*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.