CASE OF GAFÀ v. MALTA
Violation of Article 5 - Right to liberty and security (Article 5-3 - Conditional release;Length of pre-trial detention)
Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani
5. The applicant was born in 1972 and is currently detained at the Corradino Correctional Facility, Paola. 6. On 11 December 2010 the applicant was arrested by the police on suspicion of having murdered his former partner. 7. On 13 December 2010 he was charged before the Court of Magistrates, as a Court of Criminal Inquiry, with inter alia, wilful homicide. He was remanded in custody thereafter. 8. It appears from the acts of the proceedings that from the applicant’s arraignment until August 2012, the applicant filed ten requests for bail which were all rejected after the relevant submissions were made, including oral hearings. Apart from the hearings related to the bail applications and other specific requests, fourteen hearings were held where scores of witnesses gave evidence and another six hearings were held where nothing happened and the case was adjourned. 9. In the meantime on 10 April 2012 the applicant instituted constitutional redress proceedings before the Civil Court (First Hall) in its constitutional competence. He complained of a violation of Article 5 § 3 of the Convention in so far as he had been detained for more than fifteen months since his arrest. 10. By a judgment of 27 June 2012 the Civil Court (First Hall) rejected the applicant’s claims. By a judgment of 23 November 2012 the Constitutional Court rejected the applicant’s appeal and confirmed the appealed judgment. 11. After the applicant had been held in custody for the maximum period of detention allowed by law, he became entitled to bail in accordance with Article 575(6)(a)(iii) of the Criminal Code (see relevant domestic law). 12. Consequently, following his request of 17 August 2012, by a decree of 22 August 2012, the Court of Magistrates granted the applicant bail subject to the following conditions: that he appears for all the scheduled hearings in the criminal proceedings; that he does not go abroad or abscond; that he does not contact or approach, directly nor indirectly, witnesses for the prosecution; that he does not commit a crime of a voluntary nature while released on bail; that he present himself at the District Police Station every day between eight a.m. and eight p.m.; that he be home not later than ten p.m. and that he does not leave home before six a.m. of the following day; that he inform the Police of any change of address by not later than twelve hours of such a change; that he deposit by way of security the amount of 15,000 euros (EUR) in the court registry; and that he undertake a personal guarantee of EUR 25,000. In the event of any bail condition being breached, the entire amount of EUR 40,000 would be forfeited in favour of the State. 13. On 3 September 2012 the Attorney General appealed against the decision of 22 August 2012, as he considered the conditions too lenient and that they would not serve as a sufficient deterrent against absconding or interfering with the proper administration of justice. He requested the court to set a higher deposit reflecting the nature of the crimes with which the applicant was accused and to amend the conditions by disallowing the applicant to be in locality R. where the victim and her family resided. 14. On 6 September 2012 the applicant objected to the Attorney General’s appeal, noting that he had remained in detention precisely because he could not fulfil the conditions imposed. At the same time he filed an application requesting the court to reduce the amount to be deposited by him. He explained that since he had been detained for more than twenty months he was unemployed, and thus he could not pay the relevant amount. He submitted two documents showing that he received unemployment benefits in the sums of EUR 1,262.22 and EUR 1,573.34 in 2009 and 2010 respectively and offered to explain his financial situation ( if necessary with further documentary evidence) during an oral hearing. It appears from the acts of the proceedings that he then submitted tax assessment forms of the previous twelve years. 15. By a decision of 7 September 2012 the Criminal Court, having examined the documents submitted by the applicant, rejected the Attorney General’s request to increase the deposit but added the condition that the applicant could not be in the vicinity of locality R. It also rejected the applicant’s request considering that the Court of Magistrates had correctly applied its discretion. 16. On 9 October 2012 the applicant filed another application requesting the court to reduce the amount of the deposit. He complained that although he had been in detention for twenty-two months, and was entitled to bail, he had nevertheless remained in detention since he (and his family) could not afford to pay such an excessive amount by way of deposit. He further noted that the main witnesses had already been heard in the committal proceedings. 17. On 10 October 2012 the Attorney General objected to the applicant’s new request, noting that the applicant was not reliable, and that his inability to pay the deposit showed that he would be unable to pay the personal guarantee if he were to breach his conditions. Moreover, the family of the victim, particularly her daughter, lived in fear of the applicant. 18. By a decree of 18 October 2012, having seen the request and the reply submitted by the Attorney General, the court rejected the applicant’s request. 19. On 4 December 2012 the applicant filed another application requesting the court to reduce the amount that he had to deposit. He noted that he had remained in detention for three and half months since the decree granting him bail due to his inability to pay. The Attorney General objected in view of the seriousness of the crime. 20. On 7 December 2012 the court again rejected the applicant’s request; it noted that its previous decisions had determined the deposit in order to strike the requisite balance between, on the one hand, the seriousness of the crime and the potential punishment, and, on the other hand, the obligation of the accused to fulfil the imposed conditions. 21. On 29 January 2013 the applicant filed yet another application requesting that the amount of deposit be reduced. He noted that he had been in detention for another five months since the decree granting him bail, and yet he was still not in a position to benefit from such bail - to which he was entitled by law - since he could not pay the deposit imposed. The Attorney General objected considering that the amount imposed was adequate in view of the severity of the crime and the circumstances of the case. On 5 February 2013 the applicant filed a note reiterating his request. 22. By a decree of 5 February 2013 the court, having considered the parties submissions, as well as its decree of 7 December 2012, was of the view that it should not alter the considerations made in the latter decision. It, thus, rejected the applicant’s request. 23. On 22 July 2013 the applicant requested the court to accept his mother Ms J.G. (and other relatives) as surety in lieu of the deposit. He referred to a property the relatives had inherited which they were willing to put forward as a guarantee instead of the deposit. The Attorney General requested that the applicant submit relevant evidence of the inheritance and the value of the property and that the court hear relevant witnesses in this connection, before making his final submissions. He further highlighted that a public deed would be required for the purposes of the relevant hypothec. 24. On 30 July 2013 the applicant submitted all the relevant documents concerning the property at issue which was valued at EUR 95,000. 25. On 2 August 2013 the court accepted that the applicant’s mother stand as surety by means of a hypothec on the above-mentioned property which she owned together with other relatives. Such property was to serve as a guarantee for the applicant observing the conditions imposed; in the event of a breach of any of those conditions, the property would be forfeited in favour of the Government of Malta. 26. Subsequently on 6 August 2013 the applicant having signed a personal guarantee of EUR 25,000 and his mother having effected the relevant hypothec as guarantee, the applicant was released from custody after thirty-two months of pre-trial detention. 27. In the meantime the committal proceedings and hearing of witnesses continued throughout this time; further witnesses were heard during three hearings and another four hearings were adjourned. On 31 July 2013 the prosecuting authority had declared that it did not have further evidence to produce. 28. In the meantime on 6 February 2013 the applicant instituted a new set of constitutional redress proceedings, complaining of a violation of Article 5 § 3 of the Convention in connection with the “exorbitant sum” requested (in particular reference to the sum set as deposit) which did not allow him to effectively enjoy bail. 29. By a judgment of 3 July 2013 the Civil Court (First Hall) in its constitutional competence rejected the applicant’s claims. It held that when a court accepted that an applicant had to be granted bail, that court had to establish the proper conditions which the applicant had to satisfy to be released and yet appear for court proceedings. If the guarantees included the deposit of a sum of money, such pecuniary condition had to be considered by reference to the person of the accused and his means as well as his relation with the person who would act as his surety. The court referred to the Court’s judgment of Iwanczuk v. Poland (no. 25196/94, § 66, 15 November 2011) where it had been held that the accused whom the judicial authorities declared themselves prepared to release on bail must faithfully furnish sufficient information, that can be checked if need be, about the amount of bail to be fixed. The court noted that the applicant did not satisfy this obligation. It was his duty to provide the courts with information on his income, savings and list his assets. Nevertheless, the applicant had only provided copies of self-assessment forms for purposes of income tax for the years between 1998 and 2011. According to the court, if an applicant argued that the deposit was too high, he had to show the court what he could afford by providing a list of his assets and property, even if this meant that he had to conduct researches in the Public Registry, and provide the relevant documentation. In its view an applicant had to show not only that he did not have the necessary means to deposit the sum requested but also that he was in an objective impossibility of finding the necessary means. He further had to show that he was unable to find persons who offered to act as surety. It was only when all this was shown that an applicant would have satisfied his duty to furnish sufficient information, thus enabling the court to make an objective assessment. 30. In the court’s view, in the present case, bearing in mind the seriousness of the crime and the potential punishment, the applicant had not brought enough evidence before the courts of criminal justice to substantiate his claim that those courts had imposed excessive conditions (including that referring to the amount of deposit). It further noted that the Constitutional Court [in the first round of proceedings] had not been convinced that there would be no tampering with evidence. Indeed even though the collection of evidence had come to an end, one had to guarantee that the evidence remained intact and thus relevant guarantees were necessary. 31. The applicant appealed. 32. By a judgment of 31 January 2014, the Constitutional Court rejected the applicant’s appeal and confirmed the judgment of the first court. 33. The Constitutional Court referred to its judgment in the case The Police v. Austine Eze and Osita Anagboso Obi, of 25 October 2013, where it had held that there must be proportionality between the amount to be deposited by the applicant for his release on bail and his financial circumstances. The level of bail set out should not be too high and it should ensure the presence of the accused at the various stages of the criminal proceedings. It also made reference to the Court’s judgment in Mangouras v. Spain ([GC], no. 12050/04, § 79, ECHR 2010) as well as the Constitutional Court’s judgment Salvatore Gauci v. Attorney General, of 31 July 1998, where it had been held that in establishing the amount to be deposited as security, the court must also consider other circumstances such as the seriousness of the offence and the danger to society. 34. The Constitutional Court held that the onus of proving that the amount of deposit was too high for the applicant when considering his financial means lay with the applicant himself. An applicant must provide information to the court on his financial situation and on the real possibility of finding a surety able to guarantee the observance of the conditions imposed. In the present case, the Constitutional Court held that the latter option had not been contemplated by the applicant and it was only after various requests to have the amount reduced that he eventually proposed his mother to act as a surety. It noted that although the applicant’s mother did not own the tenement she had used for the purposes of the guarantee, it was already in her possession for a period of time before the last application for the reduction of the amount was filed. Thus, the applicant could not argue that he could not have taken this course of action before. Although the applicant relied on the Court’s judgment of Iwanczuk (cited above), where a violation had been found on the basis that it took four months for the Polish authorities to adjust the conditions for bail, the Constitutional Court held that (even if this were the case), the applicant – who was legally represented had not explored all avenues to satisfy the courts with an adequate guarantee for the observance of the conditions of bail. No explanation as to why he only obtained a guarantee in the form of a surety at a subsequent stage was provided by the applicant. 35. Noting that the applicant had stated that at times he worked as a bus driver and as a horse trainer, apart from other activities, the Constitutional Court distinguished the applicant’s case from that of a person who was living on relief payments. The fact that the applicant had at times worked and had a salary or wage made the need to provide information to the court on his means more relevant. 36. On the fixing of the amount of the deposit, the Constitutional Court referred to Article 576 of the Criminal Code (see relevant domestic law below) which provided the factors to be considered for this purpose. Under Maltese law these included the seriousness of the offence and the applicable punishment. The Constitutional Court considered that although the law also referred to the financial situation of the person accused, this factor was not to be taken in isolation – it was for the court fixing the amount of deposit to consider all the factors taken together and not separately. In the present case bearing in mind those factors, the amount of deposit of EUR 15,000 was justified especially since the law provided for the opportunity to provide a surety – a course of action subsequently undertaken by the applicant. 37. In the Constitutional Court’s view the criminal courts’ concern that the applicant did not give the necessary guarantees that there would not be any tampering with evidence, subsisted throughout the whole criminal proceedings. 38. By a decision of 7 April 2014 the applicant was found guilty of breaching his bail conditions and his bail was revoked. Further bail requests were lodged and rejected until 26 January 2015 when a bill of indictment was issued against the applicant. From August 2013 until his indictment some ten hearings were held where nothing happened and the case was adjourned. 39. On 16 June 2015 the Criminal Court was informed that a plea bargain had been concluded between the applicant and the prosecution. 40. On 20 July 2015, following the applicant’s admission to all the charges against him, the Criminal Court pronounced a guilty verdict and sentenced the applicant to thirty-five years imprisonment and to the payment of court experts’ fees.