Breach of right to liberty and security (ECHR)
Written by Ivan Mifsud Friday, 30 July 2010 22:09 Last Updated on Sunday, 01 August 2010 15:53
27 July 2010, Strasbourg (Ref: 28221/08). The ECHR upheld a claim against Malta, that 2000 days' imprisonment for breaching bail conditions, was excessive and amounted to a breach of the right to liberty and security (art. 5 (1) ).
The applicant was granted bail in 2001. The conditions of bail included a personal guarantee of 23,000 Euro and restrictions on the applicant's ability to leave his residence. Following a report that the applicant had been seen in Valletta after his curfew hours, the Criminal Court revoked his bail, ordered him to be re-arrested and to pay the guarantee. As he was not able to pay, imprisonment-in-default proceedings were brought against him under articles 585 and 586 of the Criminal Code and the guaranteed sum of money was converted to detention at the rate of one day per 11.50 Euro. This amounted to two thousand days imprisonment, that is, more than five years and six months.
Applicant alleged before the ECHR that the conversion into imprisonment of the guarantee he had failed to pay on breaching his bail conditions had been excessive and disproportionate. Emphasis was made on the fact that, under the relevant provisions of the Criminal Code, no ceiling was placed on the maximum length of detention. Nor could the applicant beneft from remission for good behaviour.The Court held that It was not in dispute that the applicant’s detention, ordered by the domestic courts on the basis of Articles 585 and 586 of the Maltese Criminal Code, had been lawful.
However, the Court considered that the applicant, who had been under strict bail conditions for nearly five years – presumably without being able to earn a living – could not realistically have been expected to comply with the court order and fulfil the relevant obligation, and that, in the circumstances, his detention, especially taking into account its duration, had been disproportionate. In particular, Maltese law and its application in this particular case had been deficient in two respects: it had made no distinction between a breach of bail conditions related to the primary purpose of bail (ie appearance at trial) and other considerations of a less serious nature such as a curfew, and it had not applied a ceiling on the duration of detention, nor had it made any assessment of proportionality. Thus, it had failed to strike a balance between the importance in a democratic society of securing the fulfilment of the obligation in question and the importance of the right to liberty, in violation of Article 5 § 1.
The Court held that the question of the application of Article 41 (just satisfaction) was not yet ready for decision. Nevertheless, given that the applicant had been in detention since July 2006 in flagrant breach of Article 5 § 1, it recommended that Malta consider his immediate release.
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