VELLA v. MALTA



                  EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 18420/91

                             Tonio Vella

                                against

                                 Malta

                       REPORT OF THE COMMISSION

                     (adopted on 20 January 1994)

                           TABLE OF CONTENTS

                                                                 Page

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PART I:   STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . 2

PART II:  SOLUTION REACHED. . . . . . . . . . . . . . . . . . . . . 3

                             INTRODUCTION

1.    This Report relates to the application introduced under Article

25 of the European Convention on Human Rights by Tonio Vella against

Malta on 7 May 1991.  It was registered on 26 June 1991 under file

No. 18420/91.

      The applicant was represented before the Commission by

Dr. Giovanni Bonello, an advocate practising in Valletta.  The

respondent Government were represented by their Agent,

Dr. Anthony Borg Barthet, Attorney General.

2.    On 17 February 1993 the European Commission of Human Rights

declared the application admissible. It then proceeded to carry out its

task under Article 28 para. 1 of the Convention which provides:

      "In the event of the Commission accepting a petition

      referred to it:

      a.  it shall, with a view to ascertaining the facts, undertake

      together with the representatives of the parties an examination

      of the petition and, if need be, an investigation, for the

      effective conduct of which the States concerned shall furnish all

      necessary facilities, after an exchange of views with the

      Commission;

      b.  it shall at the same time place itself at the disposal of the

      parties concerned with a view to securing a friendly settlement

      of the matter on the basis of respect for Human Rights as defined

      in this Convention."

3.    The Commission  found that the parties had reached a friendly

settlement of the case and on 20 January 1994 adopted this Report

which, in accordance with Article 28 para. 2 of the Convention, is

confined to a brief statement of the facts and of the solution reached.

4.    The following members were present when the Report was adopted:

                 MM.  C.A. NØRGAARD, President

                      S. TRECHSEL

                      A. WEITZEL

                      E. BUSUTTIL

                      G. JORUNDSSON

                      A.S. GÖZÜBÜYÜK

                      J.-C. SOYER

                      H. DANELIUS

                 Mrs. G.H. THUNE

                 MM.  F. MARTINEZ

                      C.L. ROZAKIS

                 Mrs. J. LIDDY

                 MM.  L. LOUCAIDES

                      J.-C. GEUS

                      M.P. PELLONPÄÄ

                      B. MARXER

                      M.A. NOWICKI

                      I. CABRAL BARRETTO

                      B. CONFORTI

                      N. BRATZA

                      I. BÉKÉS

                      E. KONSTANTINOV

                                PART I

                        STATEMENT OF THE FACTS

5.    On 2 December 1983, following the receipt of information from an

informant alleging that weapons and other illegal objects were to be

found in the applicant's residence and the garage opposite, the police

entered his home without giving the authority for their action or any

reasons and conducted a search which found nothing. The applicant

submits that no such information was received.

6.    The applicant was subsequently arrested and detained for

questioning by the police.The applicant was kept in detention for

46 hours although his interrogation only lasted one hour.

7.    The applicant subsequently instituted proceedings against the

police alleging that his human rights had been infringed.

8.    On 5 December 1986, the Civil Court ruled that the applicant had

been subjected to inhuman and degrading treatment while in detention

and that his arrest and detention had violated his fundamental rights.

It also ruled that the entry to and search of the applicant's home was

not in violation of the Maltese Constitution.

9.    Both parties appealed to the Constitutional Court which gave its

judgment on 5 April 1991. It held that the arrest and detention of the

applicant violated his constitutional right against arbitrary arrest

and detention, as there existed no suspicion that the applicant had

committed or was about to commit a criminal offence.  It also found

that during the investigation the applicant had been subjected to

inhuman and degrading treatment.

10.   On the issue of the entry and search of the applicant's home the

Constitutional Court found that although they violated the provisions

of the Criminal Code (Article 352), because the police failed to inform

the persons present of the reasons for the entry and search, they were

not contrary to the Maltese Constitution which provides for the search

of premises where reasonably required in the interests of public order

(Article 38(2)a):

      "The failure of the respondent refers only

      to his legal duties under the Criminal Code. The Article of the

      Constitution requires only `reasonable necessity' and only as

      regards such requirement there was no breach of Art. 38 of the

      Constitution."

11.   The Constitutional Court rejected the appeal by the police

against the finding of a violation of the applicant's rights in respect

of other matters. It ordered that the applicant be liable for a fourth

of the costs.

12.   The applicant complained to the Commission that the police entry

and search of his home was illegal and lacking in justification and

that they thereby constituted an interference with his right to respect

for his home contrary to Article 8 of the Convention.

                                PART II

                           SOLUTION REACHED

13.   Following its decision on the admissibility of the application,

the Commission placed itself at the disposal of the parties with a view

to securing a friendly settlement in accordance with

Article 28 para. 1 (b) of the Convention and invited the parties to

submit any proposals they wished to make.

14.   In accordance with the usual practice, the Secretary, acting on

the Commission's instructions, contacted the parties to explore the

possibilities of reaching a friendly settlement.

15.   Between February 1993 and January 1994 there were discussions

between the parties concerning a friendly settlement of the case.

16.   In light of the response of the parties, the Commission decided

to invite the parties to a meeting in Malta on 5 January 1994 with a

view to discussing the possibilities of reaching a friendly settlement.

At the meeting, the Commission was represented by Mr. Busuttil as

Delegate, the Secretary of the Commission and another member of the

Secretariat. As a result of these negotiations, the parties reached

agreement in the terms set out below.

17.   In a document dated 5 January 1994, the Government proposed

settling the case on the following basis.

      "With a view to terminating the proceedings in Application

      No. 18420/91 introduced by Mr. Tonio Vella and without

      implying any admission of a violation of the European

      Convention on Human Rights, the Government of Malta propose

      a friendly settlement on the terms set out below:

      1. The Government of Malta declares that in the case under

      examination the applicant's behaviour should not have given

      rise to any suspicion and was not in breach of the Criminal

      Code. The Government further accepts that there was no

      improper motive in bringing this application before the

      Commission.

      2. The Government of Malta will make an ex gratia payment

      of Lm 2000 to the applicant.

      3. The Government of Malta will pay the 25% (unpaid) of the

      costs and fees incurred by the applicant in the

      constitutional proceedings.

      4. The Government of Malta will reimburse the applicant in

      respect of the reasonable legal fees incurred in his legal

      representation before the Commission, in the amount of

      Lm 600.

      The above offer is made in full and final settlement of the

      claims made by the applicant in Application No. 18420/91."

18.   In a statement dated 5 January, the applicant accepted the above

proposals:

      "With reference to Application No. 18420/91 pending before the

      European Commission of Human Rights in Strasbourg and in view of

      the Government of Malta's offer of 5 January 1994, the applicant

      accepts the proposed terms in full and final settlement of the

      claims made therein and hereby declares Application No. 18420/91

      to be settled.

      This declaration is made in view of the settlement within the

      meaning of Article 28 para. 1 (b) of the European Convention of

      Human Rights which has been reached in co-operation with the

      European Commission of Human Rights in the proceedings concerning

      this application."

19.   At its session on 20 January 1994 the Commission found that the

parties had reached agreement regarding the terms of a settlement.  It

further considered, having regard to Article 28 para. 1 (b) of the

Convention, that the friendly settlement of the case had been secured

on the basis of respect for Human Rights as defined in the Convention.

20.   For these reasons, the Commission adopted the present Report.

Secretary to the Commission               President of the Commission

          (H.C. KRUGER)                          (C.A. NØRGAARD)

 

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