(Application no. 33740/06)
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. 2),
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
A. The background of the case
B. The proceedings before the Court of Magistrates
“In regard to whether the accused is going to plead guilty or not guilty as charged the same accused would like to point out that first of all he is contesting the jurisdiction of the Maltese courts to try him and secondly that the facts do not constitute, in his regard, an offence under the laws of Malta and thirdly that he is not guilty of any fact alleged against him. To all intents and purposes of law, the Court [of Magistrates], having heard what has just been put down in the records of the proceedings, is considering the accused as pleading not guilty as charged.”
The Court of Magistrates did not require the arresting officer to justify why the applicant had been arrested or why his detention was necessary. It declared, without entering a minute to that effect in the records, that the warrant had been issued by a magistrate and confirmed by another magistrate and both sets of proceedings had been held in camera and the arrest had been authorised. Moreover, the case had been examined by the Spanish courts in the context of their consideration of Malta's request for the applicant's extradition. In the minutes it further referred to the fact that the validity of the warrant as regards its procedural aspects was affirmed by the Constitutional Court in a further set of proceedings which took place while the applicant was still in Spain. Thus, the warrant was sufficient to enable the arrest to be considered lawful at that stage of the proceedings. Nothing had been brought to the attention of the court which enabled it to say that the person charged was under arrest without justification.
C. The applicant's constitutional claim
D. Other attempts by the applicant to obtain release pending these proceedings
E. The proceedings following the Constitutional Court's judgment
II. RELEVANT DOMESTIC LAW AND PRACTICE
“Where there are lawful grounds for the arrest of a person, the police may request a warrant of arrest from a magistrate, unless in accordance with any provision of law the arrest in question may be made without a warrant.”
Article 401 (2)
“(2) On the conclusion of the inquiry, the court shall decide whether there are or not sufficient grounds for committing the accused for trial on indictment.”
“(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 of 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 sub-article shall be filed together with the application by the Attorney General to the Criminal Court.”
“(1) Any person in custody for an offence of which he is charged or accused before the Court of Magistrates and who, at any stage other than that to which Article 574A applies, alleges that his continued detention is not in accordance with the law may at any time apply to the court demanding his release from custody. Any such application shall be appointed for hearing with urgency and together with the date of the hearing shall be served on the same day of the application on the Commissioner of Police or, as the case may be, on the Commissioner of Police and the Attorney General, who may file a reply thereto by not later than the day of the hearing.
(2) The provisions of Article 574A(2) and (3) shall apply mutatis mutandis to an application under this article.
(3) Where the application is filed in connection with proceedings pending before the Court of Magistrates as a court of criminal inquiry before a bill of indictment has been filed and the record of the inquiry is with the Attorney General in connection with any act of the proceedings, the application shall be filed in the Criminal Court and the aforegoing provisions of this Article shall apply mutatis mutandis thereto.”
(4) The provisions of Article 409A(4) shall apply to a decision of the Court of Magistrates under this Article.”
“(1) When the person charged or accused who is in custody is first brought before the Court of Magistrates, whether as a court of criminal judicature or as a court of criminal inquiry, the Court shall have the charges read out to the person charged or accused and, after examining the person charged as provided in Article 392 as the proceedings may require, shall summarily hear the prosecuting or arraigning officer and any evidence produced by that officer on the reasons supporting the charges and on the reasons and circumstances, if any, militating against the release of the person charged or accused.
(2) After hearing the prosecuting or arraigning police officer and any evidence produced as provided in sub-article (1) the court shall inform the person charged or accused that he may be temporarily released from custody on bail by the court under conditions to be determined by it and shall ask him what he has to say with respect to his arrest and his continued detention and with respect to the reasons and the circumstances militating in favour of his release.
(3) Where any of the offences charged consists in any of the offences mentioned in Article 575(2) the court shall, after hearing the person charged or accused as provided in sub-article (2) of this article, ask the prosecuting or arraigning officer whether he has any submissions to make on the question of temporary release from custody on bail of the person charged or accused and the latter shall be allowed to respond.
(5) At the end of submissions as provided in the preceding sub-articles of this Article the court shall review the circumstances militating for or against detention.
(6) If the court finds that the continued detention of the person charged or accused is not founded on any provision of this Code or of any other law which authorises the arrest and detention of the person in custody it shall unconditionally release that person from custody.
(7) If the court does not find cause to release unconditionally the person charged or accused ... it may nevertheless ... release that person from custody on bail subject to such conditions as it may deem appropriate.
(8) If the court does not find cause to release unconditionally the person charged or accused and refuses to grant that person bail the court shall remand that person into custody ...”
“(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) and Kadem v. Malta, (cited above, § 53), 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 cases the applicants had not had at their disposal, under domestic law, a remedy for challenging the lawfulness of their detention under Article 5 § 4.
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
“ 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.”
1. The parties' submissions
2. General principles
3. The Court's assessment
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
“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. Victim status
2. The Government's objection of non-exhaustion of domestic remedies
1. The parties' submissions
2. General principles
3. The Court's assessment
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
FOR THESE REASONS, THE COURT
1. Joins unanimously to the merits the Government's preliminary objection to the applicant's victim status regarding the complaint under Article 5 § 4 of the Convention and declares the application admissible;
4. Holds unanimously that there is no need to examine the complaint under Article 13 of the Convention.
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 following separate opinions are annexed to this judgment:
(a) Dissenting opinion of Judge Bonello;
(b) Partly dissenting opinion of Judge Bianku.
DISSENTING OPINION OF JUDGE BONELLO
Violation of Article 5 § 3 – The fundamental right to take it easy
Article 5 § 4 – The right of asking for two and settling for one
PARTLY DISSENTING OPINION OF JUDGE BIANKU
Like Judge Bonello, I too have voted for a finding of a violation of Article 5 § 3 of the Convention. I consider that my concerns on the Article 5 § 3 issue have been fully covered in Judge Bonello's dissenting opinion in so far as it addresses that particular complaint.
1 GC judgments of 29 April 1999, Reports 1999-III
2 At § 56 of the judgment.
3 See, for example: Quinn v. France, 22 March 1995, Series A no. 311; Mazzoni v. Italy, 1 July 1997, Labita v. Italy [GC], no. 26772/95, ECHR 2000 IV.
1 At § 59 of the judgment.
2 When the applicant raised the plea of jurisdiction, that very recent case-law may have been subject to appeal.
3 According to Aquilina v. Malta, the obligation of ‘promptness’ requires not only the prosecution to bring a detained person before a judicial authority ‘promptly’ but also that the control of the lawfulness of the detention should equally be ‘prompt’ (vide §§ 48, 49).
1 Musial v. Poland, (no. 24557/94), 25 March 1999.
1 See § 86 of the judgment.
1 Sabeur Ben Ali v. Malta (no. 35892/97), 29 June 2000) and Kadem v. Malta (no. 55263/00), 9 January 2003).
2 At § 72 of the judgment.