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Cite as: [2010] ECHR 1205, 58 EHRR 32, (2014) 58 EHRR 32

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FOURTH SECTION

CASE OF GATT v. MALTA

(Application no. 28221/08)

JUDGMENT

(merits)

STRASBOURG

27 July 2010

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 Gatt v. Malta,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,

Having deliberated in private on 6 July 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 28221/08) against Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Maltese national, Mr Lawrence Gatt (“the applicant”), on 10 June 2008.

The applicant was represented by Dr J. Herrera, a lawyer practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr Silvio Camilleri, Attorney General.

The applicant alleged that the conversion into imprisonment of the guarantee he had failed to pay when he had breached his bail conditions was excessive and disproportionate.

On 21 September 2009 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1947 and lived in Senglea, Malta.

He is currently in detention.

A. Background of the case

The applicant was facing proceedings before the Magistrates' Court, sitting as a court of criminal judicature, for drug trafficking.

On 13 August 2001 the applicant was granted bail under certain conditions, including a personal guarantee of approximately 23,300 euros (“EUR”). One of these conditions required the applicant to leave his residence only accompanied by his son, between 6 a.m. and 9 a.m. and 3 p.m. and 6.pm, in order to accompany his son to and from school. On 14 August 2001 the applicant signed a declaration stating that he agreed to comply with the above-mentioned obligation and to pay the above-mentioned amount in the event that any of the set conditions were breached. He further deposited the sum of EUR 1,165.

Following a complaint that the applicant had been seen on an unspecified date in Valletta between 6.p.m. and 8 p.m., the Criminal Court, by a decision of 6 June 2006, held that the applicant had breached one of his bail conditions, namely being home by the established curfew. The Criminal Court therefore revoked his bail, ordered his re-arrest and decreed that the EUR 1,165 deposit as well as the EUR 23,300 in guarantee were to be paid to the Government.

As he was unable to pay the guarantee, proceedings were initiated by the Registrar of Courts under Article 585 of the Criminal Code (“the CC”) to convert the sum into imprisonment as stipulated in Article 586 of the CC (not more than one day per EUR 13: see Relevant domestic law, below).

On 28 July 2006 the Criminal Court ordered the sum in guarantee to be converted into a period of detention at the rate of one day per EUR 11.50, namely two thousand days (more than five years and six months) of imprisonment, and the applicant was placed in detention.

C. Constitutional Proceedings

On 12 June 2007 the applicant instituted constitutional proceedings, claiming that Article 586 of the CC and the Criminal Court decision of 28 July 2006 constituted a breach of Article 3 of the Convention in that it provided for an excessive and disproportionate punishment. Unlike other similar provisions of the law, Article 586 did not apply a ceiling on the length of the imprisonment to which a sum could be converted and therefore constituted degrading punishment.

On 19 October 2007 the Civil Court (First Hall) dismissed the applicant's complaint. It noted that the applicant did not complain under Articles 5 or 6 of the Convention that the conditions imposed – which he had freely accepted, knowing the consequences they could entail – had been excessive, but solely under Article 3 on the ground that the length of his penalty had been “excessive” and disproportionate. It held that the length of imprisonment had been clear as soon as the amount of the guarantee had been fixed; accordingly, after knowingly accepting these conditions the applicant could not now complain that the penalty was excessive, since it was related and linked to the amount of the guarantee. Furthermore, the Convention did not afford a right to call into question the length of a sentence imposed by a competent court and in no way had the penalty imposed on the applicant been shown to have reached the threshold required under Article 3.

On 12 February 2008 the Constitutional Court rejected an appeal lodged by the applicant. It held, however, that the first court had erred in considering his detention as falling under Article 5 § 1 (a), namely, following a conviction. His detention had its basis in Article 5 § 1 (b), namely, in order to secure the fulfilment of an obligation prescribed by law. It followed that, according to Strasbourg case-law, there had to be proportionality between the deprivation of liberty and the fulfilment of the obligation. In the present case the applicant had undertaken an obligation knowing the unambiguous and non-arbitrary consequences it entailed, according to a pre-established rate which remained valid up to the date of payment. The fact that no ceiling applied to the provision in question did not affect the proportionality between the obligation and the consequences it entailed. Absolving a person of such an obligation when it had not been fulfilled would render the notion of guarantees against detention futile. This reasoning applied to both Article 5 and Article 3 of the Convention. Indeed, the applicant had neither contested the proportionality of the amount specified in the guarantee imposed nor stated that it was beyond his means. It followed that it could not amount to inhuman or degrading treatment or punishment. Notwithstanding that elements of shocking disproportionality could raise an issue under Article 3 (Leger v France, and Price v the United Kingdom), this was not so in the present case.

II. RELEVANT DOMESTIC LAW

Article 579 of the Criminal Code, Chapter 9 of the Laws of Malta, reads as follows:

“(1) If the person charged or accused fails to appear when ordered by the authority specified in the bail bond, or fails to observe any of the conditions imposed by the court in its decree granting bail, or absconds or leaves Malta, or while on bail commits any crime not being one of an involuntary nature, or interferes or attempts to interfere with witnesses or otherwise obstructs or attempts to obstruct the course of justice whether in relation to himself or any other person, the sum stated in the bail bond shall be forfeited to the Government of Malta, and, moreover, a warrant of arrest shall be issued against him:

Provided that this article shall not apply where the court considers that the infringement of the condition imposed in the decree granting bail is not of serious consequence.

(2) Any person who fails to observe any of the conditions imposed by the court in its decree granting bail shall be guilty of an offence and shall, on conviction, be liable to the punishment of a fine (multa) or to a term of imprisonment not exceeding six months, or to both such fine and imprisonment and the sum stated in the bail bond may be forfeited to the Government of Malta.

(3) Notwithstanding the provisions of any law, any person charged with any offence as mentioned in subarticle (2) shall be arraigned in Court under arrest, and it shall be lawful for the Police to request in the same proceedings the revocation of bail and the rearrest of such person. The proceedings for an offence under subarticle (2) shall be taken by the Police and shall be decided by the Court with urgency.”

Article 585 of the Criminal Code, in so far as relevant, reads as follows:

“(1) For the recovery of the sum fixed in the bail bond in the case referred to in article 579, the court before which the person charged or accused was bound to appear, shall, as the case may be, either issue and enforce a warrant of seizure or of arrest against the surety until payment is effected, or declare the deposit to be forfeited in favour of the Government of Malta, or, in case of pledge, order the sale thereof.”

Article 586 of the Criminal Code, in so far as relevant, reads as follows:

“(1) Any person who is arrested for non-payment of the sum in which he bound himself, shall be detained for a period not exceeding one day for every eleven euro and sixty-five cents (11.65) of that sum, whether such person is the person charged or accused or the surety.”

THE LAW

The applicant complained that the application of Article 586 of the Criminal Code in his case breached his rights under the Convention in that it gave rise to an excessive and disproportionate punishment. He invoked Article 3, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

19. The Court, being master of the characterisation to be given in law to the facts of the case (see Castravet v. Moldova, no. 23393/05, § 23, 13 March 2007; Marchenko v. Ukraine, no. 4063/04, § 34, 19 February 2009; and Berhani v. Albania, no. 847/05, § 46, 27 May 2010), is not bound by the characterisation given by the parties. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by the parties (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, ECHR 2009 ..., and Anusca v. Moldova, no. 24034/07, § 26, 18 May 2010). A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see, for instance, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I). Thus, in the present case the Court has decided to examine the issue raised by the applicant also under Article 5 of the Convention and Article 1 of Protocol No. 4 to the Convention, in addition to Article 3 (see, mutatis mutandis, Zehentner v. Austria, no. 20082/02, § 35, ECHR 2009 ...) and to obtain the parties' submissions thereon.

The provisions, in so far as relevant, read as follows:

Article 5

“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:

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

Article 1 of Protocol No. 4

“No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation.”

I. THE GOVERNMENT'S PRELIMINARY OBJECTION

The Government submitted that the applicant had failed to exhaust domestic remedies in respect of his complaint in so far as it was to be examined under Article 5 and Article 1 of Protocol No. 4. The applicant's complaint to the constitutional jurisdictions had been limited to Article 3 and although the domestic courts had referred to Article 5, en passant, they had taken no decision on the matter. In consequence, the State had not been given the opportunity to redress the violations in question.

The Court reiterates that the purpose of the requirement that domestic remedies must be exhausted is to afford the Contracting States the opportunity of preventing or putting right - normally through the courts - the violations alleged against them before those allegations are submitted to the Convention institutions. This means that the complaint which is intended to be brought before the Court must first be raised, at least in substance and in compliance with the relevant requirements of domestic law, before the appropriate national courts (see, Gasus Dosier- und Fördertechnik GmbH v. the Netherlands, 23 February 1995, § 48, Series A no. 306 B).

The Court notes that in the domestic proceedings before the constitutional jurisdictions the applicant, invoking Article 3, complained about the proportionality of the measure applied to him, namely the Criminal Court's decision of 28 July 2006 ordering his detention for two thousand days, in accordance with Article 586 of the CC.

The Court considers that the complaints, as characterised by the Court, under Article 5 and Article 1 of Protocol No. 4 (see paragraph 19 above) arise out of the same facts and are based on the same arguments, namely the proportionality of the impugned measure, which were brought before the domestic courts. Indeed the Constitutional Court itself referred to the proportionality test under Article 5. Thus, the Court considers that the constitutional jurisdictions were given the opportunity to redress the alleged violations (see, mutatis mutandis, Gasus Dosier- und Fördertechnik GmbH, cited above, § 49).

It follows that in these circumstances the Government's objection must be dismissed.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

The applicant complained that the application of Article 586 of the CC in his case breached Article 3 of the Convention in that it gave rise to an excessive and disproportionate punishment. Indeed, Article 586 did not apply a ceiling on the length of the imprisonment to which a sum could be converted. In the present case, there was no relation of proportionality between the severity of the punishment (2,000 days of imprisonment) and the minor infringement committed (the failure to observe a curfew). Moreover, this prison term, unlike in other cases, was not subject to remission for good behaviour.

The Government submitted that the applicant had freely entered into the obligation, the breach of which entailed the conversion of the sum guaranteed into detention at a pre-determined rate. Moreover, whether the treatment at issue amounted to punishment or otherwise, it had not reached the threshold required to find a violation of Article 3.

The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element (see Kafkaris v. Cyprus [GC], no. 21906/04, §§ 95-96, ECHR 2008 ...)

The Court does not exclude that the imposition of a disproportionate sentence having regard to all the circumstances of the case may give rise to an issue under Article 3 of the Convention (see, mutatis mutandis, Hussain v. the United Kingdom, 21 February 1996, Reports 1996-I; T. v. the United Kingdom and V. v. the United Kingdom [GC], nos. 24724/94 and 24888/94, §§ 99 and 100 respectively, judgments of 16 December 1999 and Einhorn v. France (dec.), no. 71555/01, ECHR 2001-XI). However, to find a State in violation of Article 3 is particularly serious and a minimum level of severity is required for a complaint to fall within the scope of Article 3. The Court observes that, while the length of the applicant's detention as a result of his failure to pay the amount of the guarantee may be a source of stress and anxiety to the applicant, it cannot be said to have reached the threshold proscribed by Article 3.

It follows that this complaint is inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

A. Admissibility

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties' submissions

The applicant submitted that the measure in question was punitive in nature. It was applied solely in consequence of his failure to fulfil a contractual obligation, thus it ran counter to Article 5 § 1, particularly in view of its disproportionality. The applicant highlighted that unlike other similar provisions in the law, Article 586 of the CC did not apply a ceiling placing a reasonable cap on the maximum length of detention. Moreover, in such circumstances the applicant could not benefit from remission for good behaviour.

The Government submitted that, following the breach of his bail conditions, the applicant was placed in detention in accordance with the first limb of Article 5 § 1 (b), namely in order to secure the fulfilment of an obligation that was prescribed by law and was entered into freely. However, the measure applied was also a result of the applicant's failure to comply with the lawful order of a court and also fell under the second limb of Article 5 § 1 (b). Hence, it was punitive in nature. In such circumstances, there had been no other course of action than to apply the detention prescribed by law.

The Government submitted that the bail conditions imposed by the court had been specific, clear and unequivocal. They were necessary measures giving due importance to the right to liberty. Once, the applicant breached one of the conditions imposed, he suffered the envisaged consequences. However, the applicant had had every opportunity to comply with the order of the court to pay the guarantee money, at which moment he would be released, yet he failed to do so. The obligation therefore remained unfulfilled to the present day. The Government further submitted that remission did not apply to the applicant's case since his freedom was in his hands.

2. The Court's assessment

The Court reiterates that Article 5 § 1 contains an exhaustive list of permissible grounds of deprivation of liberty. However, the applicability of one ground does not necessarily preclude that of another; a detention may, depending on the circumstances, be justified under more than one sub-paragraph (see, for example, Eriksen v. Norway, judgment of 27 May 1997, Reports 1997-III, pp. 861-62, § 76, and Enhorn v. Sweden, no. 56529/00, § 34, ECHR 2005-...). The Court considers that the same applies to separate limbs of the same subparagraph.

In the present case, the Government submitted that the detention was in accordance with Article 5 § 1 (b) under both its first and second limbs.

The first limb refers to detention for “non-compliance with the lawful order of a court”, already made against the individual. The Convention organs have applied it to include, inter alia, failure to pay a court fine (see Airey v. Ireland, Decisions and Reports (DR) no. 8), failure to undergo medical examinations ordered by a court (see X. v. Austria, DR no. 18, and X v. FRG, no.6659/74, DR no.3), failure to comply with a decision to hand over children to a parent (see Paradis v Germany, (dec). no.4065/04, 4 September 2007), failure to observe residence restrictions imposed by a judicial decision (see Freda v Italy, DR no. 21) and failure to observe binding-over orders (see, for example, Steel and Others v. the United Kingdom, 23 September 1998, § 69, Reports 1998 VII).

The Court notes that the applicant did not comply with the court order of 6 June 2006 ordering him to pay EUR 23,300 and was consequently imprisoned for two thousand (2,000) days.

Bearing in mind that the Convention and its Protocols have to be read as a whole, the Court draws attention to the provision of Article 1 of Protocol No. 4 which prohibits imprisonment merely on the ground of inability to fulfil a contractual obligation. The Court has already expressed reservations about the imprisonment in default system as such, considering it as constituting an archaic custodial measure available only to the Treasury (in the French system) (see Göktan v. France, no. 33402/96, § 51, ECHR 2002 V). However, it noted that Article 1 of Protocol No. 4 would not apply to such a system, since the provision prohibits imprisonment for debt solely when the debt arises under a contractual obligation (see Göktan, cited above § 51). However, although the circumstances in the present case are different to those in Göktan and require a further analysis under Article 1 of Protocol No. 4, the Court is ready to accept that the Government could rely on the first limb of Article 5 § 1 (b) as a ground for the applicant's detention.

The Court reiterates that Article 5 § 1 of the Convention requires in the first place that the detention be “lawful”, which includes the condition of compliance with a procedure prescribed by law. The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness. A period of detention will in principle be lawful if it is carried out pursuant to a court order (see Benham v. the United Kingdom, §§ 40 and 42, 10 June 1996, Reports 1996-III). However, the domestic authorities must strike a fair balance between the importance in a democratic society of securing compliance with a lawful order of a court, and the importance of the right to liberty (see Paradis v France, (dec.) cited above). The Court considers that in such circumstances issues such as the purpose of the order, the feasibility of compliance with the order, and the duration of the detention are matters to be taken into consideration. The issue of proportionality assumes particular significance in the overall scheme of things.

The Court observes that it is not in dispute that the detention was ordered by the domestic courts pursuant to Article 585 and that the length of the detention was stipulated on the basis of Article 586 of the CC. It remains to be determined whether the measure in question was proportionate.

The purpose of the court order was to secure payment of an amount due to the authorities by way of a penalty for breaching bail conditions. The Court considers that monetary guarantees are indispensable to ensure respect for the right to liberty when considering remand in custody. It notes however that in 2006 the applicant was indigent and unable to pay the said amount, although he might have been able to do so when he assented to the obligation in 2001. Indeed, it would have been reasonable for the applicant to assume that the proceedings against him would not have lasted over five years. The Court observes that the applicant had been under strict bail conditions (see paragraph 8 above) for nearly five years. Thus, it is plausible to conclude that he had been unable to earn a living during that period. In such circumstances, it was unrealistic to expect that the applicant would be able to comply with the court order.

43. The Court further notes that in the cases examined under the first limb of Article 5 § 1 (b) the duration of the detention amounted to short periods, such as four days (see, Airey v. Ireland, Commission decision, cited above) or one week (see Freda, and Steel and Others, both cited above) and at maximum six months (see Paradis, cited above). In the present case, the detention for non-compliance with a court order has so far amounted to over four years and is set to last for over five years and six months in total. Moreover, this period was not subject to remission, as would have been the case had the applicant been detained after conviction (Article 5 § 1 (a)). Nor was this period of detention subject to the guarantees of Article 5 § 3, as would have been the case had the applicant been remanded in custody on suspicion of having committed a crime (Article 5 § 1 (c)). In light of the above, the Court considers that a period of detention of more than five years and six months (two thousand days) for failure to comply with a court order to pay EUR 23,300 as a result of a one-time breach of curfew imposed as a bail condition cannot be considered to strike a fair balance between the importance in a democratic society of securing compliance with a lawful order of a court and the importance of the right to liberty.

44. In consequence, in so far as it is based on this ground, the applicant's entire period of detention cannot be said to have been in accordance with Article 5 § 1 of the Convention.

The Court must nevertheless consider whether the detention was Convention compatible on the basis of the second ground invoked by the Government, namely the second limb of Article 5 § 1 (b) “in order to secure the fulfilment of any obligation prescribed by law”.

The Court reiterates that the second limb of Article 5 § 1 (b) allows for detention to secure the fulfilment of a specific and concrete obligation prescribed by law, which is already incumbent on the person concerned. The arrest and detention must be for the purpose of securing its fulfilment and not punitive in character. Moreover, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question and the importance of the right to liberty. In this assessment the nature of the obligation arising from the relevant legislation including its underlying object and purpose, the person being detained, the particular circumstances leading to the detention and the length of the detention are relevant (see Vasileva v. Denmark, no. 52792/99, §§ 36-38, 25 September 2003).

The Court considers that the obligation undertaken by the applicant on 14 August 2001 to pay EUR 23,300 in the event that he breached his bail conditions was concrete and sufficiently precise.

As to the purpose of detention, the Court notes that at that stage it was no longer to ensure compliance with bail conditions, but simply to ensure the payment of the sum guaranteed. The Court has previously held that imprisonment in default of payment (of a customs fine) was not a means of enforcing the fine, but a penalty (see Jamil v. France, 8 June 1995, § 32, Series A no. 317 B, and Göktan, cited above, § 48) and the Government have acknowledged that in the present case the measure was punitive in nature (see paragraph 33 above). The Court sees no reason to differ. In particular, it notes that, imprisonment in default as applied to the failure to pay a guarantee following a breach of bail conditions, may give rise to a situation where an individual is imprisoned for a longer time than the term he would have served had he been found guilty of the crime he was charged with. The situation would be even more paradoxical if the individual were to be acquitted of such charges. The Court, furthermore, has difficulty in accepting that the detention of the applicant could secure the fulfilment of the obligation as his indigent state (see paragraph 42 above) will undoubtedly persist and quite plausibly increase while he remains in jail.

As regards the circumstances leading to the detention, the Court notes that the applicant, who, pending criminal proceedings for drug trafficking, was on bail subject to residence restrictions, had not abided by his curfew on one occasion. As a result he has been detained, and will continue to be so, for a total of more than five and a half years (two thousand days), unless he pays the sum of EUR 23,300. The Court observes that Maltese law, in respect of the circumstances in which a bail bond will be forfeited to the Government as a result of a failure to observe bail conditions (Article 579 of the CC), makes no distinction between conditions related to the primary purpose of bail, namely appearance at the trial, or conditions related to other considerations. It however, gave the authorities discretion not to apply the said provision if the breach of conditions was not of a serious nature. In the present case where the condition breached, referred to a curfew and was not connected to the primary purpose of granting bail, the Court has difficulty in understanding the authorities' decision to apply the relevant article. In this light, the Court finds it relevant to point out that in the absence of proper guidelines as to the exercise of discretion under Article 579, or of a distinction between breaches of conditions relating to the primary purpose of bail and other considerations, Maltese law is deficient in that it can lead to arbitrary and disproportionate results.

50. The Court, accepts that in granting the applicant bail in the first place, the domestic authorities were bearing in mind the importance of the right to liberty. It is also ready to accept that subsequently the domestic court applied the relevant conversion parameters correctly and in good faith. However, the Court observes that Article 586 of the CC does not apply to imprisonment in default a ceiling on the duration of the detention (an individual could hypothetically also be imprisoned for life), nor does it provide for any assessment of proportionality and therefore Maltese law is deficient also in this respect. Indeed, the application of the law in the present case gave rise to a period of detention of excessive duration vis à vis the obligation to be fulfilled as a consequence of the breach committed.

51. In conclusion, the Court considers that in the circumstances of the present case, and especially on account of its duration, the applicant's detention was disproportionate. In particular, the law and its application to the applicant, failed to strike a balance between the importance in a democratic society of securing the immediate fulfilment of the obligation in question and the importance of the right to liberty.

Accordingly, the Court finds a violation of Article 5 § 1 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 4 TO THE CONVENTION

The applicant submitted that he was deprived of his liberty as a result of a court order for failure to fulfil a contractual obligation contrary to Article 1 of Protocol No.4 to the Convention.

The Government submitted that in the present case the provision was not applicable, and even if it were so there had been no violation.

Leaving open the question as to whether Article 1 of Protocol No. 4 is applicable in the present case, the Court notes that this complaint is closely linked to the one examined above and must therefore likewise be declared admissible (see, mutatis mutandis, Ezel Tosun v. Turkey, no. 33379/02, § 28, 10 January 2006).

However, having regard to its finding of a violation of Article 5 § 1 the Court does not consider it necessary to examine the complaint separately.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“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.”

The applicant did not formulate a detailed Article 41 claim, confining himself to indicating what might be an acceptable disposal of the case, namely the deduction of the time already spent in detention from any sentence of imprisonment which might be imposed if he were ultimately convicted of the criminal charges pending against him or, in the event of his acquittal of those charges, the award of compensation for the period of his unlawful detention.

Having examined the circumstances of the case, the Court considers that the question under Article 41 is not ready for decision. That question must accordingly be reserved and the subsequent procedure fixed, having due regard to any agreement which might be reached between the respondent Government and the applicant (Rule 75 § 1 of the Rules of Court). The Court can only note in this latter connection that the applicant has been in detention since 28 July 2006, a period of time which the Court has found to be disproportionate and in flagrant breach of Article 5 of the Convention. Bearing in mind the urgent need to put an end to the violation of Article 5 § 1 (see paragraph 52 above), the respondent State should in any event give consideration to securing the applicant's immediate release from detention in so far as the legal basis for this period of detention is the Criminal Court's decision of 28 July 2006 applying Articles 585 and 586 of the Criminal Code.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Declares the complaint concerning Article 5 § 1 of the Convention and Article 1 of Protocol No. 4 to the Convention admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 5 § 1 of the Convention;

3. Holds that it is not necessary to examine the complaint under Article 1 of Protocol No. 4 to the Convention;

Holds that the question of the application of Article 41 is not ready for decision and accordingly,

(a) reserves the said question as a whole;

(b) invites the Government and the applicant to submit, within one month from the date on which this judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;

(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be.

Done in English, and notified in writing on 27 July 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Lawrence Early Nicolas Bratza
Registrar President