SABEUR BEN ALI proti Maltě

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35892/97

by Ben Nasr SABEUR BEN ALI

against Malta

The European Court of Human Rights (Second Section) sitting on 6 July 1999 as a Chamber composed of

Mr C. Rozakis, President,

Mr M. Fischbach,

Mr B. Conforti,

Mr G. Bonello,

Mrs V. Strážnická,

Mr P. Lorenzen,

Mr E. Levits, Judges,

with Mr V. Berger, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 21 February 1997 by Ben Nasr Sabeur Ben Ali against Malta and registered on 2 May 1997 under file no. 35892/97;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 31 December 1997 and the observations in reply submitted by the applicant on 28 February 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Tunisian national, born in 1976 and living in Sousse, Tunisia. He is represented before the Court by Mr. J. Brincat, a lawyer practising in Marsa, Malta.

The facts of the case, as submitted by the parties, may be summarised as follows.

A. Particular circumstances of the case

On 17 March 1995 the applicant was arrested in Malta for drug-related offences. On 19 March 1995 he was brought before the Court of Magistrates, composed by a single magistrate, to be arraigned. He was charged with possession of drugs that were not intended for personal use, importation of drugs, conspiracy to commit drug-related offences and various breaches of the customs legislation. In accordance with section 27 of the Dangerous Drugs Ordinance, the applicant was remitted to custody pending the conclusion of the criminal inquiry.

On conclusion of the inquiry on 4 April 1995, the applicant was commited for trial. On 29 July 1996 he applied to the Court of Magistrates for provisional release relying on the fact that “he ha(d) been under arrest for a considerable time” and that “he (was) in a position to give the guarantees required to appear for any part of the proceedings and the trial, as the Court (might) order”. The application was communicated to the Attorney-General who was given twenty-four hours to reply. After the observations of the Attorney-General had been obtained, a judge heard the parties on 31 July 1996. On 1 August 1996 the judge rejected the application because he was not satisfied that, if the applicant was released, there would be no interference with the due administration of justice.

The trial commenced on 4 February 1997. On 5 February 1997 the applicant was acquitted of all charges and was released from custody.

B. Relevant domestic law and practice

I. Section 34 § 3 of the Constitution of Malta provides the following:

“Any person who is arrested or detained -

(a) for the purpose of bringing him before a Court in execution of the order of a Court; or

(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence,

and who is not released, shall be brought not later than forty-eight hours before a Court, and if any person arrested or detained in such a case as mentioned in paragraph (b) of this subsection is not tried within a reasonable time, then, without prejudice to any further proceedings which may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.”

The Criminal Code provides the following regarding arrest and detention on remand:

Section 353

“1. Every officer of the Executive Police below the rank of inspector shall, on securing the person arrested, forthwith report the arrest to an officer not below the rank of inspector who, if he finds sufficient grounds for the arrest, shall order the person arrested to be brought before the Court of Judicial Police; otherwise he shall release him.

2. Where an order is given for the person arrested to be brought before the Court of Judicial Police, such order shall be carried into effect without any undue delay and shall in no case be deferred beyond forty-eight hours.”

Section 575

“2. The demand for bail shall be made by an application, a copy whereof shall be communicated to the Attorney General on the same day, whenever it is made by

...

(c) persons accused of any crime punishable with more than three years imprisonment ...

3. The Attorney General may, within the next working day, by a note, oppose the application, stating the reasons for his opposition.”

Section 582 § 1

“The Court may not ex officio grant bail, unless it is applied for by the person charged or accused.”

In its judgment of 8 January 1991 in the Nicholas Ellul case, the Constitutional Court of Malta upheld a decision taken by the Civil Court, in the exercise of its constitutional jurisdiction, on 31 December 1990 to the effect that Article 5 § 3 of the Convention did not impose any obligation on the magistrate before whom an arrested person appeared to examine whether that person’s arrest had been made on a reasonable suspicion or not. Moreover, according to the judgment of the Civil Court, as upheld by the Constitutional Court, Article 5 § 3 of the Convention did not impose on the prosecution any duty, on presenting the arrested person, to bring any evidence that the police had a reasonable suspicion at the time of the arrest.

In its judgment of 13 June 1994 in the Aquilina case, the Constiutional Court followed the same approach.

II. Section 27 of the Dangerous Drugs Ordinance (Chapter 101 of the Laws of Malta) provides as follows:

“Notwithstanding the provisions of the Criminal Code, and saving the extensions by the President of the term of the inquiry as provided in subsection (1) of section 401 of that Code, where the Attorney General has directed that a person charged with selling or dealing in a drug against this Ordinance or charged with promoting, constituting, organising or financing a conspiracy under paragraph (f) of subsection (1) of section 22 or with the offence mentioned in subsection (1C) of the said section 22 is to be tried in the Criminal Court, such person shall be arraigned under arrest and the Court of Judicial Police as a Court of Criminal Inquiry shall conclude the inquiry within the term of twenty days from the arraignment, and until the expiration of that term or, if the inquiry is concluded at an earlier date, until such day, the person accused shall not be granted temporary release from custody, but at the end of those twenty days or such earlier date as aforesaid, the Court may grant temporary release from custody in accordance with the provisions of that Code.

Provided that if the term of the inquiry is held in abeyance for the reason specified in paragraph (c) of subsection (1) of section 402 of the Criminal Code, the Court may nonetheless grant temporary release from custody after the lapse of twenty days from the arraignment.”

On 7 March 1999 Godfrey Ellul was arrested for drug-related offences. He applied for release relying on Article 5 § 3 of the Convention and section 137 of the Criminal Code and claiming that section 27 of the Dangerous Drugs Ordinance was in violation of the Convention. The Court of Magistrates refused to order his release.

He subsequently lodged a constitutional application in the First Hall of the Civil Court. On 7 May 1999 the Civil Court, relying on the Aquilina v. Malta judgment of 29 April 1999 of the European Court of Human Rights, found section 27 of the ordinance to be in violation of Article 5 § 3 of the Convention. However, it did not order Godfrey Ellul’s release. Godfrey Ellul and the Attorney General appealed to the Constitutional Court. On 21 May 1999 the Constitutional Court decided to adjourn the examination of the appeal until 24 May 1999. An oral hearing was held and judgment has been reserved.

III. Section 137 of the Criminal Code provides as follows:

“Any Magistrate who, in a matter with his powers, fails or refuses to attend to a lawful complaint touching an unlawful detention, and any officer of the Executive Police, who, on a similar complaint made to him, fails to prove that he reported the same to his superior authorities within twenty-four hours, shall, on conviction, be liable to imprisonment for a term from one to six months.”

This provision has been relied on to attempt to obtain release from allegedly unlawful custody in the following cases:

On 13 April 1983 the police arrested Anthony Price for a breach of the Immigration Act. During his detention he became suspect of a serious offence concerning the public security of Malta. On 17 June 1983 the applicant applied to the Court of Magistrates requesting that he should be either charged or released. On 20 June 1983 the Court of Magistrates considered that it had the power under section 135 (currently section 137) of the Criminal Code to attend to a lawful complaint touching on unlawful detention. It also found that the police had not brought Price before the Court of Magistrates within 48 hours as required by section 365 (currently section 353) of the Criminal Code. As a result, the court ordered Price’s release.

On 13 June 1990 the First Hall of the Civil Court ordered Christopher Cremona to be detained for twenty-four hours for contempt of court. The detainee appealed under section 1003 of the Code of Organisation and Civil Procedure. The Attorney-General, with reference to Cremona having invoked section 137 of the Criminal Code, requested the Court of Magistrates to order the Acting Registrar of the Court and the Commissioner of Police to bring Cremona before the Court and order either of them to set him free at once. Cremona’s appeal had suspensive effect on the execution of the judgment and, as a result, his continued detention was illegal. The Court of Magistrates acceded to the Attorney-General’s request.

Ibrahim Hafez Ibrahim Ed Degwej later christened Joseph Leopold invoked section 137 of the Criminal Code to challenge his prolonged and indefinite detention further to a removal order. He claimed that his detention, which had started in November 1983, had been rendered illegal because of its length and indefinite duration. On 4 July 1995 the Court of Magistrates ordered that the Attorney-General be notified and, having heard his views, still on 4 July 1995, decided to reject the application.

On 5 October 1994 the Court of Magistrates rejected an application for release by Emanuela Brincat. It observed the following: “As results from the records several applications have been filed, before this Court and before the Criminal Court, so that the person charged may be released, which applications have always been dealt with expeditiously, which fact makes it manifest in the most glaring manner how superfluous and incomprehensible the first paragraph of the present application is, where it refers to Article 137 of the Criminal Code.”

IV. Section 4 subsection (3) of the Constitution provides as follows:

“If in any proceedings in any court other than the Civil Court, First Hall, or the Constitutional Court any question arises as to the contravention of any of the provisions of the Human Rights and Fundamental Freedoms, that court shall refer the question to the Civil Court, First Hall, unless in its opinion the raising of the question is merely frivolous or vexatious; and that court shall give its decision on any question referred to it under this subsection and, subject to the provisions of subsection (4) of this section, the court in which the question arose shall dispose of the question in accordance with that decision.”

By virtue of the European Convention Act of 19 August 1987 the Convention became part of the law of Malta. Section 4 subsection (3) of the Act provides as follows:

“If in any proceedings in any court other than the Civil Court, First Hall, or the Constitutional Court any question arises as to the contravention of any of the provisions of the said sections 33 to 45 (inclusive), that court shall refer the question to the Civil Court, First Hall, unless in its opinion the raising of the question is merely frivolous or vexatious; and that court shall give its decision on any question referred to it under this subsection and, subject to the provisions of subsection (4) of this section, the court in which the question arose shall dispose of the question in accordance with that decision.”

Article 5 § 4 of the Convention has been invoked before or relied on by the domestic courts in the following cases:

Edwin Bartolo u Alfred Desira decided by the First Hall on the Civil Court on 11 April 1989 and by the Constitutional Court on 15 February 1991;

the above-mentioned Nicholas Ellul case;

Anthony Mallia decided by the First Hall of the Civil Court on 24 July 1991 and by the Constitutional Court on 9 March 1992;

George Mifsud decided by the First Hall of the Civil Court on 2 December 1994 and by the Constitutional Court on 11 April 1995;

Joseph Grech filed on 5 October 1995 and finally decided by the Constitutional Court on 21 February 1996;

Emmanuela Brincat decided by the First Hall of the Civil Court on 19 December 1994 and by the Constitutional Court on 21 February 1996;

Carmelo Sant decided by the First Hall of the Civil Court on 13 March 1997 and still pending before the Constitutional Court when the Government’s observations were submitted.

COMPLAINTS

1. The applicant complains under Article 5 § 3 of the Convention that the Court of Magistrates before which he appeared on 19 March 1995 did not have the power to examine whether he had been arrested on a reasonable suspicion. Under Maltese law Magistrates can only order release of an arrested person who appears before them further to an application for bail under Article 575 of the Criminal Code.

2. The applicant also complains under Article 5 § 3 of the Convention that, since he was facing charges for drug-related offences other than possession of drugs for personal use, he was precluded under Article 27 of the Dangerous Drugs Ordinance from requesting his release on bail before the lapse of twenty days from arraignment or the end of the criminal inquiry, whichever was the earliest.

3. Finally, the applicant complains under Article 5 § 4 of the Convention that there was no provision in Maltese law under which he could have had the lawfulness of his arrest and detention reviewed by a court.

PROCEDURE

The application was introduced on 21 February 1997 before the European Commission of Human Rights and registered on 2 May 1997.

On 22 October 1997 the Commission decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 31 December 1997. The applicant replied on 28 February 1998.

By virtue of Article 5 § 2 of Protocol No 11 to the Convention, which entered into force on 1 November 1998, the application shall henceforth be examined by the European Court of Human Rights.

On 20 March 1998 the applicant provided on his own initiative further observations. The Government replied on 14 June 1999.

THE LAW

1. The applicant complains under Article 5 § 3 of the Convention that the Court of Magistrates before which he appeared on 19 March 1995 did not have the power to examine whether he had been arrested on a reasonable suspicion. He also complains that under Maltese law Magistrates can only order release of an arrested person who appears before them further to an application for bail under Article 575 of the Criminal Code.

Article 5 § 3 provides as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Government submit that the applicant’s appearance before the Court of Magistrates on 19 March 1995 satisfied the requirements of Article 5 § 3 of the Convention. There is nothing precluding States Parties from requiring arrested persons to lodge a complaint concerning the lawfulness of their detention or a bail application in order to obtain the review envisaged under Article 5 § 3. Moreover, the Government submit that the complaint has been lodged out of time, since the six-month time-limit should be calculated from the date of the applicant’s first appearance before the Court of Magistrates.

The applicant argues that his appearance before the Court of Magistrates on 19 March 1995 could not satisfy Article 5 § 3 of the Convention because of the limitations that national law imposes on the Court of Magistrates’ competence. Moreover, he considers that the six-month time-limit should be calculated from the date of his release from custody after his acquittal.

The Court notes that the applicant in essence complains that he could not obtain a review of the reasonableness of the suspicion against him throughout the entire period of his detention on remand.

The Government have not raised any objection concerning the applicant’s failure to exhaust domestic remedies in respect of this complaint. In such circumstances, the Court would not raise the issue proprio motu (Nos. 22947/93 and 22948/93, Dec. 11.10.94, D.R. 79-A, p. 108). In any event, given the Constitutional Court’s judgments in the Nicholas Ellul and Aquilina cases, the applicant would have been probably dispensed from the obligation to exhaust domestic remedies in respect of this complaint (cf. Eur. Court HR, Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A no. 246-A, p. 23, § 50 and application No. 25644/94, T.W. v. Malta, Dec. 17.1.97, unpublished).

In the absence of effective domestic remedies, the Court considers that the six-month period in Article 35 § 1 of the Convention should be calculated from the end of the situation complained of (No. 10230/82, Dec. 11.5.83, D.R. 32, p. 303), i.e. from 5 February 1997 when the applicant stopped being in detention on remand. The application was lodged on 21 February 1997. It cannot, therefore, be rejected for failure to comply with Article 35 § 1 of the Convention.

In the light of the parties’ remaining observations, the Court considers that this part of the application raises serious questions of fact and law, which are of such a complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

2. The applicant also complains under Article 5 § 3 of the Convention that, since he was facing charges for drug-related offences other than possession of drugs for personal use, he was precluded under Article 27 of the Dangerous Drugs Ordinance from requesting his provisional release before the lapse of twenty days from arraignment or the end of the criminal inquiry, whichever was the earliest.

The Government argues that the applicant did not exhaust domestic remedies in respect of this complaint. The applicant could have contested the compatibility of Article 27 of the Ordinance with the Constitution or the Convention either before the Court of Magistrates or directly by lodging a constitutional application in the First Hall of the Civil Court.

The applicant argues that there was no effective remedy available to him. He refers in this connection to the developments in the Godfrey Ellul case.

The Court does not consider it necessary to address the issue of whether the applicant had at his disposal effective domestic remedies for the complaint under examination. The Court notes in this connection that the applicant complains of a situation that ended on 4 April 1995, the criminal inquiry having been concluded in less than twenty days from arraignment. The application was introduced on 21 February 1997. It follows, that even assuming that a constitutional application would not have provided the applicant with an effective remedy, the application was not lodged within the six-month period of Article 35 § 1 of the Convention.

This part of the application must, therefore, be rejected in accordance with Article 35 § 4 of the Convention.

3. The applicant complains under Article 5 § 4 of the Convention that there was no provision in Maltese law under which he could have had the lawfulness of his arrest and detention reviewed speedily by a court.

Article 5 § 4 of the Convention provides as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Government argue that the applicant has not exhausted domestic remedies in this respect either. The applicant could have lodged an application under section 137 of the Criminal Code challenging the lawfulness of his arrest or detention. They cite in this connection the Anthony Price, Christopher Cremona, Ibrahim Hafez Ibrahim Ed Degwej and Emanuela Brincat cases where this section has been invoked before domestic courts. Alternatively, the applicant could have complained of a breach of Article 5 § 4 of the Convention to the Court of Magistrates, which would have had to refer the matter to the First Hall of the Civil Court in its constitutional jurisdiction. The Court of Magistrates would have been bound by the decision of the Civil Court or of the Constitutional Court in the case of an appeal. The Government cite the Edwin Bartolo u Alfred Desira, Nicholas Ellul, Anthony Mallia, George Mifsud, Joseph Grech, Emanuela Brincat and Carmelo Sant cases where such a complaint was raised before the courts.

According to the Government, a distinction can be drawn between a request for provisional release, i.e. a request to be released on bail, and a habeas corpus application under section 137 of the Criminal Code. A request for provisional release on bail concedes the lawfulness of detention. A habeas corpus application is lodged when the detention is unlawful and aims at unconditional release. Nothing precludes a person who has been refused bail from contesting at any time the lawfulness of his or her detention by applying to the Court of Magistrates, which will order immediate release if satisfied that the detention is indeed unlawful.

The applicant argues that most of the cases cited by the Government as regards section 137 of the Criminal Code did not concern arrest and detention on suspicion of a criminal offence. These cases were, therefore, irrelevant to the complaint. The Anthony Price case belonged to a special category since it concerned the 48-hour time-limit beyond which nobody can be detained without being brought before a Court of Magistrates in Malta. In the Emanuela Brincat case the Court of Magistrates considered the reference to section 137 of the Criminal Code as incomprehensible and superfluous.

Furthermore, the applicant submits that proceedings for failure to respect Article 5 § 4 involving the Civil Court and possibly the Constitutional Court cannot by definition lead to a “speedy” decision as required by Article 5 § 4 of the Convention. In the applicant’s view, the only way in which one can effectively obtain release from detention pending trial is by applying for bail.

The Court considers that the question of the exhaustion of domestic remedies is linked to the substance of the applicant’s complaint under Article 5 § 4 of the Convention. It also notes that the applicant complains of a continuing violation, which lasted until the date of his release on 5 February 1997, and that the application was lodged less than six months later.

In the light of the parties’observations, the Court considers that this part of the application raises serious questions of fact and law, which are of such a complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE without prejudging the merits, the applicant’s complaints that, throughout the entire period of his detention on remand, he could not obtain a review of the reasonableness of the suspicion against him and could not have the lawfulness of his arrest and detention reviewed speedily by a court;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Christos Rozakis

Registrar President