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FOURTH
SECTION
CASE OF GATT v. MALTA
(Application
no. 28221/08)
JUDGMENT
(merits)
STRASBOURG
27 July
2010
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Gatt v. Malta,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 6 July 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28221/08) against Malta lodged
with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Maltese national, Mr Lawrence Gatt (“the applicant”),
on 10 June 2008.
- The
applicant was represented by Dr J. Herrera, a lawyer practising in
Valletta. The Maltese Government (“the Government”) were
represented by their Agent, Dr Silvio Camilleri, Attorney General.
- The
applicant alleged that the conversion into imprisonment of the
guarantee he had failed to pay when he had breached his bail
conditions was excessive and disproportionate.
- On
21 September 2009 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1947 and lived in Senglea, Malta.
- He
is currently in detention.
A. Background of the case
- The
applicant was facing proceedings before the Magistrates' Court,
sitting as a court of criminal judicature, for drug trafficking.
- On
13 August 2001 the applicant was granted bail under certain
conditions, including a personal guarantee of approximately 23,300
euros (“EUR”). One of these conditions required the
applicant to leave his residence only accompanied by his son, between
6 a.m. and 9 a.m. and 3 p.m. and 6.pm, in order to accompany his
son to and from school. On 14 August 2001 the applicant signed a
declaration stating that he agreed to comply with the above-mentioned
obligation and to pay the above-mentioned amount in the event that
any of the set conditions were breached. He further deposited the sum
of EUR 1,165.
- Following
a complaint that the applicant had been seen on an unspecified date
in Valletta 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 re-arrest and
decreed that the EUR 1,165 deposit as well as the EUR 23,300 in
guarantee were to be paid to the Government.
- 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 sum into imprisonment as stipulated in
Article 586 of the CC (not more than one day per EUR 13: see Relevant
domestic law, below).
- On
28 July 2006 the Criminal Court ordered the sum in guarantee 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) of imprisonment, and the
applicant was placed in detention.
C. Constitutional Proceedings
- 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 it 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 sum could be
converted and therefore constituted degrading punishment.
- 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
related and 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 under Article 3.
- On
12 February 2008 the Constitutional Court rejected an appeal lodged
by the applicant. It held, however, that the first court had erred in
considering his detention as falling under Article 5 § 1 (a),
namely, following a conviction. His detention had its basis in
Article 5 § 1 (b), namely, in order to secure the fulfilment of
an obligation prescribed by law. It followed that, according to
Strasbourg case-law, there had to be 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 (Leger v
France, and Price v the United Kingdom), this was not so
in the present case.
II. RELEVANT DOMESTIC LAW
- Article
579 of the Criminal Code, 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 subarticle (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
subarticle (2) shall be taken by the Police and shall be decided by
the Court with urgency.”
- Article
585 of the Criminal Code, 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.”
- Article
586 of the Criminal Code, 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 euro and sixty-five cents (11.65)
of that sum, whether such person is the person charged or accused or
the surety.”
THE LAW
- The
applicant complained that the application of Article 586 of the
Criminal Code in his case breached his rights under the Convention in
that it gave rise to an excessive and disproportionate punishment. He
invoked Article 3, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
19. The Court, being master of the characterisation to be given in
law to the facts of the case (see Castravet v. Moldova,
no. 23393/05, § 23, 13 March 2007; Marchenko v. Ukraine,
no. 4063/04, § 34, 19 February 2009; and Berhani v. Albania,
no. 847/05, § 46, 27 May 2010), is not bound by the
characterisation given by the parties. By virtue of the jura novit
curia principle, it has, for example, considered of its own
motion complaints under Articles or paragraphs not relied on by the
parties (see Scoppola v. Italy (no. 2) [GC], no.
10249/03, § 54, ECHR 2009 ..., and Anusca v. Moldova,
no. 24034/07, § 26, 18 May 2010). A complaint is characterised
by the facts alleged in it and not merely by the legal grounds or
arguments relied on (see, for instance, Guerra and Others v.
Italy, 19 February 1998, § 44, Reports of Judgments
and Decisions 1998-I). Thus, in the present case the Court has
decided to examine the issue raised by the applicant also under
Article 5 of the Convention and Article 1 of Protocol No. 4 to the
Convention, in addition to Article 3 (see, mutatis mutandis,
Zehentner v. Austria, no. 20082/02, § 35, ECHR 2009 ...)
and to obtain the parties' submissions thereon.
-
The provisions, in so far as relevant, read as follows:
Article 5
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(b) the lawful arrest or detention of a
person for non-compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
Article 1 of Protocol No. 4
“No one shall be deprived of his liberty merely on
the ground of inability to fulfil a contractual obligation.”
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
- The
Government submitted that the applicant had failed to exhaust
domestic remedies in respect of his complaint in so far as it was to
be examined under Article 5 and Article 1 of Protocol No. 4. The
applicant's complaint to the constitutional jurisdictions had been
limited to Article 3 and although the domestic courts had referred to
Article 5, en passant, they had taken no decision on the
matter. In consequence, the State had not been given the opportunity
to redress the violations in question.
- The
Court reiterates that the purpose of the requirement that domestic
remedies must be exhausted is to afford the Contracting States the
opportunity of preventing or putting right - normally through the
courts - the violations alleged against them before those allegations
are submitted to the Convention institutions. This means that the
complaint which is intended to be brought before the Court must first
be raised, at least in substance and in compliance with the relevant
requirements of domestic law, before the appropriate national courts
(see, Gasus Dosier- und Fördertechnik GmbH v. the
Netherlands, 23 February 1995, § 48, Series A no. 306 B).
- The
Court notes that in the domestic proceedings before the
constitutional jurisdictions the applicant, invoking Article 3,
complained about the proportionality of the measure applied to him,
namely the Criminal Court's decision of 28 July 2006 ordering his
detention for two thousand days, in accordance with Article 586 of
the CC.
- The
Court considers that the complaints, as characterised by the Court,
under Article 5 and Article 1 of Protocol No. 4 (see paragraph 19
above) arise out of the same facts and are based on the same
arguments, namely the proportionality of the impugned measure, which
were brought before the domestic courts. Indeed the Constitutional
Court itself referred to the proportionality test under Article 5.
Thus, the Court considers that the constitutional jurisdictions were
given the opportunity to redress the alleged violations (see, mutatis
mutandis, Gasus Dosier- und Fördertechnik GmbH, cited
above, § 49).
- It
follows that in these circumstances the Government's objection must
be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the application of Article 586 of the CC in
his case breached Article 3 of the Convention in that it gave rise to
an excessive and disproportionate punishment. Indeed, Article 586 did
not apply a ceiling on the length of the imprisonment to which a sum
could be converted. In the present case, there was no relation of
proportionality between the severity of the punishment (2,000 days of
imprisonment) and the minor infringement committed (the failure to
observe a curfew). Moreover, this prison term, unlike in other cases,
was not subject to remission for good behaviour.
- The
Government submitted that the applicant had freely entered into the
obligation, the breach of which entailed the conversion of the sum
guaranteed into detention at a pre-determined rate. Moreover, whether
the treatment at issue amounted to punishment or otherwise, it had
not reached the threshold required to find a violation of Article 3.
- The Court reiterates that Article 3 of the Convention
enshrines one of the most fundamental values of democratic society.
It prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances and the
victim's behaviour. Ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3. The
assessment of this minimum depends on all the circumstances of the
case, such as the duration of the treatment, its physical or mental
effects and, in some cases, the sex, age and state of health of the
victim. The Court has consistently stressed that the suffering and
humiliation involved must in any event go beyond that inevitable
element of suffering or humiliation connected with a given form of
legitimate treatment or punishment. Measures depriving a person of
his liberty may often involve such an element (see Kafkaris v.
Cyprus [GC], no. 21906/04, §§ 95-96, ECHR 2008 ...)
- The
Court does not exclude that the imposition of a disproportionate
sentence having regard to all the circumstances of the case may give
rise to an issue under Article 3 of the Convention (see, mutatis
mutandis, Hussain v. the United Kingdom, 21 February 1996,
Reports 1996-I; T. v. the United Kingdom and V. v.
the United Kingdom [GC], nos. 24724/94 and 24888/94, §§
99 and 100 respectively, judgments of 16 December 1999 and Einhorn
v. France (dec.), no. 71555/01, ECHR 2001-XI). However,
to find a State in violation of Article 3 is particularly serious and
a minimum level of severity is required for a complaint to fall
within the scope of Article 3. The Court observes that, while the
length of the applicant's detention as a result of his failure to pay
the amount of the guarantee may be a source of stress and anxiety to
the applicant, it cannot be said to have reached the threshold
proscribed by Article 3.
- It
follows that this complaint is inadmissible as manifestly ill-founded
within the meaning of Article 35 § 3 and must be rejected
pursuant to Article 35 § 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant submitted that the measure in question was punitive in
nature. It was applied solely in consequence of his failure to fulfil
a contractual obligation, thus it ran counter to Article 5 § 1,
particularly in view of its disproportionality. The applicant
highlighted that unlike other similar provisions in the law, Article
586 of the CC did not apply a ceiling placing a reasonable cap on the
maximum length of detention. Moreover, in such circumstances the
applicant could not benefit from remission for good behaviour.
- The
Government submitted that, following the breach of his bail
conditions, the applicant was placed in detention in accordance with
the first limb of Article 5 § 1 (b), namely in order to secure
the fulfilment of an obligation that was prescribed by law and was
entered into freely. However, the measure applied was also a result
of the applicant's failure to comply with the lawful order of a court
and also fell under the second limb of Article 5 § 1 (b). Hence,
it was punitive in nature. In such circumstances, there had been no
other course of action than to apply the detention prescribed by law.
- The
Government submitted that the bail conditions imposed by the court
had been specific, clear and unequivocal. They were necessary
measures giving due importance to the right to liberty. Once, the
applicant breached one of the conditions imposed, he suffered the
envisaged consequences. However, the applicant had had every
opportunity to comply with the order of the court to pay the
guarantee money, at which moment he would be released, yet he failed
to do so. The obligation therefore remained unfulfilled to the
present day. The Government further submitted that remission did not
apply to the applicant's case since his freedom was in his hands.
2. The Court's assessment
- The
Court reiterates that Article 5 § 1 contains an exhaustive list
of permissible grounds of deprivation of liberty. However, the
applicability of one ground does not necessarily preclude that of
another; a detention may, depending on the circumstances, be
justified under more than one sub-paragraph (see, for example,
Eriksen v. Norway, judgment of 27 May 1997, Reports
1997-III, pp. 861-62, § 76, and Enhorn v. Sweden,
no. 56529/00, § 34, ECHR 2005-...). The Court considers
that the same applies to separate limbs of the same subparagraph.
- In
the present case, the Government submitted that the detention was in
accordance with Article 5 § 1 (b) under both its first and
second limbs.
- The
first limb refers to detention for “non-compliance with the
lawful order of a court”, already made against the individual.
The Convention organs have applied it to include, inter alia,
failure to pay a court fine (see Airey v. Ireland, Decisions
and Reports (DR) no. 8), failure to undergo medical examinations
ordered by a court (see X. v. Austria, DR no. 18, and X v.
FRG, no.6659/74, DR no.3), failure to comply with a decision to
hand over children to a parent (see Paradis v Germany, (dec).
no.4065/04, 4 September 2007), failure to observe residence
restrictions imposed by a judicial decision (see Freda v Italy,
DR no. 21) and failure to observe binding-over orders (see, for
example, Steel and Others v. the United Kingdom, 23 September
1998, § 69, Reports 1998 VII).
- The
Court notes that the applicant did not comply with the court order of
6 June 2006 ordering him to pay EUR 23,300 and was consequently
imprisoned for two thousand (2,000) days.
- Bearing
in mind that the Convention and its Protocols have to be read as a
whole, the Court draws attention to the provision of Article 1 of
Protocol No. 4 which prohibits imprisonment merely on the ground of
inability to fulfil a contractual obligation. The Court has already
expressed reservations about the imprisonment in default system as
such, considering it as constituting an archaic custodial measure
available only to the Treasury (in the French system) (see Göktan
v. France, no. 33402/96, § 51, ECHR 2002 V). However,
it noted that Article 1 of Protocol No. 4 would not apply to such a
system, since the provision prohibits imprisonment for debt solely
when the debt arises under a contractual obligation (see Göktan,
cited above § 51). However, although the circumstances in
the present case are different to those in Göktan
and require a further analysis under Article 1 of Protocol No. 4, the
Court is ready to accept that the Government could rely on the first
limb of Article 5 § 1 (b) as a ground for the applicant's
detention.
- The
Court reiterates that Article 5 § 1 of the Convention requires
in the first place that the detention be “lawful”, which
includes the condition of compliance with a procedure prescribed by
law. The Convention here essentially refers back to national law and
states the obligation to conform to the substantive and procedural
rules thereof, but it requires in addition that any deprivation of
liberty should be consistent with the purpose of Article 5, namely to
protect individuals from arbitrariness. A period of detention will in
principle be lawful if it is carried out pursuant to a court order
(see Benham v. the United Kingdom, §§ 40 and 42, 10
June 1996, Reports 1996-III). However, the domestic
authorities must strike a fair balance between the importance in a
democratic society of securing compliance with a lawful order of a
court, and the importance of the right to liberty (see Paradis
v France, (dec.) cited above). The Court considers that in
such circumstances issues such as the purpose of the order, the
feasibility of compliance with the order, and the duration of the
detention are matters to be taken into consideration. The issue of
proportionality assumes particular significance in the overall scheme
of things.
- The
Court observes that it is not in dispute that the detention was
ordered by the domestic courts pursuant to Article 585 and that the
length of the detention was stipulated on the basis of Article 586 of
the CC. It remains to be determined whether the measure in question
was proportionate.
- The
purpose of the court order was to secure payment of an amount due to
the authorities by way of a penalty for breaching bail conditions.
The Court considers that monetary guarantees are indispensable to
ensure respect for the right to liberty when considering remand in
custody. It notes however that in 2006 the applicant
was indigent and unable to pay the said amount, although he might
have been able to do so when he assented to the obligation in 2001.
Indeed, it would have been reasonable for the applicant to assume
that the proceedings against him would not have lasted over five
years. The Court observes that the applicant had
been under strict bail conditions (see paragraph 8 above) for nearly
five years. Thus, it is plausible to conclude that he had been unable
to earn a living during that period. In such circumstances, it was
unrealistic to expect that the applicant would be able to comply with
the court order.
43. The
Court further notes that in the cases examined under the first limb
of Article 5 § 1 (b) the duration of the detention amounted to
short periods, such as four days (see, Airey v.
Ireland, Commission decision,
cited above) or one week (see Freda,
and Steel and
Others, both cited
above) and at maximum six months (see Paradis,
cited above). In the present case,
the detention for non-compliance with a court order has so far
amounted to over four years and is set to last for over five years
and six months in total. Moreover, this period was not subject to
remission, as would have been the case had the applicant been
detained after conviction (Article 5 § 1 (a)). Nor was this
period of detention subject to the guarantees of Article 5 § 3,
as would have been the case had the applicant been remanded in
custody on suspicion of having committed a crime (Article 5 § 1
(c)). In light of the above, the Court considers that a period of
detention of more than five years and six months (two thousand days)
for failure to comply with a court order to pay EUR 23,300 as a
result of a one-time breach of curfew imposed as a bail condition
cannot be considered to strike a fair balance between
the importance in a democratic society of securing compliance with a
lawful order of a court and the importance of the right to liberty.
44. In
consequence, in so far as it is based on this ground, the applicant's
entire period of detention cannot be said to have been in accordance
with Article 5 § 1 of the Convention.
- The
Court must nevertheless consider whether the detention was Convention
compatible on the basis of the second ground invoked by the
Government, namely the second limb of Article 5 § 1 (b) “in
order to secure the fulfilment of any obligation prescribed by law”.
- The
Court reiterates that the second limb of Article 5 § 1 (b)
allows for detention to secure the fulfilment of a specific and
concrete obligation prescribed by law, which is already incumbent on
the person concerned. The arrest and detention must be for the
purpose of securing its fulfilment and not punitive in character.
Moreover, a balance must be struck between the importance in a
democratic society of securing the immediate fulfilment of the
obligation in question and the importance of the right to liberty. In
this assessment the nature of the obligation arising from the
relevant legislation including its underlying object and purpose, the
person being detained, the particular circumstances leading to the
detention and the length of the detention are relevant (see Vasileva
v. Denmark, no. 52792/99, §§ 36-38, 25 September 2003).
-
The Court considers that the obligation undertaken by the applicant
on 14 August 2001 to pay EUR 23,300 in the event that he breached his
bail conditions was concrete and sufficiently precise.
- As
to the purpose of detention, the Court notes that at that stage it
was no longer to ensure compliance with bail conditions, but simply
to ensure the payment of the sum guaranteed. The Court has previously
held that imprisonment in default of payment (of a customs fine) was
not a means of enforcing the fine, but a penalty (see Jamil v.
France, 8 June 1995, § 32, Series A no. 317 B, and
Göktan, cited above, § 48) and the Government have
acknowledged that in the present case the measure was punitive in
nature (see paragraph 33 above). The Court sees no reason to differ.
In particular, it notes that, imprisonment in default as applied to
the failure to pay a guarantee following a breach of bail conditions,
may give rise to a situation where an individual is imprisoned for a
longer time than the term he would have served had he been found
guilty of the crime he was charged with. The situation would be even
more paradoxical if the individual were to be acquitted of such
charges. The Court, furthermore, has difficulty in accepting that the
detention of the applicant could secure the fulfilment of the
obligation as his indigent state (see
paragraph 42 above) will undoubtedly
persist and quite plausibly increase while he remains in jail.
- As
regards the circumstances leading to
the detention, the Court notes that the applicant, who, pending
criminal proceedings for drug trafficking, was on bail subject to
residence restrictions, had not abided by his curfew on one occasion.
As a result he has been detained, and will continue to be so, for a
total of more than five and a half years (two thousand days), unless
he pays the sum of EUR 23,300. The Court observes that Maltese law,
in respect of the circumstances in which a bail bond will be
forfeited to the Government as a result of a failure to observe bail
conditions (Article 579 of the CC), makes no distinction between
conditions related to the primary purpose of bail, namely appearance
at the trial, or conditions related to other considerations. It
however, gave the authorities discretion not to apply the said
provision if the breach of conditions was not of a serious nature. In
the present case where the condition breached, referred to a curfew
and was not connected to the primary purpose of
granting bail, the Court has
difficulty in understanding the authorities' decision to apply the
relevant article. In this light, the Court finds it relevant to point
out that in the absence of proper guidelines as to the exercise of
discretion under Article 579, or of a distinction between breaches of
conditions relating to the primary purpose of bail and other
considerations, Maltese law is deficient in that it can lead to
arbitrary and disproportionate results.
50. The
Court, accepts that in granting the applicant bail in the first
place, the domestic authorities were bearing in mind the importance
of the right to liberty. It is also ready to accept that subsequently
the domestic court applied the relevant conversion parameters
correctly and in good faith. However, the Court observes that Article
586 of the CC does not apply to
imprisonment in default a ceiling on the duration of the detention
(an individual could hypothetically also be imprisoned for life), nor
does it provide for any assessment of proportionality and therefore
Maltese law is deficient also in this respect. Indeed, the
application of the law in the present case gave rise to a period of
detention of excessive duration vis
à
vis the obligation
to be fulfilled as a consequence of the breach committed.
51. In
conclusion, the Court considers that in the circumstances of the
present case, and especially on account of its duration, the
applicant's detention was disproportionate. In particular, the law
and its application to the applicant, failed to strike a
balance between the importance in a democratic society of securing
the immediate fulfilment of the obligation in question and the
importance of the right to liberty.
- Accordingly,
the Court finds a violation of Article 5 § 1 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 4 TO THE
CONVENTION
- The
applicant submitted that he was deprived of his liberty as a result
of a court order for failure to fulfil a contractual obligation
contrary to Article 1 of Protocol No.4 to the Convention.
- The
Government submitted that in the present case the provision was not
applicable, and even if it were so there had been no violation.
- Leaving open the question as to whether Article 1 of
Protocol No. 4 is applicable in the present case, the Court notes
that this complaint is closely linked to the one examined above and
must therefore likewise be declared admissible (see, mutatis
mutandis, Ezel Tosun v. Turkey, no. 33379/02, § 28,
10 January 2006).
- However,
having regard to its finding of a violation of Article 5 § 1 the
Court does not consider it necessary to examine the complaint
separately.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not formulate a detailed Article 41 claim, confining
himself to indicating what might be an acceptable disposal of the
case, namely the deduction of the time already spent in detention
from any sentence of imprisonment which might be imposed if he were
ultimately convicted of the criminal charges pending against him or,
in the event of his acquittal of those charges, the award of
compensation for the period of his unlawful detention.
- Having
examined the circumstances of the case, the Court considers that the
question under Article 41 is not ready for decision. That question
must accordingly be reserved and the subsequent procedure fixed,
having due regard to any agreement which might be reached between the
respondent Government and the applicant (Rule 75 § 1
of the Rules of Court). The Court can only note in this latter
connection that the applicant has been in detention since 28 July
2006, a period of time which the Court has found to be
disproportionate and in flagrant breach of Article 5 of the
Convention. Bearing in mind the urgent need to put an end to the
violation of Article 5 § 1 (see paragraph 52 above),
the respondent State should in any event give consideration
to securing the applicant's immediate release from
detention in so far as the legal basis for this period of detention
is the Criminal Court's decision of 28 July 2006 applying Articles
585 and 586 of the Criminal Code.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Article 5 §
1 of the Convention and Article 1 of Protocol No. 4 to the Convention
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
3. Holds that it is not necessary to examine the
complaint under Article 1 of Protocol No. 4 to the Convention;
- Holds that the question of the application of
Article 41 is not ready for decision and accordingly,
(a) reserves
the said question as a whole;
(b) invites
the Government and the applicant to submit, within one month from the
date on which this judgment becomes final in accordance with
Article 44 § 2 of the Convention, their written
observations on the matter and, in particular, to notify the Court of
any agreement that they may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done
in English, and notified in writing on 27 July 2010, pursuant to Rule
77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
