(Application no. 11956/07)
21 April 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Stephens v. Malta (no. 1),
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 31 March 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
1. The background of the case
2. Proceedings before the Court of Magistrates as a Court of Criminal Inquiry
3. Proceedings before the Civil Court (First Hall)
4. Proceedings before the Constitutional Court
5. The situation after the judgments
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. As regards the Maltese courts' jurisdiction over the offence at issue
“(1) Saving any other special provision of this Code or of any other law conferring jurisdiction upon the courts in Malta to try offences, a criminal action may be prosecuted in Malta –
(i) against any person who commits an offence which, by express provision of law, constitutes an offence even when committed outside Malta.”
“Whosoever in Malta conspires with one or more persons in Malta or outside Malta for the purpose of committing any crime in Malta liable to a punishment of imprisonment, not being a crime in Malta under the Press Act, shall be guilty of the offence of conspiracy to commit that offence.”
“(1) Any person –
(d) who in Malta aids,... ;or
(e) being a citizen of Malta or a permanent resident in Malta, who in any place outside Malta does any act which if committed in Malta would constitute an offence of selling or dealing in a drug against this Ordinance or an offence under paragraph (f); or
(f) who with another one or more persons in Malta or outside Malta conspires for the purposes of selling or dealing in a drug in these Islands against the provisions of this Ordinance or who promotes, constitutes, organises or finances the conspiracy, shall be guilty of an offence against this Ordinance.”
2. As regards the basis of the extradition
“The request shall be in writing and shall be communicated through diplomatic channels. Other means of communication may be arranged by direct agreement between two or more Parties.
The request shall be supported by:
the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party; ...”
“Except where this Convention otherwise provides, the procedure with regard to extradition and provisional arrest shall be governed solely by the law of the requested Party.”
3. As regards the remedies against unlawful detention
“ (1) Any person who alleges he is being unlawfully detained under the authority of the police or of any other public authority not in connection with any offence with which he is charged or accused before a court may at any time apply to the Court of Magistrates, which shall have the same powers which that court has as a court of criminal inquiry, demanding his release from custody. Any such application shall be appointed for hearing with urgency and the application together with the date of the hearing shall be served on the same day of the application on the applicant and on the Commissioner of Police or on the public authority under whose authority the applicant is allegedly being unlawfully detained. The Commissioner of Police or public authority, as the case may be, may file a reply by not later than the day of the hearing.
(2) On the day appointed for the hearing of the application the court shall summarily hear the applicant and the respondents and any relevant evidence produced by them in support of their submissions and on the reasons and circumstances militating in favour or against the lawfulness of the continued detention of the applicant.
(3) If, having heard the evidence produced and the submissions made by the applicant and respondents, the court finds that the continued detention of the applicant is not founded on any provision of this Code or of any other law which authorises the arrest and detention of the applicant it shall allow the application. Otherwise the court shall refuse the application.
(4) Where the court decides to allow the application the record of the proceedings including a copy of the court's decision shall be transmitted to the Attorney General by not later than the next working day and the Attorney General may, within two working days from the receipt of the record and if he is of the opinion that the arrest and continued detention of the person released from custody was founded on any provision of this Code or of any other law, apply to the Criminal Court to obtain the re-arrest and continued detention of the person so released from custody. The record of the proceedings and the court's decision transmitted to the Attorney General under the provisions of this subarticle shall be filed together with the application by the Attorney General to the Criminal Court.”
“The following shall be in all cases provisionally enforceable:
(b) any judgment ... providing remedies against illegal arrest...;”
4. As regards the role of the Constitutional Courts
“(4) The Constitutional Court shall ... have jurisdiction to hear and determine all appeals under this Act and exercise all such powers as are conferred on it by this Act.”
“(1) Any person who alleges that any of the Human Rights and Fundamental Freedoms, has been, is being or is likely to be contravened in relation to him, or such other person as the Civil Court, First Hall, in Malta may appoint at the instance of any person who so alleges, may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress.
(2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of sub-article (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement, of the Human Rights and Fundamental Freedoms to the enjoyment of which the person concerned is entitled:
Provided that the court may, if it considers it desirable so to do, decline to exercise its powers under this sub-article in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other ordinary law.
(4) Any party to proceedings brought in the Civil Court, First Hall, in pursuance of this article shall have a right of appeal to the Constitutional Court.”
Consequently, a complaint must be lodged with both instances before it is introduced with the Strasbourg Court. However, in Sabeur Ben Ali v. Malta, no. 35892/97, 29 June 2000, § 40, the Court held that this procedure was rather cumbersome and therefore lodging a constitutional application would not have ensured a speedy review of the lawfulness of the applicant's detention. Consequently in the cited case the applicant had not had at his disposal, under domestic law, a remedy for challenging the lawfulness of his detention under Article 5 § 4.
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
4. 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.”
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
“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.”
I. THE COURT'S JURISDICTION TO EXAMINE THE APPLICATION AGAINST MALTA
A. General principles
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”
49. According to established case-law Article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case. The Court refers to its case-law on the notion of “jurisdiction” and how that notion has been interpreted and applied in different contexts (see Ilaşcu and Others [GC], no. 48787/99, cited above; Banković and Others v. Belgium and 16 Other Contracting States (dec.) [GC], no. 52207/99, ECHR 2001 XII; Assanidzé v. Georgia, [GC], no. 71503/01, ECHR 2004 ...; Soering v. the United Kingdom, 7 July 1989, Series A no. 161; Cruz Varas and Others v. Sweden, 20 March 1991, Series A no. 201; Vilvarajah and Others v. the United Kingdom, 30 October 1991, Series A no. 215; Loizidou v. Turkey (preliminary objections), 23 March 1995, Series A no. 310; Loizidou v. Turkey, 18 December 1996, Reports of Judgments and Decisions 1996 VI; Issa and Others v. Turkey, no. 31821/96, 16 November 2004; Behrami and Behrami v. France and Saramati v. France, Germany and Norway (dec.) [GC], nos. 71412/01 and 78166/01, 2 May 2007; Drodz and Janousek v. France and Spain, 26 June 1992, Series A no. 240, and Hess v. the United Kingdom, no. 6231/73, 28 May 1975, Decisions and Reports (DR) no. 2, p. 72).
B. The Court's assessment
51. The Court notes that the applicant was under the control and authority of the Spanish authorities in the period between his arrest and detention in Spain on 5 August 2004 and his release on bail on 22 November 2004. In so far as the alleged unlawfulness of his arrest and detention is concerned, it cannot be overlooked that the applicant's deprivation of liberty had its sole origin in the measures taken exclusively by the Maltese authorities pursuant to the arrangements agreed on by both Malta and Spain under the European Convention on Extradition.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION.
A. The period of detention from 5 August 2004 to 12 November 2004
1. The complaint in relation to the authority of the court to issue the arrest warrant
2. The complaint in relation to the existence of a triable offence in Malta
B. The period of detention from 12 November 2004 to 22 November 2004, following the Civil Court's judgment
(a) The Government's objection of lack of victim status
(a) The parties' submissions
(b) The Court's assessment
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
A. Lack of competence of the Court of Magistrates
B. Disregard of the principle of equality of arms before the Court of Magistrates
(a) The parties' submissions
(b) General principles
(c) The Court's assessment
C. Shortcomings in the remedial action before the Constitutional Court
IV. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Pecuniary damage
B. Non-pecuniary damage
C. Costs and expenses
D. Default interest
FOR THESE REASONS, THE COURT
2. Declares unanimously admissible the complaint under Article 5 § 4 of the Convention regarding the inequality of arms between the parties arising from Article 409 of the Maltese Criminal Code; and the remainder of the application inadmissible;
that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention,
(a) EUR 500 (five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage and;
(b) EUR 1,000 (one thousand euros) plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 21 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Nicolas Bratza is annexed to this judgment.
PARTLY DISSENTING OPINION OF JUDGE BRATZA