CASE OF STEPHENS v. MALTA (no. 2)
Preliminary objection partially rejected (non-exhaustion of domestic remedies);Preliminary objection partially joined to merits (victim);Preliminary objection partially allowed (victim);No violation of Art. 5-3;No violation of Art. 5-4
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
6. The applicant was born in 1963 and is currently serving a prison sentence in Malta. 7. On 30 November 2004, pursuant to an arrest warrant issued by the Maltese authorities on 23 November 2004, the applicant was arrested and detained in Spain on suspicion of having conspired in the traffic of cocaine, ecstasy and cannabis. 8. On 3 May 2005 the applicant, through his legal counsel, challenged the lawfulness of his arrest and detention in so far as the arrest warrant had not been issued in accordance with the European Arrest Warrant requirements (in force on 7 June 2004). 9. In a judgment of 16 August 2005, the Constitutional Court of Malta rejected the applicant’s claim as the extradition request had been made prior to the new arrest warrant procedure with the result that the previous law applied. 10. On 9 September 2005 the applicant was extradited to Malta to stand trial on charges of drug trafficking. 11. On 10 September 2005 the applicant was brought before the Court of Magistrates as a Court of Criminal Inquiry. He challenged the legality of the arrest warrant of 23 November 2004. He claimed that the prosecution had to satisfy the Court of Magistrates that the arrest had been lawful and that this could not be assumed, given in particular that the accused had not been personally heard. The applicant argued that the procedure followed by the prosecution, whereby it simply confirmed on oath the report containing the legal provisions on which the charges were based, did not satisfy the requirements of Article 5 § 3 of the Convention. He made reference in this connection to the European Court’s judgment in Kadem v. Malta, (no. 55263/00, 9 January 2003). 12. The applicant pleaded not guilty. He also pointed out that he was contesting the Maltese courts’ jurisdiction to try him, claiming that the facts he was accused of did not constitute an offence under the laws of Malta. 13. The prosecution submitted that the applicant had been brought to Malta following the issue of an arrest warrant by the duty magistrate. Upon the applicant’s arrival and within six hours of the arrest, the duty magistrate was informed of the arrest and confirmed its continuation. Within fifteen hours of the arrest, during which time he was interrogated, the applicant was arraigned before the court. The prosecution further submitted that the case which carried a maximum punishment of life imprisonment was based on the testimony of various civilian witnesses and corroborating evidence. 14. At the hearing the Court of Magistrates took account of the applicant’s not-guilty plea. The hearing minutes read as follows: “In regard to whether the accused is going to plead guilty or not guilty as charged the same accused would like to point out that first of all he is contesting the jurisdiction of the Maltese courts to try him and secondly that the facts do not constitute, in his regard, an offence under the laws of Malta and thirdly that he is not guilty of any fact alleged against him. To all intents and purposes of law, the Court [of Magistrates], having heard what has just been put down in the records of the proceedings, is considering the accused as pleading not guilty as charged.” The Court of Magistrates did not require the arresting officer to justify why the applicant had been arrested or why his detention was necessary. It declared, without entering a minute to that effect in the records, that the warrant had been issued by a magistrate and confirmed by another magistrate and both sets of proceedings had been held in camera and the arrest had been authorised. Moreover, the case had been examined by the Spanish courts in the context of their consideration of Malta’s request for the applicant’s extradition. In the minutes it further referred to the fact that the validity of the warrant as regards its procedural aspects was affirmed by the Constitutional Court in a further set of proceedings which took place while the applicant was still in Spain. Thus, the warrant was sufficient to enable the arrest to be considered lawful at that stage of the proceedings. Nothing had been brought to the attention of the court which enabled it to say that the person charged was under arrest without justification. 15. Since the applicant insisted that his arrest was unlawful and unjustified no request for bail was made and he was remanded in custody. His case file was transmitted to another magistrate sitting in the Court of Magistrates in order to proceed with the committal stage. 16. In the meantime, on 19 September 2005, the applicant applied for bail. 17. On 27 September 2005 the Court of Magistrates in the committal stage heard the parties. The applicant advanced once again his argument that the Maltese authorities lacked jurisdiction to try him. 18. On 29 September 2005 the Court of Magistrates rejected the application for bail, which had been lodged on 19 September 2005, on the grounds that there was a real danger that the applicant might abscond, leave the island or interfere or attempt to interfere with witnesses. It further held that it was not competent to give a ruling on the question of jurisdiction and decided that there were enough grounds to commit the applicant for trial. 19. On 3 October 2005 the applicant applied to the Civil Court (First Hall) in its constitutional jurisdiction, alleging that both at his first hearing and at the committal stage, Article 5 §§ 3 and 4 of the Convention had been violated. The Court of Magistrates had failed to assess the lawfulness of the arrest by refusing to decide on the defence’s objections, namely that the Maltese courts did not have jurisdiction to try the defendant and that the facts alleged against him did not constitute a criminal offence under Maltese law. The applicant therefore requested the Civil Court to declare that his arrest and continued detention were unlawful and to order his release and provide him with adequate redress. 20. In a judgment of 12 January 2006, the Civil Court rejected the applicant’s claim. It held that the Court of Magistrates as a Court of Criminal Inquiry was bound to examine solely the lawfulness of the arrest and, if necessary, to order release on bail according to Article 412B of the Criminal Code (see paragraph 41 below). The question of jurisdiction related to the merits of the case and therefore could be examined only by the Criminal Court. This was not in violation of the Convention. 21. The applicant appealed to the Constitutional Court. He reiterated his claims and emphasised that Article 412B of the Criminal Code was not an effective remedy as it provided only for provisional release under guarantee or against payment of bail and not unconditional release as required by Article 5 § 4 of the Convention. 22. The Constitutional Court heard submissions on 7 and 9 February 2006. 23. In a judgment of 14 February 2006, the Constitutional Court upheld the applicant’s appeal in part. It first held that at the hearing of 10 September 2005 the Court of Magistrates had satisfied its duty under Article 5 §§ 3 and 4 of the Convention as provided by Article 574A of the Criminal Code (see paragraph 40, in fine, below). In particular, it had heard the parties’ submissions regarding the lawfulness of record) and because it would have substantially amounted to a plea that the facts of the case did not constitute a crime. Thus, further evidence would have been necessary in order to decide the matter. 24. The Constitutional Court did, however, find a violation of Article 5 § 4 of the Convention in so far as on 29 September 2005 the Court of Magistrates at the committal stage (Article 401 (2) of the CC) had abstained from deciding the issue of jurisdiction, thus disregarding its duty to determine the lawfulness of the applicant’s detention under the Convention. Even though questions of jurisdiction would, in principle, be dealt with by the Criminal Court, in the applicant’s case this issue was interconnected with the factual requirements of the criminal offence. In the absence of solid factual grounds against the defendant, the Court of Magistrates could not commit him for trial. The Constitutional Court annulled the Court of Magistrates’ order of 29 September 2005 committing the applicant for trial as well as all subsequent acts. It remitted the case to the Court of Magistrates to be decided afresh after taking cognisance of the applicant’s plea of lack of jurisdiction. It awarded the applicant 400 Maltese Liras (MTL – approximately 960 euros (EUR)) for just satisfaction, and ordered the payment of the costs of the proceedings to be divided between the parties. 25. On 2 December 2005 the applicant applied for bail before the Criminal Court, the competent court at the time. On the same date the Attorney General sent the records of the proceedings back to the Court of Magistrates. Thus, on 6 December 2005 the Criminal Court refused to take cognisance of the request as it no longer had jurisdiction in the matter. 26. On 9 December 2005 the same application was filed with the Court of Magistrates. 27. On 14 December 2005 the Court of Magistrates refused to release the applicant, having regard to the nature and seriousness of the offence, the real danger of the accused absconding or leaving the island and obstructing or attempting to obstruct the course of justice. 28. On 14 February 2006 the President of Malta issued a warrant extending the legal time-limit for concluding the proceedings to 6 March 2006. 29. On 15 February 2006 the applicant, still under arrest, was brought before the Court of Magistrates. He alleged that the law imposed a peremptory time-limit of twenty days for the conclusion of the committal proceedings. In the applicant’s view, this time-limit could not be extended by the Constitutional Court, as had occurred in his case. Furthermore, the applicant challenged the magistrate sitting in his case on the ground that she had already sat in the hearings preceding the constitutional proceedings. He invoked the principles laid down by the Court in Ferrantelli and Santangelo v. Italy (see judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III). He also raised once again his plea based on the Maltese authorities’ lack of jurisdiction to try him. 30. On 23 February 2006 the Court of Magistrates considered that the twenty day time-limit had not been exceeded since the Constitutional Court had placed the applicant in a status quo ante. Moreover, the warrant of the President of Malta extending the term of the inquiry had been valid according to law. It rejected the challenge to the magistrate on the ground that that court had refrained from giving a definitive judgment on the merits of the case, thus satisfying the objective impartiality test. The Court of Magistrates further stated that the interpretation of Article 22(1) (f) of the Dangerous Drugs Ordinance extended the principle of territorial jurisdiction and that it therefore had jurisdiction to proceed against the applicant. It decided to commit the applicant for trial. 31. On 27 February 2006 the applicant filed an application with the Criminal Court, the competent court at the material time, to challenge the lawfulness of his detention according to Article 412 B of the Criminal Code. He requested it to order his release from custody. He also complained that the committing magistrate, who delivered the decision of 29 September 2005, had erred when she refrained from stepping down once she had been challenged. 32. On 3 March 2006 the Criminal Court dismissed the application as being unfounded for the purposes of Article 412 B. It held that even if the magistrate had erred, this did not render the detention unlawful. Moreover, the proceedings leading to the decision of 23 February 2006 appeared to have been properly initiated and conducted, as indicated by the Constitutional Court’s judgment of 14 February 2006, which upheld only the applicant’s complaint about the irregularity related to the refusal to consider the plea of jurisdiction. 33. On 13 March 2006 the applicant filed a new application with the Court of Magistrates, claiming that the Attorney General had exceeded the time-limit allowed for filing the bill of indictment. On an unspecified date the Magistrates’ Court rejected the claim. 34. On an unspecified date the Attorney General filed the bill of indictment. As a consequence, the Criminal Court became competent to take cognisance of any application for release. 35. On 4 April 2006 the applicant applied for bail, making reference to Labita v. Italy ([GC], no. 26772/95, ECHR 2000-IV). 36. On 7 April 2006 the applicant was granted bail against payment of a deposit of MTL 12,000 (approximately EUR 28,800). He was put under house arrest at his mother’s home. He was only allowed to go out for two hours in the morning to report to the police station. 37. On 2 December 2006, the Criminal Court had started examining the plea of lack of jurisdiction. The applicant was still under house arrest. 38. On an unspecified date the applicant made another request for his detention arrangements to be alleviated. On 5 February 2007 the Criminal Court rejected his request, emphasising that it could not be said that the applicant was under arrest but was simply confined and limited in the hours during which he could leave his house as a condition of his being granted provisional liberty. 39. By a judgment of the Criminal Court of 18 July 2007, confirmed by the Criminal Court of Appeal on 18 January 2008, the applicant was found guilty of the charges against him and sentenced to a term of imprisonment. 40. According to recent amendments to the Criminal Code adopted in 2002, a police inspector may no longer arrest a suspect under his own authority but has to apply to a magistrates’ chamber for an arrest warrant. Article 355V “Where there are lawful grounds for the arrest of a person, the police may request a warrant of arrest from a magistrate, unless in accordance with any provision of law the arrest in question may be made without a warrant.” 41. Following amendments adopted in 2002 and 2006, the Articles of the Criminal Code, in so far as relevant, read as follows: Article 401 (2) “(2) On the conclusion of the inquiry, the court shall decide whether there are or not sufficient grounds for committing the accused for trial on indictment.” Article 409A “(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 of 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 sub-article shall be filed together with the application by the Attorney General to the Criminal Court.” Article 412B “(1) Any person in custody for an offence of which he is charged or accused before the Court of Magistrates and who, at any stage other than that to which Article 574A applies, alleges that his continued detention is not in accordance with the law may at any time apply to the court demanding his release from custody. Any such application shall be appointed for hearing with urgency and together with the date of the hearing shall be served on the same day of the application on the Commissioner of Police or, as the case may be, on the Commissioner of Police and the Attorney General, who may file a reply thereto by not later than the day of the hearing. (2) The provisions of Article 574A(2) and (3) shall apply mutatis mutandis to an application under this article. (3) Where the application is filed in connection with proceedings pending before the Court of Magistrates as a court of criminal inquiry before a bill of indictment has been filed and the record of the inquiry is with the Attorney General in connection with any act of the proceedings, the application shall be filed in the Criminal Court and the aforegoing provisions of this Article shall apply mutatis mutandis thereto.” (4) The provisions of Article 409A(4) shall apply to a decision of the Court of Magistrates under this Article.” Article 574A “(1) When the person charged or accused who is in custody is first brought before the Court of Magistrates, whether as a court of criminal judicature or as a court of criminal inquiry, the Court shall have the charges read out to the person charged or accused and, after examining the person charged as provided in Article 392 as the proceedings may require, shall summarily hear the prosecuting or arraigning officer and any evidence produced by that officer on the reasons supporting the charges and on the reasons and circumstances, if any, militating against the release of the person charged or accused. (2) After hearing the prosecuting or arraigning police officer and any evidence produced as provided in sub-article (1) the court shall inform the person charged or accused that he may be temporarily released from custody on bail by the court under conditions to be determined by it and shall ask him what he has to say with respect to his arrest and his continued detention and with respect to the reasons and the circumstances militating in favour of his release. (3) Where any of the offences charged consists in any of the offences mentioned in Article 575(2) the court shall, after hearing the person charged or accused as provided in sub-article (2) of this article, ask the prosecuting or arraigning officer whether he has any submissions to make on the question of temporary release from custody on bail of the person charged or accused and the latter shall be allowed to respond. (5) At the end of submissions as provided in the preceding sub-articles of this Article the court shall review the circumstances militating for or against detention. (6) If the court finds that the continued detention of the person charged or accused is not founded on any provision of this Code or of any other law which authorises the arrest and detention of the person in custody it shall unconditionally release that person from custody. (7) If the court does not find cause to release unconditionally the person charged or accused ... it may nevertheless ... release that person from custody on bail subject to such conditions as it may deem appropriate. (8) If the court does not find cause to release unconditionally the person charged or accused and refuses to grant that person bail the court shall remand that person into custody ...” 42. 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) and Kadem v. Malta, (cited above, § 53), 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 cases the applicants had not had at their disposal, under domestic law, a remedy for challenging the lawfulness of their detention under Article 5 § 4.