FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 5262/09
by Mario Luciano Alfredo TRAVERSO
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 10 May 2011 as a Chamber composed of:
Lech Garlicki, President,
Nicolas Bratza,
Ljiljana Mijović,
Sverre Erik Jebens,
Päivi Hirvelä,
Ledi Bianku,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 5 January 2009,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Mario Luciano Alfredo Traverso, is a British national who was born in 1978 and lives in Gibraltar. He is represented before the Court by Mr S. Bossino, a barrister practising in Gibraltar.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was arrested and charged by the Royal Gibraltar Police on 16 September 2005 that he had had sexual intercourse with his son, a minor. On 29 March 2007, he was committed by the Magistrates’ Court to stand trial in the Supreme Court before a judge and jury.
At his first trial, on 10 February 2008, an application for a mistrial was granted. On 7 October 2008, at the conclusion of his retrial, the jury returned a unanimous verdict of not guilty.
The applicant incurred defence costs of GBP 28,000, which, by virtue of section 232 of the Criminal Procedure Ordinance of Gibraltar (see relevant domestic law and practice below), he was unable to recover.
B. Relevant domestic law and practice
The relevant domestic law and practice relating to the inability of acquitted defendants to recover their costs in Gibraltar were set out in Shimidzu and Berllaque v. the United Kingdom (dec.), no 648/06, 30 March 2010. In particular, when the applicants in that case were tried and acquitted, section 232 of the Ordinance provided:
“(1) The Supreme Court may, if it thinks fit, order any person convicted before it to pay the whole or any part of the costs incurred in or about the prosecution and conviction, including any proceedings before the examining justices.
(2) Where any person is acquitted on indictment, then, if ―
(a) he has not been committed to or detained in custody or bound by recognizance to answer the indictment; or
(b) the indictment is for an offence under the Merchandise Marks Ordinance;
(c) the indictment is by a private prosecutor for the publication of a defamatory libel or for any corrupt practice within the meaning of the House of Assembly Ordinance,
the Supreme Court may order the prosecutor to pay the whole or any part of the costs incurred in or about the defence, including any proceedings before the examining justices.
(3) Costs payable under this section shall be taxed by the Registrar.”
Section 231(1) was repealed by the Criminal Procedure (Amendment) Ordinance 2005 with effect from 22 December 2005, that is, before the trial of the present applicant. The remainder of the section was in force at the time of the present applicant’s trial.
Section 48(1)(a) and (b) of the Ordinance, provides that where the Magistrates’ Court has the power to remand any person, the court may either remand him in custody or remand him on bail, that is to say, take from him a recognizance, with or without sureties. By section 48(3) a recognizance on which a person is remanded on bail may be conditioned–
“(a) for his appearance before the court at the end of the period of remand; or
(b) for his appearance at every time and place to which during the course of the proceedings the hearing may be from time to time adjourned...”
Section 59 provides that, where a court is disposed to admit a person to bail with sureties but no suitable surety is available, the court may, in its discretion, allow a deposit of money in court by way of security for his due appearance.
COMPLAINTS
The applicant made two complaints.
First, he complained that his inability to recover his costs after his acquittal was in violation of Article 14 when taken with Article 6 of the Convention and Article 1 of Protocol No. 1. His submissions in respect of this complaint were as follows. He submitted that section 232(2)(a) of the Ordinance gave the Supreme Court a discretion to grant a defendant his costs on acquittal if the defendant has not been committed to or detained in custody or bound by recognizance to answer the indictment. Moreover, section 48(1)(b) of the Ordinance makes clear that a recognizance can be taken with or without sureties and section 59, an alternative to section 48, allows for bail upon payment of a cash deposit. Hence, he submitted, defendants who were granted bail upon payment of a cash deposit, would not fall within the terms of section 232(2)(a) because they would not be bound by recognisance and thus could recover their costs if acquitted. The applicant further submitted that, in practice, the vast majority of resident defendants in Gibraltar are granted bail on their own recognisance or are not granted bail and thus were remanded in custody. However, the vast majority of non-resident defendants were either not granted bail, were granted bail subject to sureties or were granted bail subject to cash deposits. This system thus allowed a non-resident defendant who had been granted bail subject to a cash deposit to obtain his costs if later acquitted. The applicant, a resident defendant, submitted that this difference in treatment was discriminatory for the purposes of Article 14 when taken with Article 6 of the Convention and Article 1 of Protocol No. 1.
The applicant’s second complaint was that section 232(2), by limiting the scope of costs orders in favour of acquitted defendants, was in breach of the presumption of innocence guaranteed by Article 6 § 2 of the Convention. In particular, section 232(2) operated irrespective of considerations as to the merits of an acquittal. He submitted that section 232(2), when read with sections 48 and 59, was irrational. This was because its indirect effect was to allow the recovery of costs only when certain bail conditions, such as payment of a cash deposit under section 59, were met.
THE LAW
Article 6 of the Convention, where relevant, provides as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;...”
Article 14 provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 1 of Protocol No. 1 provides as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. The alleged discrimination between resident and non-resident defendants
In Shimidzu and Berllaque, cited above, the applicants complained inter alia that, at the time of their trials, section 232 was incompatible with Article 14 when taken with Article 6 and Article 1 of Protocol No. 1. They complained that there was an unjustified difference in treatment between the prosecution and the defence because, at that time, section 232(1) allowed the prosecution to recover its costs from a convicted defendant but an acquitted defendant could not recover his costs from the prosecution. They further submitted that there was also an unjustified difference in treatment between defendants in Magistrates’ Courts (who could recover their costs when acquitted) and defendants tried on indictment in the Supreme Court (who could not). The Court rejected these complaints, finding that the facts of the case did not fall within the ambit of Article 6 or Article 1 of Protocol No. 1 and, consequently, Article 14 was not engaged. The complaints were thus rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
In respect of the present applicant’s reliance on Article 6, the Court finds no reason to depart from its ruling in Shimidzu and Berllaque, that Article 6 does not contain a right to one’s cost if acquitted in criminal proceedings. There is, moreover, nothing in the case file that would indicate that the present applicant’s trial was unfair by virtue of his inability to recover his costs. The facts of the case do not, therefore, fall within the ambit of Article 6.
In respect of the applicant’s reliance on Article 1 of Protocol No. 1, even assuming that his complaints fall within the ambit of this Article, the Court is not persuaded that there has been a difference in treatment between a resident and non-resident defendant. First, as the applicant himself accepts, section 232(2) gives the Supreme Court a discretion, not a duty, to award costs. Second, it may be that, as the applicant submits, non-resident defendants can be granted bail subject to cash deposits (and thus recover their costs) but resident defendants are bound by recognizance (and thus cannot recover their costs). However, this does not mean that, in all cases involving trial before the Supreme Court, non-residents can recover their costs whereas resident defendants cannot. For instance, the Ordinance would appear to allow both non-resident and resident defendants to be remanded in custody pending trial. In such a situation, both the non-resident and the resident defendant would fall within section 232(2) and would be unable to recover their costs if acquitted. In the Court’s view, there is, therefore, no difference in treatment based on the applicant’s status as a resident defendant.
The Court therefore finds that the applicant’s complaints relating to Article 6 and Article 1 of Protocol No. 1, either alone or read in conjunction with Article 14, must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
B. The presumption of innocence
The relevant principles relating to the presumption of innocence and the award of costs to acquitted defendants were set out in Yassar Hussain v. the United Kingdom, no. 8866/04, §§ 19 and 20, ECHR 2006‑III:
“....the presumption of innocence enshrined in Article 6 § 2 is one of the elements of a fair criminal trial required by Article 6 § 1. It will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty unless he has been proved so according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards that person as guilty ... In such circumstances, the question is whether the trial judge relied on suspicions as to the applicant’s innocence after the applicant had been acquitted ...
However, neither Article 6 § 2 nor any other provision of the Convention gives a person “charged with a criminal offence” a right to compensation for lawful detention on remand where proceedings taken against him are discontinued (see, for example, [Sekanina v. Austria, 25 August 1993, § 25, Series A no. 266-A]). Further, the Convention does not guarantee a defendant who has been acquitted the right to reimbursement of his costs (see Masson and Van Zon v. the Netherlands, 28 September 1995, § 49, Series A no. 327‑A).”
The Court finds nothing to indicate that the presumption of innocence was violated in the present case. It is precisely the general nature of the section prohibition on recovery of costs, as set out in section 232(2), that prevents any refusal of the Supreme Court to award costs being seen as a violation of the presumption of innocence. If the Supreme Court had no discretion to award costs the applicant his costs then, in not awarding costs, the Supreme Court was not relying on suspicions as to the applicant’s innocence after the applicant had been acquitted.
Consequently, this complaint must be also rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy