AS TO THE ADMISSIBILITY OF
Application no. 55263/00
by M'hmed KADEM
The European Court of Human Rights (Second Section), sitting on 20 September 2001 as a Chamber composed of
Mr C.L. Rozakis, President,
Mr G. Bonello,
Mrs V. Strážnická,
Mr M. Fischbach,
Mrs M. Tsatsa-Nikolovska,
Mr E. Levits,
Mr V. Zagrebelsky, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced on 11 February 2000 and registered on 1 March 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant is a Dutch national, born in 1952 and living in Rotterdam, the Netherlands. He is represented before the Court by Mr J. Brincat, a lawyer practising in Marsa, Malta.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 25 October 1998 the applicant was arrested on the strength of a provisional arrest warrant issued by a duty magistrate in connection with a request for his extradition made by the Kingdom of Morocco. The request was relayed to Malta through Interpol. The charge related to the applicant’s involvement in international drug trafficking in cannabis. The information laid before the magistrate by the Attorney General referred, inter alia, to the United Nations 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (“the Vienna Convention”), to Legal Notice 120 concerning designated countries and Government Notice 332 published in the Government Gazette of 24 May 1996 which reproduced the text of the Convention to which Malta acceded on 28 February 1996. Attached to the request was a Red Notice issued by Interpol bearing the applicant’s description and fingerprints as well as a certificate issued by the Prime Minister under subsection (4) of section 4 of the 1996 Order on Extradition (Designated Foreign Countries).
On 26 October 1998, pursuant to section 15(1) of the Extradition Act, the applicant was brought before the Magistrates’ Court acting as a court of criminal enquiry in connection with extradition proceedings. The presiding magistrate was different from the one who issued the provisional arrest warrant. The applicant did not challenge the lawfulness of his arrest and the proceedings were adjourned until 3 November 1998.
On 28 October 1998 the applicant filed a judicial notice with the First Hall of the Civil Court alleging that the provisional arrest warrant was unlawful because, inter alia, there were no bilateral extradition arrangements between Malta and Morocco and the Vienna Convention had not been incorporated into domestic law.
On 30 October 1998 the Prime Minister as the minister responsible for justice matters replied to the notice. The Prime Minister rejected the applicant’s claim as frivolous and vexatious. He stressed that both Malta and Morocco were parties to the Vienna Convention even though the Convention had not been incorporated into domestic law. On the latter point, he noted that Maltese law was already sufficiently equipped and adequate to implement Malta’s obligation under the Vienna Convention.
At its next sitting on 3 November 1998, the applicant’s lawyer pleaded that the Magistrates’ Court did not have jurisdiction to hear the case, that the provisional arrest warrant was therefore unlawful and that the applicant should be released. The prosecution disputed the applicant’s reasoning. The case was adjourned to 13 November 1998.
At the further hearing on 13 November 1998 the applicant again pleaded that the Maltese courts lacked jurisdiction to examine the extradition request as there was no extradition treaty in force between Malta and Morocco and that the Vienna Convention, although signed by Malta, had not been duly ratified in accordance with Maltese law.
On 20 November 1998 the Magistrates’ Court rejected the plea of lack of jurisdiction and declared that it had jurisdiction to hear the case. The Magistrates’ Court took into account, in particular, the applicant’s argument according to which the Vienna Convention had not been ratified as required by the Ratification of Treaties Act. It observed, however, that the said Act only provided for the ratification of certain treaties, indicated in section 3(1). The applicant argued that the Vienna Convention fell under section 3(1)(c), which imposed the ratification of any treaty affecting or concerning the relationship of Malta with any multinational organisation, agency, association or similar body. The Magistrates’ Court could not accept such interpretation, on the ground that the Vienna Convention was binding for the States which signed it, but not for the United Nations. Therefore, it could not give rise to a relationship between Malta and the United Nations. The Magistrates’ Court moreover observed that the Extradition Act authorised arrest with a view to extradition of any person accused of an offence in a “designated foreign country”. As Morocco had been designated foreign country by Legal Notice 120 of 1996, the applicant’s deprivation of liberty could not be regarded as unlawful.
On 27 November 1998 the applicant appealed to the Court of Criminal Appeal. In a judgment of 12 December 1998, the Court of Criminal Appeal found that there was no right of appeal at that stage of the proceedings under Maltese law and that an appeal was only possible when a person was subject to an order committing him to custody to await his removal. Furthermore, the applicant had filed his appeal out of time.
On 23 December 1998, while the extradition proceedings were still pending, the applicant filed an application with the First Hall of the Civil Court in its constitutional jurisdiction. He alleged that his case gave rise to violations of Article 5 §§ 1(f) and 4 of the European Convention on Human Rights. The applicant based his claim on the words “lawful arrest or detention” of a person in connection with extradition proceedings. His main argument was that Malta had not duly ratified any international treaty giving the State “legal authority” to arrest him with a view to his extradition to Morocco. As to his plea concerning Article 5 § 4, the applicant stated that there was no possibility to have the legality of the detention for extradition examined before the case was decided and an appeal lodged.
The First Hall of the Civil Court listed the case for hearing on 8 January 1999. However the case had to be adjourned to 29 January 1999 to enable the applicant’s lawyer to produce witness evidence.
In the meantime, the Magistrates’ Court, under whose order the applicant was kept in detention, continued to hear the case, in anticipation of obtaining the relevant evidence to support the extradition request from the Kingdom of Morocco. The court had a one-month time-limit in which to conclude the hearings and render its decision. This period could be extended by further periods of up to a maximum of three months by the President of the Republic.
On 15 January 1999 the applicant was discharged on the grounds that there was no evidence to justify his extradition to Morocco. The Attorney General did not appeal against the decision. The applicant was ordered by the police, acting as the Immigration Authority, to return to the Netherlands within hours.
The applicant’s application to the First Hall of the Civil Court was still pending when the applicant’s case was being heard by the Magistrates’ Court. However, on 16 January 1999 the applicant had to leave Malta, having been refused permission to stay in Malta pending the examination of his application to the First Hall of the Civil Court. On 27 January 1999 the applicant’s lawyer, who had been instructed by the applicant to file the constitutional case, requested that the Commissioner of Police, as Principal Immigration Officer, be ordered to allow the applicant to return to Malta for the hearing of the case which was pending before the First Hall of the Civil Court.
On 29 January 1999 the First Hall of the Civil Court ordered that a lawyer be appointed for the applicant. According to the applicant, under domestic law any voluntary assumption of this mandate by the lawyer who filed the application to the First Hall would imply that the person assuming it would be personally responsible to the Government of Malta for all costs and expenses incurred in the proceedings. The applicant had no relatives in Malta. Furthermore, the lawyer acting on his behalf could not assume the position of a “party” in the proceedings had he applied to act as his lawyer in addition to being his legal representative since this would have raised serious issues of professional ethics. The acceptance of a voluntary mandate would make the lawyer personally involved in the proceedings as if it were his own case.
In the event, the applicant never gave a power of attorney to a legal representative in Malta to enable his claim to be dealt with by the First Hall of the Civil Court. Furthermore, the applicant was never granted permission to enter Malta and the domestic court never ordered that permission be granted.
On 29 January 1999 the First Hall of the Civil Court adjourned the case pending the applicant’s confirmation that he intended to issue a power of attorney to a legal representative for the purposes of the proceedings.
On 3 March 1999, in the absence of the parties at the resumed hearing, the First Hall adjourned the case sine die. The applicant still could not enter the country to continue the proceedings in the Maltese courts regarding the lawfulness of his detention.
On 1 September 1999 the case was struck off the list.
B. Relevant domestic law and practice
1. Rules governing the enforceability of International treaties
Ratification of treaties by Malta is regulated by the Ratification of Treaties Act 1983 (Chapter 304). The procedure for ratification by Act of Parliament or by a resolution of the House of Representatives is laid down in section 3(2) of the said 1983 Act. According to section 3(1), this procedure applies to treaties which affect or concern:
“(a) the status of Malta under international law or the maintenance or support of such status, or
(b) the security of Malta, its sovereignty, independence, unity or territorial integrity, or
(c) the relationship of Malta with any multinational organisation, agency, association or similar body”
Section 3(3) of the 1983 Act states that:
“No provision of a treaty shall become or be enforceable as part of the law of Malta except by or under an Act of Parliament.”
The 1988 Vienna Convention has been ratified in accordance with the requirements of the above-mentioned Act only on 25 July 2000.
On 17 October 1997 in the case of Stankovic (appeal n° 346/96), the Court of Criminal Appeal held that the 1951 UN Convention on refugees could not be enforced or applied in Malta by reason that it had not been translated into domestic law by an act of Parliament or by some other instrument which derives its authority from an Act of Parliament.
2. Extradition proceedings
Extradition proceedings are regulated by the Maltese Extradition Act, which provides different rules for Commonwealth countries and designated foreign countries. Section 6 of the Extradition Act reads as follows:
“Subject to the provisions of this Act, a person found in Malta who is accused of an extraditable offence in any designated foreign country or who is alleged to be unlawfully at large after conviction of such offence in any such country, may be arrested and returned to that country as provided by this Act”.
Section 7 (1) of the said Act provides as follows:
“The Minister may by order designate for the purposes of section 6 of this Act any country with which an arrangement exists or has been made, whether before or after the commencement of this section, for the return to such country of any fugitive criminal; and any country for the time being so designated is in this Act referred to as a designated foreign country”.
By a Legal Notice no. 120 of 1996, Morocco has been designated foreign country with which an arrangement exists or has been made for the return to it of any fugitive criminal. The arrangement mentioned in the Legal Notice is the 1988 Vienna Convention, to which both Malta and Morocco are parties and which was published in Malta by Government Notice 332 in the Government Gazette of 24 May 1996.
Article 6 § 3 of the 1988 Vienna Convention reads as follows:
“If a Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of any offence to which this article applies. The Parties which require detailed legislation in order to use this Convention as a legal basis for extradition shall consider enacting such legislation as may be necessary.”
3. The remedy of habeas corpus provided by Article 137 of the Criminal Code
Article 137 of the Criminal Code reads as follows:
“Any magistrate who, in a matter within 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.”
In a judgment given on 7 January 1998, the Maltese Constitutional Court decided as follows:
“The applicant criticises the decision of the first Honorable Court on the use which could have been made of Article 137 of the Criminal Code.
The applicant reasoned as follows: “With all due respect this is an offence in itself, it is a punishment and not a remedy”.
During oral submissions applicant’s counsel made reference to a similar comment made by the European Commission on Human Rights with regard to a case still pending before the European Commission [application n° 25642/94]. ...
“The Commission further considers that, in the circumstances of the case making use of Article 137 of the Criminal Code might have led to the punishment of the public officials involved but would not have secured the rights of the applicant under Article 5 § 3 of the Convention. It follows that this is not an effective remedy, within the meaning of Article 26 of the Convention”
If one delves more deeply into the practice of a country, one will note that history is different. More than forty-three years ago, former Chief Justice J.J. Cremona was writing ... about the existence of Habeas Corpus in Malta and he traced its roots precisely on this. It is true that this remedy is not often used ... but from the fact that the remedy is not often made use of one cannot infer that the remedy does not exist. In fact recently this remedy was resorted to in the cases of El Digwi (arrest alleged to be illegal) as well as in the Cremona case (contempt of court or the air conditioner case).”
1. The applicant complains under Article 5 § 1(f) of the Convention that his arrest and detention were unlawful.
2. The applicant further complains under Article 5 § 4 of the Convention that there were no means available to him to challenge speedily his arrest and detention.
1. The applicant maintains that his arrest and detention infringed the provisions of Article 5 § 1(f) of the Convention, which states:
“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: ...
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”
The applicant emphasises that Malta has no specific bilateral extradition agreement with the Kingdom of Morocco. As to the 1988 Vienna Convention, at the time of the relevant facts Malta had not ratified it according to the provisions of the Ratification of Treaties Act. Accordingly, it could not be considered a legal basis for arrest and detention.
The Government stress that there was an extraditon treaty between Malta and the Kingdom of Morocco by virtue of, firstly, Legal Notice 120 of 1996 under which Morocco was a designated foreign country and, secondly, the 1988 Vienna Convention to which both Malta and Morocco are parties. As to the applicant’s argument that Malta has not ratified the said Convention, the Government maintain that the Convention did not require to be ratified under the Ratification of Treaties Act. Under that Act only the type of treaties indicated in Section 3(1) had to be ratified in accordance with a formal parliamentary procedure. In the Government’s submission, what regulates the entire extradition proceedings from arrest to the order for removal is not the particular extradition treaty but the provisions of the Extradition Act. The provisions of the 1988 Vienna Convention can only be invoked to the extent that it has been incorporated in a provision of the Extraditon Act. All of the requirements of the Extradition Act had been satisfied in the applicant’s case and thus his provisional arrest and detention were fully in line with Article 5 § 1(f) of the Convention. The complaint is accordingly manifestly ill-founded.
The applicant disputes the Government’s interpretation of the Ratification of Treaties Act and, relying inter alia on the case of Stankovic cited above, maintains that it is inconsistent with the interpretation given to the Act by the Maltese courts as well as parliamentary practice.
In a further submission, the Government state that the applicant failed to exhaust domestic remedies. In the first place, the applicant chose not to await the Magistrates’ Court’s decision on the merits of the extradition request. In the event of a ruling against him he could have appealed to the Court of Criminal Appeal. Instead, he immediatley applied to the First Hall of the Civil Court. Furthermore, there was nothing in Maltese law which prevented him from continuing the constitutional proceedings after his removal to the Netherlands. He simply had to give a power of attorney to a third party to represent him. The Government dispute the claim of the applicant’s lawyer that the voluntary assumption of the applicant’s case would have raised serious issues of professional ethics. In the Government’s view, the lawyer’s concerns are in effect linked to the payment of the costs of the action. They further note that the same lawyer was able to obtain and act upon a power of attorney for the purposes of the proceedings before the Court.
The applicant emphasises that under Maltese law the legal counsel who accepts a mandate before the First Hall of the Civil Court substitutes his client, becomes a party in the proceedings and therefore looses his independence. In any case, he considers that an application before the First Hall of the Civil Court could not be seen as an effective remedy. He refers, on this point, to the judgment given by the Court (Second Section) on 29 June 2000 in the case of Sabeur Ben Ali v. Malta (application no. 35892/97).
The Court considers that it is not necessary to answer the question whether the applicant has exhausted the remedies which were available to him under Maltese law, since, even if he did, this complaint would in any case be inadmissible for the following reasons.
The Court recalls that it is not in dispute that the applicant was detained “with a view to extradition” within the meaning of Article 5 § 1(f). However, it falls to the Court to examine whether the applicant's detention was “lawful” for the purposes of Article 5 § 1(f), with particular reference to the safeguards provided by the national system. Where the “lawfulness” of detention is in issue, including whether “a procedure prescribed by law” has been followed, the Convention refers essentially to the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness (see the Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgements and Decisions, 1996-V, § 118).
In this respect, the Court recalls that in laying down that any deprivation of liberty must be effected “in accordance with a procedure prescribed by law”, Article 5 § 1 primarily requires that any arrest or detention have a legal basis in domestic law (see the Dougoz v. Greece judgment of 6 March 2001, § 54, unpublished). However, these words do not merely refer back to domestic law; they also relate to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all Articles of the Convention. Quality in this sense implies that where a national law authorises deprivation of liberty, it must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness (see the Amuur v. France judgment of 25 June 1996, Reports 1996-III, § 50).
In the present case, the applicant’s detention was based on the provisions of the Extradition Act, on Legal Notice no. 120 of 1996, under which Morocco was designated foreign country, and on the 1988 Vienna Convention, to which both Malta and Morocco are parties. It is not disputed that these legal acts were sufficiently accessible and precise.
As to the applicant’s argument, according to which the 1988 Vienna Convention had no legal force by reason that it has not been ratified according to Section 3(3) of the Ratification of Treaties Act, the Court observes that there is disagreement between the parties as to the necessity of the ratification at issue. In particular, the Government allege that only the type of treaties indicated in Section 3(1) of the said Act has to be ratified following a formal parliamentary procedure, and that the 1988 Vienna Convention does not fall within the ambit of this provision. The applicant disputes this argument, on the ground that the Government’s interpretation of the Ratification of Treaties Act is inconsistent both with the case-law of Maltese courts and the parliamentary practice.
The Court has taken note of the parties’ submissions and considers that they concern a matter of interpretation of domestic law. In this respect, it recalls that, even if the Convention organs can and should exercise a certain power to review whether domestic law has been complied with, it is in the first place for the national authorities, notably the courts, to interpret and apply this law (see the Scott v. Spain judgment of 18 December 1996, Reports 1996-VI, § 57, and the N.C. v. Italy judgment of 11 January 2001, § 42, unpublished). In the present case, nothing shows that the interpretation proposed by the Government and followed by the Magistrates’ Court in its decision of 20 November 1998 is arbitrary or otherwise incompatible with the aim of Article 5. Moreover, the applicant has not produced any domestic decision showing that the non-ratification of the Vienna Convention was an obstacle to its enforceability or applicability in Malta. The case of Stankovic, quoted by the applicant, concerns the 1951 UN Convention, and not the 1988 Vienna Convention. The fact that the latter was subsequently ratified according to a formal parliamentary procedure does not necessarily affect its lawfulness and enforceability for the period before its official ratification.
In the light of the above, the Court is satisfied that the applicant's deprivation of liberty was ordered "in accordance with a procedure prescribed by law" and was "lawful" within the meaning of Article 5 § 1(f) of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant complains that there were no means available to him to challenge speedily his arrest and detention. He invokes 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.”
The applicant submits that the Magistrates’ Court which had issued the provisional arrest warrant could not review the legality of its own decision since it was dealing with the merits of the extradition request. Furthermore, as shown by the decision of 22 December 1998 of the Court of Criminal Appeal, it was only possible to seek a remedy from the latter court after an extradition order had been made by the Magistrates’ Court. Nor could the application to the First Hall of the Civil Court be considered a speedy remedy. Although the application was filed on 23 December 1998 the first hearing only took place on 8 January 1999 and the case was then adjourned to 29 January 1999, by which date the applicant had already been released.
The Government state that the legal basis of the provisional arrest warrant as well as the lawfulness of the applicant’s subsequent arrest and detention were speedily reviewed by the Magistrates’ Court which gave its decision on 20 November 1998, just seven days after the applicant had raised the plea of illegality. The fact that no appeal against that decision lay to the Court of Criminal Appeal is irrelevant for the purposes of compliance with Article 5 § 4. The Government further submitted that, in any event, the duty magistrate satisfied himself as to the legality of issuing a provisional arrest warrant against the applicant. The magistrate’s review was conducted with respect to the terms of the Extradition Act and the information laid before him by the authorities. That judicial decision complied with the requirements of Article 5 § 4.
In a further submission, the Government state that the applicant failed to exhaust domestic remedies. They observe that under Article 137 of the Criminal Code, everyone who wants to challenge the lawfulness of his arrest or detention may have recourse to the so-called habeas corpus procedure. Moreover, at the time the Court gave ist judgment in the case of Aquilina v. Malta (see judgment of 29 April 1999, Reports 1999-III, §§ 33 and following), it was uncertain whether the remedy under Article 137 of the Criminal Code could be invoked with respect to arrests alleged to be unlawful for reasons other than an arrest beyond the fourty-eigth hours time-limit. However, this uncertainity has been cleared by the above cited judgment of 7 January 1998, in which the Maltese Constitutional Court stated that the remedy of habeas corpus is available in all cases of alleged unlawful arrest.
The Governement furthermore submitted that this part of the application should be declared inadmissible for the same reasons underlined under Article 5 § 1. Indeed, the applicant had raised the issue of breach of Article 5 § 4 of the Convention in his application of 23 December 1998 before the First Hall of the Civil Court. As mentioned above, he decided not to purse these proceedings and his action was declared deserted. In the Government’s view, the applicant’s inertia is tantamount to wilful failure to exhaust domestic remedies.
The applicant underlines that he had raised his objection concerning the lack of jurisdiction of the Magistrates’ Court on 3 November 1998, and that a decision on this issue was given on 20 November 1998, which is seventeen days later.
As concerns the remedy under Article 137 of the Criminal Code, the applicant affirms that there is not one single case showing that this provision has been utilized as a remedy with some success. He refers, on this point, to the judgments given by the Court in the cases of Sabeur Ben Ali, Aquilina and T.W. v. Malta.
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 (see Sabeur Ben Ali v. Malta, application n° 35892/97, decision of the Court (Second Section) of 6 July 1999, unpublished).
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. 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 complaint that that there were no means available to him to challenge speedily his arrest and detention;
Declares inadmissible the remainder of the application.
Erik Fribergh Christos Rozakis
The Court has examined the parties’ submissions. It considers that the Governments’ objection of non-exhaustion should be understood in the sense that if the applicant had invoked section 137 of the Criminal Code or pursued his application of 23 December 1998 before the First Hall of the Civil Court, he would have obtained a review of the lawfulness of his detention satisfying the requirements of Article 5 § 4 of the Convention. This argument goes directly to the issue of compliance with that provision. Accordingly, the Governments’ preliminary objection is to be joined to the merits (see, mutatis mutandis, the Aquilina v. Malta judgment, quoted above, § 41).
KADEM v. MALTE
KADEM v. MALTE