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FOURTH
SECTION
CASE OF GATT v. MALTA
(Application
no. 28221/08)
JUDGMENT
(Just
satisfaction –
Striking out)
STRASBOURG
14 June
2011
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,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić, judges,
David Scicluna, ad hoc
judge,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 24 May 2011,
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.
- In
a judgment delivered on 27 July 2010 (“the principal
judgment”), the Court held that there had been a violation of
Article 5 § 1 of the Convention (Gatt v. Malta, no.
28221/08, § 52, ECHR 2010 ...).
- Under
Article 41 of the Convention the applicant did not formulate a
detailed just satisfaction 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.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it and invited the
Government and the applicant to submit, within one month, their
written observations on that issue and, in particular, to notify the
Court of any agreement they might reach (ibid., § 59, and point
4 of the operative provisions). It further considered that 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 his period of detention
was the Criminal Court's decision of 28 July 2006 applying Articles
585 and 586 of the Criminal Code.
- The
applicant and the Government each filed observations.
- Mr V. De Gaetano, the judge elected in respect of
Malta, was unable to sit in the case (Rule 28 of the Rules of Court).
The President of the Chamber accordingly appointed Mr David Scicluna
to sit as an ad hoc judge (Rule 29 § 1(b)).
THE FACTS
- The
applicant, born in 1947 and in detention at the time of the
application, 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 p.m., 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 11.65).
- 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.
- 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.
- On
27 July 2010 the Court examined the merits of the present case and
found that there had been a violation of Article 5 § 1 of the
Convention.
- Following
the Court's judgment the Attorney General filed an application with
the Constitutional Court, to be determined with urgency, declaring
that for the purposes of Article 44 § 2 of the Convention the
Government undertook not to request a rehearing of the case before
the Grand Chamber. He requested the Constitutional Court to order the
execution of the Court's judgment of 27 July 2010 by ordering the
release of the applicant in so far as the legal basis for his
detention was the Criminal Court's decision of 28 July 2006 applying
Articles 585 and 586 of the Criminal Code, and to place the applicant
in the position he was in immediately prior to that decision, namely
a detainee awaiting trial.
- On
16 August 2010 the Constitutional Court granted the request.
- In
the meantime on 13 August 2010 the applicant had requested bail
before the Criminal Court. By means of a reply of 16 August 2010 the
Attorney General did not oppose the request.
- By
a decision of 17 August 2010 the Criminal Court granted the applicant
bail subject to certain conditions. He was released on the same day.
- By
a decision of 25 August 2010 the Criminal Court relaxed the curfew
conditions imposed when granting bail.
THE LAW
- The
Government submitted that following the Constitutional Court judgment
of 16 August 2010 it was clear that the applicant's detention between
28 July 2006 and 17 August 2010 would qualify for remission of any
prison sentence which may eventually be imposed on the applicant if
found guilty. This coupled with the applicant's release entailed that
the applicant had received full and just satisfaction in respect of
his claim.
- By
a letter of 17 December 2010 the applicant submitted that he was
satisfied with the outcome of his case. However, noting that the
relevant law had not yet been amended, he invited the Court to
provide guidelines in this respect.
- Having
been invited by the Registry to state whether he wished to
discontinue the outstanding Article 41 issue before the Court, by a
letter of 3 March 2011, the applicant reiterated that in view of the
developments subsequent to the Court's principal judgment, he was
satisfied with the outcome of his case.
- Having
regard to Article 37 § 1 (a) and (b) of the Convention, the
Court finds that the applicant does not intend to pursue the
remainder of the application since the matter before it has been
resolved. Furthermore, in accordance with Article 37 § 1 in
fine, the Court finds no special circumstances regarding respect
for human rights as defined in the Convention and its Protocols which
require the examination of the remainder of the application to be
continued.
- Accordingly,
the remainder of the case should be struck out of the list.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the remainder of the application out of its
list of cases.
Done in English, and notified in writing on 14 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
