EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 25644/94
T. W.
against
Malta
REPORT OF THE COMMISSION
(adopted on 4 March 1998)
TABLE OF CONTENTS
Page
I.INTRODUCTION
(paras. 1-15)1
A.The application
(paras. 2-4)1
B.The proceedings
(paras. 5-10)1
C.The present Report
(paras. 11-15)2
II.ESTABLISHMENT OF THE FACTS
(paras. 16-24)3
A.The particular circumstances of the case
(paras. 16-18)3
B.Relevant domestic law
(paras. 19-24)3
III.OPINION OF THE COMMISSION
(paras. 25-47)5
A.Complaints declared admissible
(para. 25)5
B.Points at issue
(para. 26)5
C.As regards Article 5 para. 3 of the Convention
(paras. 27-35)5
CONCLUSION
(para. 36)7
D.As regards Article 5 para. 4 of the Convention
(paras. 37-44)7
CONCLUSION
(para. 45)8
E.Recapitulation
(paras. 46-47)8
APPENDIX:DECISION OF THE COMMISSION AS TO
THE ADMISSIBILITY OF THE APPLICATION9
I.INTRODUCTION
1.The following is an outline of the case as submitted to the European
Commission of Human Rights, and of the procedure before the Commission.
A.The application
2.The applicant is a British citizen, born in 1943 and resident in Luqa,
Malta. He was represented before the Commission by Mr Joseph Brincat, a lawyer
practising in Marsa, Malta.
3.The application is directed against Malta. The respondent Government were
represented by their Agent, Mr Anthony E. Borg Barthet, the Attorney General.
4.The case concerns the applicant's right to be brought promptly before a
judge or other officer authorised by law to exercise judicial power and his
right to institute habeas corpus proceedings. The applicant invokes Article 5
paras. 3 and 4 of the Convention.
B.The proceedings
5.The application was introduced on 2 November 1994 and registered on 14
November 1994.
6.On 29 November 1995 the Commission (First Chamber) decided, pursuant to
Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application
to the respondent Government and to invite the parties to submit written
observations on its admissibility and merits.
7.The Government's observations were submitted on 6 February 1996. The
applicant replied on 11 March 1996.
8.On 17 January 1997 the Commission declared admissible the applicant's
complaints under Article 5 paras. 3 and 4 of the Convention. It declared
inadmissible the remainder of the application.
9.The text of the Commission's decision on admissibility was sent to the
parties on 28 January 1997 and they were invited to submit further observations.
The Government submitted observations on 28 February 1997, to which the
applicant replied on 19 April 1997. The Government sent further comments on 24
April 1997 to which the applicant replied on 5 May 1997.
10.After declaring the case admissible, the Commission, acting in accordance
with Article 28 para. 1 (b) of the Convention, also placed itself at the
disposal of the parties with a view to securing a friendly settlement. In the
light of the parties' reaction, the Commission now finds that there is no basis
on which such a settlement can be effected.
C.The present Report
11.The present Report has been drawn up by the Commission (First Chamber) in
pursuance of Article 31 of the Convention and after deliberations and votes, the
following members being present:
MMM.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
MrsJ. LIDDY
MML. LOUCAIDES
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENI?
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
MrsM. HION
MrR. NICOLINI
12.The text of this Report was adopted on 4 March 1998 by the Commission and
is now transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
13.The purpose of the Report, pursuant to Article 31 of the Convention, is:
(i)to establish the facts, and
(ii)to state an opinion as to whether the facts found disclose a breach
by the State concerned of its obligations under the Convention.
14.The Commission's decision on the admissibility of the application is
annexed hereto.
15.The full text of the parties' submissions, together with the documents
lodged as exhibits, are held in the archives of the Commission.
II.ESTABLISHMENT OF THE FACTS
A.The particular circumstances of the case
16.On the evening of Thursday 6 October 1994 at approximately 8:30, the
applicant was arrested by the police. On Friday 7 October 1994, the applicant
appeared before a magistrate of the Magistrates Court and was charged with
defilement of his minor daughter (an offence involving sexual acts) and having
committed acts of violent assault on her in violation of Article 203 (1) a, b
and c of chapter 9 of the Laws of Malta. The applicant pleaded not guilty.
17.After the hearing, the applicant contacted a lawyer who arranged to meet
with him the next day, 8 October, which was a Saturday. On the morning of Monday
10 October 1994 the applicant's lawyer filed a written application for release.
The application was sent to the Attorney General immediately as prescribed by
law, since the applicant was facing charges attracting a maximum sentence of
three or more years. The Attorney General was given 24 hours to reply. On the
same day, i.e. on 10 October 1994, the Attorney General, by a declaration in
writing, stated his opposition to the applicant's release. Still on 10 October
1994, a magistrate of the Magistrates Court took the decision to reject the
applicant's bail application. The recollection of the magistrate is that this
decision was taken either late in the morning or early in the afternoon of 10
October 1994. The magistrate in question was different from the magistrate
before whom the applicant had appeared on 7 October 1994. On 11 October 1994 the
registrar of the Magistrates Court entered the second magistrate's decision in
the court's books.
18.On 20 October 1994, the second magistrate began hearing evidence and on 25
October 1994 he ordered the applicant's release on bail. On 8 May 1995, the
Court of Magistrates convicted the applicant and gave him a suspended prison
sentence of two years. On 8 January 1996 the Court of Criminal Appeal upheld in
essence the applicant's conviction.
B.Relevant domestic law
19.The Maltese Criminal Code provides as follows:
Section 575
"2.The demand for bail shall be made by an application, a copy whereof
shall be communicated to the Attorney General on the same day, whenever it is
made by
...
(c)persons accused of any crime punishable with more than
three years imprisonment ...
3.The Attorney General may, within the next working day, by a note,
oppose the application, stating the reasons for his opposition."
Section 582 para. 1
"The Court may not ex officio grant bail, unless it is applied for by the
person charged or accused."
20.In its judgment of 8 January 1991 in the Ellul case, the Constitutional
Court of Malta upheld a decision taken on 31 December 1990 by the Civil Court in
the exercise of its constitutional jurisdiction to the effect that Article 5
para. 3 of the Convention did not impose any obligation on the magistrate before
whom an arrested person appeared to examine whether that person's arrest had
been made on a reasonable suspicion or not. Moreover, according to the judgment
of the Civil Court, as upheld by the Constitutional Court, Article 5 para. 3 of
the Convention did not impose on the prosecution any duty, on presenting the
arrested person, to bring any evidence that the police had a reasonable
suspicion at the time of the arrest.
21.In its judgment of 13 June 1994 in the Aquilina case, the Constitutional
Court reversed a decision taken on 25 November 1993 by the Civil Court in the
exercise of its constitutional jurisdiction to the effect that the provisions of
Article 575 of the Criminal Code, which required written notification of the
Attorney General, were inconsistent with the provisions of Article 5 para. 3 of
the Convention in failing to provide for the prompt consideration of the bail
application. The Constitutional Court considered that Article 5 para. 3 of the
Convention required the arrested person to be brought before a magistrate within
a short period from the arrest. It did not require the magistrate to have the
power to order release at that moment.
22.Section 137 of the Maltese Criminal Code provides:
"Any Magistrate who, in a matter within his powers, fails or refuses to
attend to a lawful complaint touching an unlawful detention, and any officer of
the Executive Police, who on a similar complaint made to him, fails to prove
that he reported the same to his superior authorities within twenty-four hours
shall on conviction, be liable to imprisonment for a term from one to six
months."
23.The Court of Magistrates has examined a number of applications for release
in which the lawfulness of a person's arrest was challenged under this
provision. Examples of such applications are that submitted by J. Leopold on 3
July 1995 and examined on 4 July 1995 and that submitted by C. Cremona and
examined on 13 June 1990 which led to the detainee's release.
24.By virtue of the European Convention Act of 19 August 1987 the Convention
became part of the Law of Malta.
III.OPINION OF THE COMMISSION
A.Complaints declared admissible
25.The Commission has declared admissible the applicant's complaint that he
was not brought promptly before a judge who had the power to order his release
and that there was no remedy whereby the lawfulness of his arrest or detention
could be challenged "speedily".
B.Points at issue
26.What is at issue, therefore, is
-whether there has been a violation of Article 5 para. 3
(Art. 5-3) of the Convention and
-whether there has been a violation of Article 5 para. 4
(Art. 5-4) of the Convention.
C.As regards Article 5 para. 3 (Art. 5-3) of the Convention
27.Article 5 para. 3 (Art. 5-3) of the Convention provides as follows:
"Everyone arrested or detained in accordance with the provisions of
paragraph 1 (c) of this Article shall be brought promptly before a judge or
other officer authorised by law to exercise judicial power and shall be entitled
to trial within a reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial".
28.The applicant submits that his appearance before a first magistrate on 7
October 1994 was a mere formality, as the magistrate had no power to order his
release. According to the law, his bail application had first to be submitted to
the Attorney General. However, when an arrested person is brought before the
magistrate, the prosecution is represented by the Officer of the Executive
Police and not the Attorney General. The applicant further argues that he had
not been allowed to contact a lawyer before his appearance before the magistrate
and that a bail application had to be signed by a lawyer. Moreover, his lawyer
had no right to ask for the opening of the court registry during the weekend.
The magistrate who decided on the applicant's detention after the views of the
Attorney General had been transmitted was different from the magistrate before
whom the applicant had appeared. The applicant also submits that his lawyer was
never notified of the decision of the magistrate, that the magistrate's office
was closed for a number of days and that, as a result, he was not informed of
the fate of his application before 15 October 1994.
29.The Government argue that, although the Attorney General who was
responsible for the prosecution of serious cases had to be consulted, the
magistrate before whom the applicant appeared on 7 October 1994 was vested in
principle with the power to order his release. The applicant had the right to
lodge the bail application himself. Moreover, as it is expressly mentioned in
the minutes of the hearing of 7 October 1994, the applicant was informed of his
right to be represented by counsel before the Magistrates Court. (i)The
Government further submit that the applicant was able to consult a lawyer after
the hearing on Friday afternoon. This lawyer need not have waited until Monday
morning to lodge the bail application, since he could have asked for the urgent
opening of the court's registry. When the application was lodged on 10 October
1994, it was immediately sent to the Attorney-General who replied on the same
day. The magistrate issued his decision on the applicant's bail application
either late in the morning or early in the afternoon of 10 October 1994.
According to standard practice, the applicant's lawyer should have made the
necessary inquiries and consulted the relevant records. The decision was given
"promptly" in accordance with Article 5 para. 3 (Art. 5-3) of the Convention
which, moreover, does not exclude written proceedings, provided that these are
speedy and efficient.
30.The Commission recalls that, according to the case-law of the Court,
"Article 5 para. 3 (Art. 5-3) ... is aimed at ensuring prompt and automatic
judicial control of police ... detention ordered in accordance with the
provisions of paragraph 1 (c)" (Eur. Court HR, De Jong, Baljet and Van den Brink
v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 24, para. 51).
Moreover, "the 'judge' ... must actually hear the detained person and take the
appropriate decision" (ibid.).
31.The Commission notes that, although persons who have been arrested in
circumstances which fall under Article 5 para. 1 (c)
(Art. 5-1-c) of the Convention are brought before a magistrate promptly,
Maltese law does not appear to provide for automatic judicial review. According
to section 582 para. 1 of the Criminal Code, persons who have been arrested can
obtain a ruling on their detention only if they lodge a bail application. If no
bail application is lodged, it appears that the magistrate, during the first
appearance of the accused before him, simply reads out the charges to him and
informs him of his rights.
32.The Commission also notes that the applicant was arrested on 6 October
1994 and was brought before a magistrate on 7 October 1994. He lodged a bail
application on 10 October 1994 and the Government argue that, as a result, the
Court of Magistrates became in principle vested with the power to order the
applicant's release. However, the Commission notes that, in accordance with
Article 575 para. 2 of the Criminal Code, since the applicant was accused of a
crime punishable with more than three years imprisonment, this power could be
exercised only after the Attorney General had been consulted.
33.The Commission further notes that the Attorney General stated his views on
10 October 1994 and that the parties agree that a magistrate issued a decision
on the same day ordering the applicant's continued detention. One of the issues
on which the parties disagree is when the applicant was or could have been
informed of the magistrate's decision. However, the Commission does not consider
it necessary to pronounce itself on this question or on whether the judicial
control of the applicant's detention was "prompt". The Commission notes in this
connection that the decision on the applicant's detention was taken by a
magistrate who was not the same as the one before whom the applicant had
appeared on 7 October 1994. Moreover, it is not disputed by the parties that
this second magistrate had not heard the applicant in person after his arrest.
34.The Commission considers, therefore, that the judicial control of the
applicant's detention was not automatic. Nor was it exercised by a magistrate
who had himself heard the applicant. As a result, the requirements of Article 5
para. 3 (Art. 5-3) of the Convention were not met in the applicant's case.
CONCLUSION
35.The Commission concludes, unanimously, that in the present case there has
been a violation of Article 5 para. 3 (Art. 5-3) of the Convention.
D.As regards Article 5 para. 4 (Art. 5-4) of the Convention
36.Article 5 para. 4 (Art. 5-4) of the Convention provides as follows:
"Everyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings by which the lawfulness of his detention shall be
decided speedily by a court and his release ordered if the detention is not
lawful."
37.The applicant submits that there is no remedy whereby the lawfulness of
his arrest or detention can be challenged "speedily". Article 137 of the
Criminal Code creates an offence, the sanction for which is the punishment of
the culprit. It does not envisage the release of the person who is unlawfully
detained. The cases invoked by the Government arose out of exceptional
circumstances and do not establish that Article 137 of the Criminal Code affords
protection similar to that of habeas corpus.
38.The Government submit that Article 137 of the Criminal Code does not
simply create a criminal offence. It provides the legal basis for a procedure
whereby a person may, by application, request the court to examine the
lawfulness of his arrest. This procedure is akin to habeas corpus proceedings in
common-law countries. A number of cases have already been decided by the courts
on this basis.
39.The Commission recalls that, in accordance with the Court's case-law on
Article 5 (Art. 5), "the procedure followed for bringing a person before the
competent legal authority in accordance with paragraph 3 taken in conjunction
with paragraph 1 (c) may ... have a certain incidence on compliance with
paragraph 4. For example, where that procedure culminates in a decision by a
court ordering or confirming deprivation of the person's liberty, the judicial
control of lawfulness required by paragraph 4 is incorporated in this initial
decision. ... However, the guarantee assured by paragraph 4 is of a different
order from, and additional to, that provided by paragraph 3" (Eur. Court HR, De
Jong, Baljet and Van der Brink v. the Netherlands judgment of 22 May 1984,
Series A no. 77, p. 26, para. 57).
40.The Commission notes that the second magistrate carried out a first review
of the lawfulness of the detention on 10 October 1994 which was not, however,
consonant with a procedure embodying the guarantees inherent in Article 5 para.
3 (Art. 5-3) of the Convention. Since the applicant was finally released on bail
on 25 October 1994, it remains to be determined whether a separate issue could
arise under Article 5 para. 4 (Art. 5-4) of the Convention if the applicant was
indeed unable to take judicial proceedings in the interim whereby the lawfulness
of his continued detention could be speedily decided.
41.The Commission recalls that, while the two guarantees under Article 5
para. 3 and para. 4 (Art. 5-3, 5-4) both call for remedies that may lead to the
applicant's release, the questions that may arise when considering the
"lawfulness" of the accused's detention under Article 5 para. 4 (Art. 5-4) are
"often of a more complex nature than those which have to be decided when a
person detained in accordance with Article 5 para. 1 (c) (Art. 5-1-c) is brought
before a judge or other judicial officer as required by para. 3 of the Article.
Indeed, the notion of 'promptly' (aussitôt) in the latter provision indicates
greater urgency than that of 'speedily' (à bref délai) in Article 5 para. 4
(Art. 5-4)" (Eur. Court HR, E. v. Norway judgment of 29 August 1990, Series A
no. 181-A, p. 27, para. 64). What is more, the scope of the obligation under
Article 5 para. 4 (Art. 5-4) is not identical in all circumstances (Eur. Court
HR, Bouamar v. Belgium judgment of 29 February 1988, Series A no. 129, p. 24,
para. 60).
42.In the instant case, following the rejection of the application for bail
on the 10 October 1994, the proceedings for the determination of the lawfulness
of the continued detention were already in train. The second magistrate who had
rejected the bail application in camera began hearing evidence on the 20 October
1994, ten days later, and the applicant was released on bail on the 25 October
1994. An interval of fifteen days between the date of rejection of the bail
application on the 10 October and the date of the applicant's release on bail on
the 25 October after hearing the evidence does not appear difficult to reconcile
with the requirement of "speedily" in Article 5 para. 4
(Art. 5-4) of the Convention.
43.The Commission further notes that a remedy was also at the disposal of the
applicant during this intervening period of fifteen days, since the Convention,
including Article 5 para. 4 (Art. 5-4) thereof, is enforceable as part of the
law of Malta and takes precedence over ordinary law.
CONCLUSION
44.The Commission concludes, unanimously, that in the present case there has
been no violation of Article 5 para. 4 (Art. 5-4) of the Convention.
E.Recapitulation
45.The Commission concludes, unanimously, that in the present case there has
been a violation of Article 5 para. 3 (Art. 5-3) of the Convention (para. 36).
46.The Commission concludes, unanimously, that in the present case there has
been no violation of Article 5 para. 4 (Art. 5-4) of the Convention (para. 45).
M.F. BUQUICCHIO M.P. PELLONPÄÄ
SecretaryPresident
to the First Chamberof the First Chamber
Full & Egal Universal Law Academy