*693
Sabeur Ben Ali v. Malta
Application No. 35892/97
(2002) 34 E.H.R.R. 26
(No review of merits or lawfulness
of detention on remand)
Before the European Court of Human
Rights
ECHR
(The President, Judge Rozakis;
Judges Conforti, Bonello, Str‡znick‡ ,
Lorenzen, Fischbach, Levits)
29 June 2000
H1 The applicant was arrested for alleged
drugs-related offences, remanded in custody and subsequently acquitted of all
charges. Relying on Article 5(3) and (4)of the Convention, he complained that
he had been unable to obtain a review of the reasonableness of the suspicion
against him and have the lawfulness of his arrest and detention reviewed
speedily by a court. He also claimed just satisfaction under Article 41.
H2 Held, unanimously
(1) that there had been a violation
of Article 5(3) of the Convention;
(2) that there had been a violation
of Article 5(4) of the Convention;
(3)
(a) that the respondent State should
pay the applicant, within three months from the date on which the judgment
became final according to Article 44(2) of the Convention, the following
amounts: 1,000 Maltese liras in respect of non-pecuniary damage and 900 Mlr for
costs and expenses, together with any value added tax chargeable;
(b) that simple interest at an
annual rate of 8 per cent be payable from the expiry of the abovementioned
three months until settlement;
(4) that the remainder of the
applicant's claims for just satisfaction be dismissed.
1. Right to liberty and security:
right to automatic review of merits of detention (Art. 5(3)).
H3 (a) Article 5(3) of the Convention
provides persons arrested or detained on suspicion of having committed a
criminal offence with a guarantee against arbitrary or unjustified deprivation
of liberty. [28]
H4 (b) The opening part of Article
5(3) guarantees the right to be brought promptly before a judge or "other
officer" and requires prompt automatic review by a judicial officer of the
merits of the detention; the second part of the provision guarantees the right
to trial within a reasonable time or release pending trial. [28]-[29]
H5 (c) The applicant's appearance
before the Magistrates' court was not capable of ensuring respect for Article
5(3) because that court had no power to review automatically the merits of the
detention. [30]
H6 (d) Since Article 5(3) guarantees
an automatic right to be brought before a judge, the Court is not convinced by
the Government's *694 argument that Article 5(3) was complied with because
national law gave the applicant the possibility, which he did not use, of
lodging an application challenging the lawfulness of his detention and a bail
application--the latter after the conclusion of the inquiry. [31]
H7 (e) It follows that the applicant
could not obtain an automatic ruling by a domestic judicial authority on
whether there existed a reasonable suspicion against him. This constitutes a
breach of Article 5(3) of the Convention. [32]
2. Right to liberty and security:
right to speedy review of lawfulness of detention (Art. 5(4)).
H8 (a) Article 5(4) of the Convention
refers to domestic remedies that are sufficiently certain, otherwise the
requirements of accessibility and effectiveness are not fulfilled. Moreover,
the aim of Article 5(4) is to ensure a "speedy" review of the
lawfulness of detention. [38]
H9 (b) The applicant did not have at
his disposal under domestic law a remedy for challenging the lawfulness of his
detention. He could not have obtained a review of the lawfulness of his
detention by relying on Article 137 of the Criminal Code, and lodging a
constitutional application would not have ensured a speedy review of his
detention. Nor could he have obtained a review of his detention by loding a
bail application, the question of bail coming into play only when the detention
is lawful. Article 5(4) of the Convention was therefore violated. [39]-[42]
3. Just satisfaction: damage;
costs and expenses; default interest (Art. 41).
H10 (a) There is no causal link between
the sum claimed for pecuniary damage and the violations found. Accordingly, no
award is made under this heading. [46]
H11 (b) Compensation for non-pecuniary
damage is assessed on an equitable basis. [49]
H12 (c) No award for costs and expenses
can be made in respect of the domestic proceedings since the applicant did not
institute any such proceedings in order to seek redress for the violations of
the Convention found in this case. However, an award is made in respect of the
Convention proceedings.[52]
H13 (d) The statutory rate of interest
applicable in Malta is 8 per cent per annum.[53]
H14 Representation
Mr A.E. Borg (Agent), for the
Government.
Mr J. Brincat, lawyer, for the
applicant.
H15 The following cases are referred to
in the Court's judgment:
1. Aquilina v. Malta: 29 April 1999,
not yet reported in E.H.R.R.
2. Assenov v. Bulgaria: (1999) 28
E.H.R.R. 652.
3. E v. Norway (A/181-A): (1994) 17
E.H.R.R. 30.
4. Jacobsson v. Sweden (A/180-A):
(1990) 12 E.H.R.R. 56.
5. Sakik v. Turkey: (1998) 26
E.H.R.R. 662 .
The Facts
I. The circumstances of the case
7 On 17 March 1995 the applicant was
arrested in Malta for drug-related offences. On 19 March 1995 he was brought
before the Magistrates' Court composed of a single magistrate, to be arraigned.
*695 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.
8 On conclusion of the inquiry on 4
April 1995, the applicant was committed for trial. On 29 July 1996 he applied
to the Magistrates' Court 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 24 hours to
reply. After the observations of the Attorney-General had been obtained, a
magistrate heard the parties on 31 July 1996. On 1 August 1996 the magistrate
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.
9 The trial commenced on 4 February
1997. On 5 February 1997 the applicant was acquitted of all charges and was
released from custody.
II. Relevant domestic law and
practice
A. Arrest and detention
10 Article 34(3) of the Constitution
of Malta provides:
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 48 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.
11 Article 353 of the Criminal Code
provides:
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 48 hours.
12 In its judgment of 8 January 1991
in the 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 *696 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 adduce evidence that the police had a reasonable suspicion
at the time of the arrest.
13 In its judgment of 13 June 1994 in
the Aquilina case, the Constitutional Court followed the same approach.
B. Bail
14 The Criminal Code contains the
following articles concerning bail:
574.
(1) Any accused person who is in
custody for any crime or contravention may, on application, be granted
temporary release from custody, upon giving sufficient security to appear at
the proceedings at the appointed time and place.
...
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.
...
582.
(1) The Court may not ex officio grant bail, unless it is
applied for by the person charged or accused.
...
C. The Dangerous Drugs Ordinance
15 Section 27 of the Dangerous Drugs
Ordinance [FN1] provides:
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 Article 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 20 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 20 days or such earlier date as aforesaid, the
Court may grant temporary release from custody in accordance with the
provisions of that Code.
FN1 Chapter 101 *697 of the Laws of Malta.
Provided that if the term of the
inquiry is held in abeyance for the reason specified in paragraph (c) of
subsection (1) of Article 402 of the Criminal Code, the Court may nonetheless
grant temporary release from custody after the lapse of 20 days from the
arraignment.
16 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 Article 137 of the Criminal Code and claiming that
section 27 of the Dangerous Drugs Ordinance was in violation of the Convention.
The Magistrates' Court 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 Aquiline 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. The Constitutional Court is expected to deliver its
judgment on 19 June 2000. In the meanwhile Godfrey Ellul was released on bail
on 3 November 1999.
D. Section 137 of the Criminal
Code
17 Article 137 of the Criminal Code provides:
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 24 hours, shall, on conviction, be liable to imprisonment
for a term from one to six months.
18 On 13 April 1983 the police
arrested Anthony Price for a breach of the Immigration Act. During his
detention he became suspected of a serious offence concerning the public
security of Malta. On 17 June 1983 the applicant applied to the Magistrates'
Court requesting that he should be either charged or released. On 20 June 1983
the Magistrates' Court considered that it had the power under Article 135 [FN2]
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
Magistrates' Court within 48 hours as required by section 365 [FN3]of the Criminal
Code. As a result, the court ordered Price's release.
FN2 Currently art. 137.
FN3 Currently art. 353.
19 On 13 June 1990 the First Hall of
the Civil Court ordered Christopher Cremona to be detained for 24 hours for
contempt of court. The detainee appealed under Article 1003 of the Code of
Organisation and Civil Procedure. The Attorney-General, with reference to
Cremona having invoked Article 137 of the Criminal Code, requested the
Magistrates' Court 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. According to *698 the Attorney-General,
Cremona's appeal had suspensive effect on the execution of the judgment and, as
a result, his continued detention was illegal. The Magistrates' Court acceded
to the Attorney-General's request.
20 Ibrahim Hafez Ibrahim Ed Degwej
later christened Joseph Leopold invoked Article 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 Magistrates' Court ordered that the Attorney-General be notified and,
having heard his views, still on 4 July 1995, decided to reject the
application.
21 On 5 October 1994 the Magistrates'
Court rejected an application for release by Emanuela Brincat. It observed:
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 in 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.
E. The Convention in domestic law
22 Article 4(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.
23 By virtue of the European
Convention Act of 19 August 1987 the Convention became part of the law of
Malta. Section 4(3) of the Act provides:
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
section 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.
24 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 of the Civil Court on 11 April 1989 and by the
Constitutional Court on 15 February 1991; *699
the abovementioned Nicholas
Ellulcase;
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. [FN4]
FN4 On 31 December 1997 the case was
still pending before the Constitutional Court.
JUDGMENT
I. Alleged violation of Article
5(3) of the Convention
25 The applicant complains under
Article 5(3) of the Convention that the Magistrates' Court before which he
appeared on 19 March 1995 did not have the power to examine the reasonableness
of the suspicion against him. Article 5(3) of the Convention provides:
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.
Article 5(1)(c) of the Convention
provides:
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:
...
(c) the lawful arrest or detention
of a person effected for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence or when it is
reasonably considered necessary to prevent his committing an offence or fleeing
after having done so ....
26 The Government submitted that the
applicant's appearance before the Magistrates' Court on 19 March 1995 satisfied
the requirements of Article 5(3) of the Convention. It also argued that there
was 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).
27 The applicant argued that his
appearance before the Magistrates' Court on 19 March 1995 could not satisfy
Article 5(3) of the Convention because of the limitations that national law
imposed on the Magistrates' Court competence. In the applicant's view, the only
way in which one could effectively obtain release from detention *700 pending trial was by
applying for bail. The applicant considered that the violation of Article 5(3)
continued until the date of his release from custody.
28 The Court recalls that Article 5(3)
of the Convention provides persons arrested or detained on suspicion of having
committed a criminal offence with a guarantee against any arbitrary or
unjustified deprivation of liberty. [FN5]What is described in the case law as
"the opening part of Article 5(3)" guarantees the right to be brought
promptly before a judge or "other officer"; the second part of the
provision guarantees the right to trial within a reasonable time or release
pending trial. [FN6]
FN5 See Aquilina v. Malta: 29 April
1999, para. 47.
FN6 See Assenov v. Bulgaria: (1999)
28 E.H.R.R. 652.
29 According to the Court's case law,
the opening part of Article 5(3) requires prompt automatic review by a judicial
officer of the merits of the detention. [FN7]
FN7 See Aquilina v. Malta, loc. cit.
30 Turning to the circumstances of the
present case, the Court considers that the applicant's appearance before the
Magistrates' Court on 19 March 1995 was not capable of ensuring respect for
Article 5(3) of the Convention because, as established in the abovementioned
Aquiline v. Malta judgment, [FN8] that court had no power to review
automatically the merits of the detention.
FN8 Loc. cit.
31 Since Article 5(3) guarantees an
automatic right to be brought before a judge, the Court is not convinced by the
Government's argument that Article 5(3) has been complied with because national
law gave the applicant the possibility, which he did not use, of lodging an
application challenging the lawfulness of his detention and a bail
application--the latter after the conclusion of the inquiry.
32 It follows that, the applicant
could not obtain an automatic ruling by a domestic judicial authority on
whether there existed a reasonable suspicion against him. This constitutes a
breach of Article 5(3) of the Convention.
II. Alleged violation of Article
5(4) of the Convention
33 The applicant complained that,
throughout the entire period of his detention on remand, he could not have the
lawfulness of his arrest and detention reviewed speedily by a court in breach
of the requirements of Article 5(4) of the Convention, which provides:
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.
34 The Government submitted that the
applicant could have lodged an *701 application under Article 137 of
the Criminal Code challenging the lawfulness of his arrest or detention. They
cited in this connection the Anthony Price, Christopher Cremona , Ibrahim Hafez
Ibrahim Ed Degwej and Emanuela Brincatcases where this section was invoked
before domestic courts. Alternatively, according to the Government, the
applicant could have complained of a breach of Article 5(4) of the Convention
of the Magistrates' Court, which would have had to refer the matter to the
First Hall of the Civil Court in its constitutional jurisdiction. The
Magistrates' Court would have been bound by the decision of the Civil Court or
of the Constitutional Court in the case of an appeal. The Government cited 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.
35 According to the Government, a
distinction could be drawn between a request for provisional release, that is a
request to be released on bail, and a habeas corpus application under Article
137 of the Criminal Code. A request for provisional release on bail conceded
the lawfulness of detention. A habeas corpus application was lodged when the
detention was unlawful and aimed at unconditional release. Nothing precluded a
person who had been refused bail from contesting at anytime the lawfulness of
his or her detention by applying to the Magistrates' Court which would order immediate
release if satisfied that the detention was indeed unlawful.
36 The applicant argued that most of
the cases cited by the Government as regards Article 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 could be detained without being brought before a Magistrates'
Court in Malta. In the Emanuela Brincat case the Magistrates' Court considered
the reference to Article 137 of the Criminal Code as incomprehensible and
superfluous.
37 Furthermore, the applicant
submitted that proceedings for failure to respect Article 5(4) involving the Civil
Court and possibly the Constitutional Court could not by definition lead to a
"speedy" decision as required by Article 5(4) of the Convention. As
for the rest he reiterates his submission that the only way in which one could
effectively obtain release from detention pending trial was by applying for
bail.
38 The Court recalls that, according
to its case law, Article 5(4) of the Convention refers to domestic remedies
that are sufficiently certain, otherwise the requirements of accessibility and
effectiveness are not fulfilled. [FN9]Moreover, the Court recalls that the aim
of Article 5(4) is to ensure a "speedy" review of the lawfulness of
detention. The Court has *702 considered, for example, that a
period of approximately eight weeks from the lodging of an application to
judgments appears prima facie difficult to reconcile with the notion of
"speedily. [FN10]
FN9 See Sakik v. Turkey: (1998) 26
E.H.R.R. 662, para. 53.
FN10 E v. Norway (A/181-A): (1994)
17 E.H.R.R. 30, para. 64.
39 The Court has examined the cases
invoked by the Government in support of its contention that the applicant could
have obtained a review of the lawfulness of his detention by invoking Article
137 of the Criminal Code. The Court considers that, as it transpires from its
wording, this provision primarily aims at the punishment of officials who fail
to attend to complaints about the lawfulness of detention. It is true that in
some instances courts have relied on this provision as a basis for ordering the
detainee's release. However, apart from the Anthony Price case which concerned
the 48 hour time-limit for bringing arrested persons before a magistrate having
been exceeded, the Government did not refer to any instances in which Article
137 was successfully invoked to challenge the lawfulness of arrest or detention
on suspicion of a criminal offence. In the applicant's case the 48 hour
time-limit had not been exceeded. The Court therefore finds that the Government
has not shown that the applicant could have obtained a review of the lawfulness
of his detention by relying on Article 137 of the Criminal Code.
40 The Court has also examined the
cases invoked by the parties in which constitutional applications were lodged
on the basis of Article 5(4) of the Convention, which is part of domestic law.
The Court notes that, according to the Government's own description, lodging a
constitutional application involves a referral to the Civil Court and the
possibility of an appeal to the Constitutional Court. This is a cumbersome
procedure especially since practice shows that appeals to the Constitutional
Court are lodged as a matter of course. Moreover, recent practice shows that
the relevant proceedings are invariably longer than what would qualify as
"speedy" for Article 5(4) purposes. [FN11] It follows that lodging a
constitutional application would not have ensured a speedy review of the
lawfulness of the applicant's detention.
FN11 See para. 24 above.
41 Finally, as the Government
accepted, the applicant could not have obtained a review of the lawfulness of
his detention by lodging a bail application, the question of bail coming into
play only when the detention is lawful. [FN12]
FN12 See Aquilina v. Malta, loc.
cit., para. 55.
42 It follows that it was not shown
that the applicant had at his disposal under domestic law a remedy for
challenging the lawfulness of his detention. Article 5(4) of the Convention was
therefore violated.
III. Application of Article 41 of
the Convention
43 The applicant sought just
satisfaction under Article 41 of the Convention, which reads: *703
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.
A. Pecuniary damage
44 The applicant claimed 5,000 Mlr, a
sum that corresponds to the minimum salary he would have earned if he had
worked as an unskilled worker in Malta for the period of time he spent in
prison.
45 The Government observed that the
applicant, a foreign national, did not have a work permit in Malta. Moreover,
he did not establish that if Article 5(3) and (4) had not been violated he
would have obtained earlier release.
46 The Court considers that there is
no causal link between the sum claimed for pecuniary damage and the violations
found in this case. Therefore it makes no award under this heading.
B. Non-pecuniary damage
47 The applicant claimed 2,000 Mlr by
way of symbolic compensation for the trauma he suffered as a result of his
detention and the problems he continued to face in his country because of the
suspicions to which the Maltese proceedings had given rise.
48 The Government submitted that no
causal link had been established between the violations and the sum claimed.
49 The Court considers that the
applicant must have suffered some non-pecuniary damage as a result of the
violation of his rights under Article 5(3) and (4) of the Convention. Making
its assessment on an equitable basis, the Court awards the applicant 1,000 Mlr
in this connection.
C. Costs and expenses
50 The applicant claimed 1,500 Mlr for
the domestic proceedings and 900 Mlr for the Strasbourg proceedings, by way of
costs and expenses.
51 The Government submitted that there
was no causal link between the amount claimed in respect of the domestic
proceedings and the violations. The claim in respect of the Strasbourg
proceedings was reasonable.
52 The Court notes that the applicant
did not institute any domestic proceedings in order to seek redress for the
violations of the Conventions found in this case. [FN13] The Court therefore
considers that it cannot make any award in respect of domestic proceedings.
However, the Court considers that the applicant should be awarded the sum of
900 Mlr claimed in respect of the Convention proceedings.
FN13 See Jacobsson v. Sweden
(A180-A): (1990) 12 E.H.R.R. 56, para. 46 *704 .
D. Default interest
53 According to the information
available to the Court, the statutory rate of interest applicable in Malta at
the date of adoption of the present judgment is 8 per cent per annum.
54 Order
For these reasons, THE COURT
unanimously
1. Holds that there has been a
violation of Article 5(3) of the Convention;
2. Holds that there has been a
violation of Article 5(4) of the Convention;
3. Holds
(a) that the respondent State is to
pay the applicant, within three months from the date on which the judgment
becomes final according to Article 44(2) of the Convention, the following
amounts: 1,000 Mlr in respect of non-pecuniary damage and 900 Mlr for costs and
expenses, together with any value added tax that may be chargeable;
(b) that simple interest at an
annual rate of 8 per cent shall be payable from the expiry of the
abovementioned three months until settlement;
4. Dismisses the remainder of the
applicant's claims for just satisfaction.