CASE OF GATT v. MALTA
Violation of Art. 5-1;Remainder inadmissible;Just satisfaction reserved
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
5. The applicant was born in 1947 and lived in Senglea, Malta. 6. He is currently in detention. 7. The applicant was facing proceedings before the Magistrates’ Court, sitting as a court of criminal judicature, for drug trafficking. 8. On 13 August 2001 the applicant was granted bail under certain conditions, including a guarantee of approximately 23,300 euros (EUR). One of these conditions stipulated that the applicant could only leave his residence to accompany his son to and from school, and was therefore only authorised to go out, accompanied by his son, between 6 a.m. and 9 a.m. and between 3 p.m. and 6 p.m. On 14 August 2001 the applicant signed a declaration stating that he agreed to comply with the above-mentioned obligation and to pay the guarantee in the event that he breached any of the conditions. He further paid the sum of EUR 1,165 by way of deposit. 9. Following a complaint that the applicant had been seen in Valletta, on an unspecified date, 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 arrest and decreed that the EUR 1,165 deposit he had already paid as well as the EUR 23,300 guarantee were to be paid to the government. 10. 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 debt into imprisonment. As stipulated in Article 586 of the CC the length of the detention could not exceed more than one day per EUR 13 (see ‘Relevant domestic law’ below). 11. On 28 July 2006 the Criminal Court ordered the guaranteed sum 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), and the applicant was placed in detention. 12. 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 they 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 debt could be converted and it therefore gave rise to a degrading punishment in the applicant’s case. 13. 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 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 to fall within Article 3. 14. On 12 February 2008 the Constitutional Court rejected an appeal lodged by the applicant. It held, however, that the Civil Court had erred in considering his detention as falling within Article 5 § 1 (a), namely, detention following a conviction. His detention had its basis in Article 5 § 1 (b), namely, to secure the fulfilment of an obligation prescribed by law. It followed that, according to Strasbourg case-law, there should be a reasonable relationship of 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 (see Léger v. France, no. 19324/02, 11 April 2006, and Price v. the United Kingdom, no. 33394/96, ECHR 2001-VII), this was not so in the present case. 15. Article 579 of the CC, 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 sub-article (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 sub-article (2) shall be taken by the police and shall be decided by the court with urgency.” 16. Article 585 of the CC, 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.” 17. Article 586 of the CC, 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 euros and sixty-five cents (11.65) of that sum, whether such person is the person charged or accused or the surety.”