CASE OF STEPHENS v. MALTA (No. 1)
Violation of Art. 5-1;No violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - award
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
6. The applicant was born in 1963 and prior to the events in question he had been living in Alicante. He is currently serving a prison sentence in Malta. 7. On 5 August 2004, the applicant was arrested and detained in Spain following a request for his extradition (quoting the Council of Europe’s European Convention on Extradition) by the Maltese authorities, pursuant to an arrest warrant issued by the Court of Magistrates as a Court of Criminal Inquiry. 8. The arrest warrant had been issued on the basis of an allegation that the applicant had in Spain conspired with another person or persons in Spain to transport drugs to Malta. 9. While detained in Spain, the applicant, through his legal counsel, lodged proceedings in Malta contesting the legality of the arrest warrant. 10. On 12 October 2004, while he was in Spain, the applicant, through his legal counsel, requested the Court of Magistrates to re-examine the lawfulness of his arrest on the ground that it had not been competent to issue the warrant and that Malta did not have jurisdiction to try the applicant. 11. On 28 October 2004 the Court of Magistrates rejected both claims. It held that the facts which formed the basis of the charges against the applicant amounted to a crime falling under the Maltese authorities’ jurisdiction and that in the referral stage (“rinviju”), it had been competent to issue the warrant. 12. On 29 October 2004 the applicant complained under Article 5 §§ 1 and 4 of the Convention. He maintained that his arrest in Spain had occurred consequent to an arrest warrant which was unlawful on the grounds, first, that the Maltese Courts did not have jurisdiction on the facts as alleged. According to section 5 of the Maltese Criminal Code (hereinafter “CC”), the Maltese courts had jurisdiction over foreigners acting outside Maltese territory only in cases specifically provided for in law and this could not be extended by means of interpretation. There was no specific law and none of the legal provisions cited in the arrest warrant (section 22 (1) (f) of the Dangerous Drugs Ordinance and the 120 A (1) (f) of the Medical and Kindred Professions Ordinance) referred to the alleged facts. Secondly, the applicant claimed that the warrant had been issued by an authority which was not competent to issue it. Moreover, he complained that the Court of Magistrates which had been requested to examine speedily the lawfulness of his arrest did not satisfy the requirements of Article 5 § 4 of the Convention in so far as, according to section 409A of the CC (see paragraph 35 below), only the prosecution had a right of appeal, not the accused. He requested the court to uphold the alleged violations, revoke the arrest warrant and the consequential request for extradition, and to grant him compensation. 13. On 12 November 2004 the Civil Court partly upheld the applicant’s claims. It held that the arrest warrant of 5 February 2004 should be rescinded as the court issuing it had acted ultra vires. Indeed, the Court of Criminal Inquiry in its referral stage had no competence to issue the arrest warrant, even more so since the issuing of such warrant had not been requested by the Attorney General and such action did not fall within the ambit of Article 405 of the CC regarding the examination of witnesses; therefore the applicant’s arrest was devoid of any legal basis and contrary to Article 5 § 1 and the applicant should accordingly be released. Moreover, it held that the Court of Magistrates when examining the lawfulness of the arrest warrant did not comply with the requirements of Article 5 § 4 in so far as it granted the Attorney General (hereinafter “AG”) an “appeal” and no equivalent remedy to the applicant. The Civil Court granted the applicant compensation amounting to 250 Maltese Liri (MTL – approximately 600 euros (EUR)). 14. However, it held that according to the CC the Maltese courts had jurisdiction over any individual who committed a crime expressly stated in law even if such crime had been committed outside Malta. In the present case there was no doubt that the relevant laws, namely section 22 (1), (e) and (f) of the Dangerous Drugs Ordinance and section 120 A (1), (e) and (f) of the Medical and Kindred Professions Ordinance (see paragraphs 2930 below), which were similarly worded, covered crimes considered as such in Malta, notwithstanding that they had occurred outside Malta. While subsection (e) covered only persons who were Maltese citizens or residents, subsection (f) covered any person in Malta or outside the territory of Malta, and was not a follow-up to the previous subsection; therefore it did not carry the same limitations. Had the legislator wanted to limit subsection (f) he would have done so explicitly but no such qualification had been made. Further, nothing else provided reason to believe that subsection (f) had to be read as a continuation of subsection (e); indeed, the use of the word “or” suggested that the contrary interpretation applied. Moreover, since subsection (f) particularly contemplated crimes against the Maltese State and which were to the detriment of Maltese society, it was plausible to infer that there was no qualification to the subsection. 15. On 12 November 2004 the applicant appealed requesting that his arrest be declared unlawful on the additional ground that Malta lacked jurisdiction to try a British national, who was not a permanent resident in Malta, for acts committed outside Malta and that the alleged conspiracy conferred jurisdiction solely on those who had acted on or from Maltese soil. Moreover, he complained that the sum granted by way of compensation was too low in view of the fact that he had been under arrest since August. 16. According to the Government, on the same day Interpol Malta informed Interpol Spain by e-mail that the warrant had been declared unlawful. However, in line with the Government’s interpretation, Interpol Spain was also informed that the judgment was not final and had no effect until the appeal, yet to be lodged, had been decided. 17. In the meantime the AG lodged a cross-appeal. 18. It appears that the applicant’s legal counsel had informed the Spanish authorities of the judgment in favour of the applicant and had requested the applicant’s release on this basis. According to the Government, on 16 November 2004 a Spanish court decided that the applicant’s release was a matter to be decided on the basis of Spanish law without any reference to Maltese law. The applicant was not released. 19. Consequently, pending the main constitutional proceedings, on 16 November 2004, the applicant filed another application with the Constitutional Court requesting the execution of his release according to the judgment of 12 November 2004. He claimed that according to Maltese law, namely section 267 of the Code of Organisation and Civil Procedure (hereinafter “COCP”), a judgment declaring an arrest unlawful was immediately enforceable, notwithstanding any pending appeal. 20. On 17 November 2004 the AG filed a reply making reference to Article 22 of the European Convention on Extradition (hereinafter “ECE”), submitting, inter alia, that section 267 of the COCP was not applicable to situations such as the present where a person was detained in a foreign jurisdiction under the law of that jurisdiction. Moreover, although the applicant had so requested, the judgment of 12 November 2004 had not ordered the cancellation of the extradition request. 21. On 22 November 2004 the applicant limited his ancillary claim lodged on 16 November 2004 to the applicability of section 267 of the COCP, thus de facto withdrawing his request for release under these proceedings in favour of a more generic request on the applicability of the law. The Constitutional Court upheld the applicant’s request stating that the judgment at issue was indeed provisionally enforceable in terms of section 267 (b) of the COCP in so far as it provided remedies against unlawful arrest. 22. On 23 November 2004 the Constitutional Court, dealing with the main proceedings, delivered judgment on the applicant’s appeal and the AG’s cross-appeal. It revoked the first judgment in so far as it had found inter alia a violation of Article 5 § 4, and in so far as it had ordered the applicant’s release. It ruled that the arrest warrant was null and void, but only on the ground that the Court of Magistrates in the referral stage (“rinviju”) had not been competent to issue the warrant and that consequently the arrest was unlawful and in violation of Article 5 § 1. However,Malta, his release could not be ordered by the court. Furthermore, in its view, the arrest warrant had been validly grounded in law. Notwithstanding the general provisions of the CC, particularly section 48 A, which might have provided otherwise, section 22 (1), (e) and (f) of the Dangerous Drugs Ordinance and section 120 A (1), (e) and (f) of the Medical and Kindred Professions Ordinance prevailed, according to section 5 of the CC, given that they were special laws. Nevertheless, the Constitutional Court could not usurp the function of the Criminal Court, which was the only court competent to decide on the matter of jurisdiction. Having regard to the fact that the unlawfulness was solely due to a procedural defect, it found the compensation granted by the first court to be adequate and confirmed the sum. It further held that the parties were to bear their own costs and advised that a new warrant under section 355 V of the CC could be issued and would be perfectly legal. 23. On 22 November 2004 the applicant was granted bail by the Spanish authorities with the obligation to report daily to a police station. His passport was impounded. 24. On 1 December 2004 the applicant was re-arrested by the Spanish authorities on the basis of a new request by the Maltese authorities, but as a continuation of the previous extradition proceedings. 25. On 28 March 2005, the Audiencia Nacional in Spain confirmed the applicant’s extradition to Malta. On 9 September 2005 the applicant was extradited to Malta to stand trial. 26. By a decision of the Court of Magistrates of 23 February 2006, and by the judgment of the Criminal Court of 18 July 2007 confirmed by the Criminal Court of Appeal judgment of 18 January 2008, it was held that the Maltese Courts had the necessary jurisdiction over the facts of which the applicant was accused. The latter judgment found the applicant guilty of the said charges. The applicant has been in prison ever since. 27. On 9 August 2006 the applicant, who at the time was under house arrest in Malta, also introduced another application with the Court with further complaints regarding later stages of his proceedings in Malta (application no. 33740/06). 28. Section 5 of the Maltese Criminal Code, in so far as relevant reads as follows: “(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.” 29. Section 48 (1) of the Maltese Criminal Code, reads as follows: “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.” 30. Section 22 of the Dangerous Drugs Ordinance, Chapter 101 of the Laws of Malta, in so far as relevant, reads as follows: “(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.” 31. This same wording is reproduced in section 120 A (1), (e) and (f) of the Medical and Kindred Professions Ordinance, Chapter 31 of the Laws of Malta, in defining the offences related to psychotropic drugs. 32. As regards practice, it appears that the Maltese courts have regularly convicted persons (particularly drug couriers) of the crime of conspiracy where the offence is alleged to have taken place outside Malta (see, for example, The Republic of Malta v. Gregory Robert Eyre, 4 October 2004 and The Republic of Malta v. Winnie Wanjiku Kanmaz, 5 October 2004). 33. The Council of Europe’s European Convention on Extradition (“ECE”) (Paris, 1957) which came into force in respect of Malta ninety days after its ratification on 13 July 1979, requires that a request made by a requesting State shall be supported by the original or a copy of the warrant of arrest issued in accordance with the procedure laid down in the law of the requesting Party. Except where the ECE otherwise provides, the procedure with regard to extradition and provisional arrest shall be governed solely by the law of the requested Party (extraditing State). Articles 12 and 22 of the said Convention, in so far as relevant, read as follows: “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.” 34. The European Union (“EU”) Member States now make use of a European arrest warrant (“EAW”), which discontinues the use of the extradition procedure. The new procedure takes the form of a judicial decision issued by a EU Member State with a view to the arrest and surrender by another Member State of a person being sought in connection with a criminal prosecution or a custodial sentence. The European Union scheme makes procedures faster and simpler without requiring any political involvement. The EU Member States were required to introduce legislation to bring the EAW into force by 1 January 2004. However, Malta having joined the European Union at a later date, this legislation came into force there on 7 June 2004 by virtue of the Extradition (Designated Foreign Countries) Order, 2004. 3. As regards the remedies against unlawful detention 35. Section 409A of the Maltese Criminal Code regarding an application by a person in custody alleging unlawful detention, reads as follows: “ (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.” 36. Section 267 of the Code of Organisation and Civil Procedure, in so far as relevant reads as follows: “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 37. The European Convention Act, in so far as relevant, reads as follows: Article 3 “(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.” Article 4 “(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.