European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 44855/10
Francis SAID
against Malta

The European Court of Human Rights (Fourth Section), sitting on 24 January 2012 as a Committee composed of:

Päivi Hirvelä, President,
Ledi Bianku,
Zdravka Kalaydjieva, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 6 August 2010,

Having regard to the declaration submitted by the Government requesting the Court to strike the application out of the list of cases,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Francis Said, is a Maltese national who was born in 1932 and lives in Malta. He is represented before the Court by Dr Pierre Lofaro, a lawyer practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr Peter Grech, Attorney General.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 5 December 1997 the applicant, at the time aged sixty-five, was arraigned in front of the Court of Magistrates as a Court of Criminal Judicature charged with corruption, embezzlement, misappropriation of funds, false declarations, theft of Government money and use of false documents. It took the prosecution four years and twenty eight hearings to declare that it had no further evidence to adduce and between November 2001 and October 2005 the case was assigned to various different magistrates.

On 28 March 2006 the applicant was declared not guilty of the said charges.

On an unspecified date the applicant instituted constitutional redress proceedings invoking Articles 3 and 6 of the Convention. He complained that the initiation of proceedings against him, when it was clear that there was no evidence capable of satisfying criminal standards, constituted inhuman and degrading treatment. He further complained about the length of his proceedings of more than eight years for one level of jurisdiction.

By a judgment of 6 May 2009 the Civil Court First Hall dismissed his claims in part. It found that there had not been a violation of Article 3 of the Convention. Although the applicant’s arrest and arraignment in court had caused anxiety, it could not amount to degrading or inhuman treatment. The Civil Court, however, found a violation of Article 6 of the Convention and awarded the applicant EUR 12,000 as just satisfaction.

On appeal, by a judgment of 12 February 2010, the Constitutional Court, confirmed that there had not been a violation of Article 3 and upheld the violation of Article 6 but reduced the compensation for the latter to EUR 3,000.

COMPLAINTS

The applicant complained that he had suffered a violation of Article 3 because the criminal proceedings against him had been frivolous and simply aimed to degrade him in the eyes of the public. He further complained under Article 6 about the excessive length of his criminal proceedings.

THE LAW

A.  Article 6 § 1 – length of proceedings

The applicant complained about the length of the criminal proceedings against him. The relevant part of Article 6 § 1 of the Convention provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

On 11 May 2011 the Court received a unilateral declaration from the Government made with a view to resolving the application. The Government requested the Court to strike out the application of its list of cases in accordance with Article 37 of the Convention. The declaration, in particular, reads:

"Whereas the efforts with a view to securing a friendly settlement of the case have been unsuccessful, the Government wishes to express – by way of its unilateral declaration – its acknowledgement that, in the circumstances of the present case, the length of the criminal proceedings have failed to fulfil the requirement of “reasonable” within the meaning of Article 6 § 1 of the Convention.

Consequently, the Government are prepared to pay to the applicant the amount of two thousand and five hundred Euro (EUR 2,500) which they consider reasonable in the light of the Court’s case law. The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be chargeable to the applicants. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of a failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

The Government, therefore, request that the application be struck out of the Court’s list of cases pursuant to Article 37 § 1(c) of the Convention.”

The applicant did not reply when asked to comment on the above declaration. By a registered letter of 2 November 2011, the Registry informed the applicant that the Court will examine the case on the basis of the file as it stands.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part of an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also recalls that in certain circumstances, it may strike out an application or part thereof under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ([GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).

The Court has established in a number of cases, including those brought against Malta, its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Kudła v. Poland [GC], no. 30210/96, § 131, ECHR 2000 XI; McFarlane v. Ireland [GC], no. 31333/06, § 156, ECHR 2010 ...; Zarb v. Malta, no. 16631/04, 4 July 2006).

Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)).

In light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).

Accordingly, it should be struck out of the list.

B.  Article 3

The applicant also complained that he had suffered a violation of Article 3 because the criminal proceedings against him had been frivolous and simply aimed to degrade him in the eyes of the public.

The Court reiterates that 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 (see Gatt v. Malta, no. 28221/08, § 29, ECHR 2010). The Court observes that, even assuming that the applicant’s allegation was substantiated, and acknowledging that the proceedings - also in view of their length - may have been a source of stress and anxiety to the applicant, the circumstances 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.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention in respect of the length of proceedings complaint and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Fatoş Aracı Päivi Hirvelä
Deputy Registrar President