BORG v. MALTA
Inadmissible
Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani
1. The applicant, Mr Darryl Luke Borg, is a Maltese national who was born in 1986 and lives in Birkirkara. He was represented before the Court by Dr D. Camilleri and Dr J. Gatt, lawyers practising in Valletta. 3. The applicant suffered from Attention-Deficit Hyperactivity Disorder (hereinafter referred to as “ADHD”), and was the subject of a treatment order. In view of the treatment order, he was being kept at Mount Carmel Hospital (the State mental health hospital). 4. On 4 August 2013 a shop in Birkirkara, Malta, was burgled. 5. On 6 August 2013 the applicant was arrested by the police on suspicion of committing the burglary in question. The applicant was questioned at police headquarters and detained overnight. 6. On 7 August 2013, the applicant was arraigned before the Court of Magistrates (as a Court of Criminal Inquiry) charged with aggravated theft and other related offences. During the arraignment procedure the applicant requested that he be released on bail, but this was refused. Since the applicant was the subject of a treatment order, the court ordered that he be kept under arrest at the Forensic Section of Mount Carmel Hospital. However, the applicant was kept under arrest at the Corradino Correctional Facility rather than the hospital. 7. On 9 August 2013, the applicant’s lawyers became aware that on 8 August a certain R.G. had admitted committing the burglary in Birkirkara (of which the applicant had been accused), and that that person had, on the 9 August, confirmed his admission before the Court of Magistrates. On the same day, the applicant applied to the Court of Magistrates to be released on bail. 8. Later on 9 August 2013, the police inspector who had arrested the applicant was informed of R.G.’s arrest for the same incident the applicant had been accused of, and that R.G. had admitted to committing the crime. The inspector communicated later that day with the Attorney General (hereinafter referred to as “the AG”), who directed him to submit an urgent application to the Court of Magistrates for the applicant’s release. 9. At 6.00 p.m. that day, in the light of the applicant’s and the police’s applications for his release on bail, the Court of Magistrates ordered the applicant’s conditional release against a personal guarantee of 7,000 euros (EUR). He was forbidden to leave the country, approach witnesses or commit any other crimes. He was also obliged to sign in at the police station every day and a curfew was imposed from 10 p.m. to 8 a.m. 10. On 12 August 2013, the police withdrew the charges against the applicant. According to the applicant, he lost his right to the treatment order at Mount Carmel Hospital as a result of the arrest and arraignment. 11. On 14 August 2013, the applicant filed proceedings before the Civil Court (First Hall) in its constitutional jurisdiction. He argued that he had been arraigned without there having been a reasonable suspicion against him. Moreover, on the basis of that arraignment he had been denied release on bail. The applicant further submitted that the Commissioner of Police, despite realising that the applicant had been detained for no reason (because R.G. had admitted to committing the crime the applicant had been accused of), had failed to withdraw immediately the accusations against the applicant. In the applicant’s view, all those facts, either taken together or separately, had resulted in an infringement of his right to liberty under the Convention and the Constitution. 12. On 27 June 2014, the Civil Court (First Hall) in its constitutional jurisdiction found that the applicant had not suffered any violation of his rights. The costs of the proceedings were to be paid by the applicant. 13. The court held that it would not substitute its own discretion for that of the police. Its role was to analyse whether the police could have had a reasonable suspicion that the applicant had committed the crime, in the light of the evidence they had had before them at the time they had made the decision to arrest and eventually arraign the applicant. It noted firstly that when the applicant had been arraigned he had failed to contest the validity of his arrest. In determining whether the police could have had a sufficiently reasonable suspicion, the court considered factors, including, but not limited to: the fact that the police had received a tip-off/confidential information that the applicant had committed the crime; CCTV footage of the shop that had been held-up and CCTV footage of some of the neighbours of the shop. According to the court, in the light of other information the police had had in its possession, it had been reasonable for them to conclude that the person seen in the footage was the applicant, especially given the similar build and hair style. Indeed, once the police had seen the applicant in person they had confirmed that he looked like the person in the CCTV footage. Moreover, the court noted that, according to the police, the applicant’s mother had failed to confirm that her son had been at home at 9 p.m. (the time of the commission of the offence), leading the chief investigator to believe that he had no alibi for the time of the crime. Also, the police had found out that on the weekend where the burglary occurred the applicant had been on leave from the hospital. In addition, the applicant’s past had been taken into account, including: the fact that the applicant was known to the police as a person taking drugs; that he had ongoing proceedings against him for theft with aggravated assault allegedly committed in March 2013; and that he had previously been found guilty of crimes related to theft and drug abuse. Furthermore, the police had discovered that on the day of the hold-up the applicant had argued with his mother about money and drugs-related issues. Taking all those factors into account, the Civil Court (First Hall) in its constitutional jurisdiction confirmed the existence of a reasonable suspicion and thus a justification for the arrest. 14. It also concluded that the Court of Magistrates’ refusal to grant the applicant release on bail had not been unreasonable. The Court of Magistrates had considered the applicant’s regular visits to Mount Carmel Hospital; his past involvement in crimes involving violence; and factors associated with the risk and gravity of the crime at issue. 15. With regard to the applicant’s complaint that the criminal proceedings against him had not been withdrawn immediately upon R.G.’s arrest and admission to the crime, the court noted that the only person who could have shed light on what had happened was the inspector, but he had not been produced as a witness. Nevertheless, based on the evidence before it, the court observed that as soon as the inspector who had carried out the applicant’s arrest had found out that another person (R.G.) had been arrested for the same crime, he had requested direction from the AG. The inspector had then proceeded to submit an urgent application to the Court of Magistrates for the applicant’s release. The first time a third person had come into the scene had been on 9 August 2013, when R.G. had been arraigned. The applicant had been released from detention later the same day. In the light of those facts the court concluded that there had been no failings by the police. It noted that Article 5 concerned protection from arbitrary arrest or detention and that the applicant had been released on 9 August 2013. The fact that the accusations against the applicant had only formally been withdrawn on 12 August 2013 did not raise any issue under Article 5 of the Convention or Article 34 of the Constitution. 16. On 11 July 2014, the applicant lodged an appeal with the Constitutional Court. He reiterated his claims and argued, inter alia, that there had been no reason for the Court of Magistrates to fear that he would not attend court proceedings, or that he would in any way influence the proceedings against him because he had been undergoing a treatment order at Mount Carmel Hospital. The applicant also stated that the police had found out about R.G.’s involvement in the hold-up on 8 August 2013 but had waited until 9 August 2013 (when R.G. had been arraigned before the Court of Magistrates and had pleaded guilty to the charges) to take action towards remedying the applicant’s situation. He argued that the police were obliged to remedy a situation of unlawful detention as soon as they became aware of it, as was also contemplated under Article 137 of the Criminal Code. He complained that as a result of their delay he had spent an extra day in detention and had later been subject to conditional release. 17. The Constitutional Court upheld his claims in part. It found a violation of the applicant’s rights as protected under Article 5 § 1 (c) of the Convention and Article 34(1)(f) of the Constitution for the limitation of liberty the applicant had suffered between 9 August and 12 August 2013, but rejected his other complaints. It awarded him EUR 150 as compensation for non-pecuniary damage. 18. The Constitutional Court confirmed the first-instance court’s finding in respect of the existence of a reasonable suspicion justifying arrest which had persisted until the applicant’s arraignment before the Court of Magistrates. The applicant had thus not suffered a violation of his rights protected by Article 5 § 1 (c) of the Convention during that period. 19. The Constitutional Court considered that until 9 August 2013 the applicant’s situation had remained the same as on 7 August 2013. However, it had changed on 9 August 2013, when a third party had been arraigned before the Court of Magistrates for the same crime. The Constitutional Court observed that as soon as the inspector responsible for the applicant’s arrest had been informed that another person had been arrested for the same offence the inspector had taken action. On the same day, as requested by both the police and the applicant himself, the Court of Magistrates had ordered the applicant’s conditional release. The applicant had been released later that day, against a personal guarantee. The Constitutional Court found that the amount of time that had passed between the third party being arrested and the applicant’s release had been reasonable. Therefore, the applicant’s detention until his release on 9 August 2013 had not been arbitrary and had not violated his rights protected under Article 5 § 1 (c). 20. According to the Constitutional Court, the same could not be said of the period between 9 and 12 August 2013, during which the prosecution had no longer held a reasonable suspicion against the applicant. At that point, the restriction of liberty had, according to the Constitutional Court, no longer been justified under Article 5 § 1 (c) of the Convention. 21. In awarding compensation, the Constitutional Court considered that the applicant had contributed to the violation himself by only requesting conditional release on 9 August 2013, rather than unconditional release. The court ordered the applicant to pay three-quarters of the costs of the proceedings before the first-instance court and the Constitutional Court and the Commissioner of Police to pay one-quarter.