluding a different conclusion in the future if the information provided warrants so, in the case at issue it cannot be said that the applicant was not provided with an adequate and effective remedy for the purposes of his grievance. It is also to be noted that the applicant is free to undertake that remedy again in relation to any further delays.
68. It follows from all the above that the complaint under Article 13 in conjunction with Article 6 in relation to the length-of-proceedings complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. In relation to the remaining complaints
69. The Court considers that it is not necessary to ascertain whether the applicant had an “arguable claim” under the remaining provisions and thus whether, Article 13 is applicable in connection with these complaints, as the complaint is in any event inadmissible for the following reasons.
70. The Court reiterates that, for the purposes of Article 13, the term “effective” is considered to mean that the remedy must be adequate and accessible (see Paulino Tomás v. Portugal (dec.), no. 58698/00, ECHR 2003-XIII). It notes that constitutional redress proceedings in Malta have consistently been held to be an effective remedy within the Maltese legal system for Convention complaints which do not require a particularly speedy examination to fulfil Convention standards (see, for example, by implication, Micallef v. Malta [GC], no. 17056/06, § 57, ECHR 2009, in relation to Article 6; Camilleri v. Malta, no. 42931/10, 22 January 2013, in relation to Article 7; Zammit Maempel v. Malta, no.24202/10, 22 November 2011, in relation to Article 8; Aquilina and Others v. Malta, no. 28040/08, 14 June 2011, in relation to Article 10; Genovese v. Malta, no. 53124/09, 11 October 2011, in relation to Article 14; and Deguara Caruana Gatto and Others v. Malta, no. 14796/11, § 82, 9 July 2013, in relation to Article 1 of Protocol No. 1).
71. The applicant has not put forward any argument capable of casting doubts on the remedy of constitutional redress proceedings (for the purposes of the specific complaints under the provisions invoked by him), the effectiveness of which has also been reaffirmed by the finding in relation to the complaint of length of proceedings, dealt with above.
72. It follows that this part of the complaint under Article 13 is likewise manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Other complaints
73. The applicant also complained under Article 6 §§ 1 and 3 (a) that he had not been informed in a language he understood and in detail of the accusations against him, that he had been accused without any evidence, and that the criminal proceedings had been ongoing for a number of years, in breach of the “reasonable time” principle. He further complained about the attachment of his property and the repercussions this situation was creating for his business (as a result of adverse publicity), which he claimed amounted to treatment contrary to Article 3 and a violation of Article 6 § 2, and Articles 8 and 12 of the Convention in so far as he could not live a quiet life with his wife and start a family. The applicant also invoked Articles 17 and 18 of the Convention.
74. The Court reiterates that complaints intended to be made subsequently at international level should have been aired before the appropriate domestic courts at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004‑III). The Court has previously rejected applications on the grounds of non-exhaustion of domestic remedies in cases where an applicant who was represented by a lawyer had failed to lodge a constitutional complaint in accordance with the applicable procedural rules and established practice (see Obluk v. Slovakia, no. 69484/01, § 62, 20 June 2006) or had not made use of a constitutional remedy in accordance with the formal requirements as interpreted and applied by the Constitutional Court (see Lubina v. Slovakia, no. 77688/01, § 63, 19 September 2006, and Schembri and Others v. Malta, no. 42583/06, § 49, 10 November 2009).
75. The Court notes that it has already been established that the applicant had an available and effective remedy at national level. However, he failed to raise his Article 3 complaint before the constitutional jurisdictions, and in respect of the complaints which he did raise, it appears from the final Constitutional Court judgment of 10 March 2014 that the applicant failed to make proper use of that remedy. Thus, through his own fault, the applicant did not provide the Maltese courts with the opportunity which is in principle intended to be afforded to a Contracting State by Article 35 of the Convention, namely the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it (see Azinas, cited above, § 41). It follows that the applicant failed to exhaust domestic remedies.
76. Consequently, the complaints under Article 3, Article 6 §§ 1, 2 and 3, and Articles 8 and 12 of the Convention must be rejected as inadmissible on the grounds of non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 in fine of the Convention, and the complaints under Articles 17 and 18 – which do not go beyond the above-mentioned complaints and are therefore manifestly ill-founded – must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen PhillipsBoštjan M. Zupančič
RegistrarPresident
Full & Egal Universal Law Academy